Judgment

Chandeasekhara Aiyar J.- The pltf. Arjan Singh alias Puran, brought a suit in the Ct. of the Subordinate Judge, Jullundur, against Inder Singh, Kartar Singh & five others, for a declaration that a will executed by deft. 1, Inder Singh, in favour of deft. 2, Kartar Singh, about 14 years ago was null & void as against the pltf., who was deft, 1 s reversionary heir after his death. The plaint comprised a half share of land measuring 395 kanals in the village of Kadduwal, another half share of land measuring 837 kanals & 11 marlas in the village of Pattar Kalan, & four houses in the latter village. In the pedigree attached to the plaint showing the relationship of the parties, the pltf, claims Sehja Singh as his 4th ancestor. Jodha Singh & Jai Singh are shown as Sehja Singh s sons. Defendant 1, Inder Singh, is Jodha Singh s grandson. It is alleged that the parties are Jat agriculturists governed by the customary law in matters of alienation of ancestral property & succession & that as a sonless proprietor under this law is not competent to make a will in respect of his ancestral property, when there are collaterals up to the 5th degree, & as the entire property mentioned in the plaint was ancestral, the will made by deft. 1 in favour of deft. 2 who claimed to have been adopted by deft, was invalid & ineffectual. Plaintiff was born on 22-7-1919, & was a minor when the will was made, & so the suit was within time.

2. The suit was contested mainly by deft. 2, Kartar Singh, who set up his adoption & pleaded that the properties were not at all ancestral as regards the pltf. Defendants 3 to 7 remained exparte.

3. At the trial, it was admitted that the land situated in Kadduwal was not proved to be ancestral. The Subordinate Judge held that even the land in Pattar Kalan was not shown to be ancestral by the evidence adduced on the side of plts., as it was found that the common ancestor, Sehja Singh, had not only two sons called Jodha Singh & Jai Singh, but a third son named Pohlo, & that from the mere fact that the two sons enjoyed the land in equal shares, no presumption could arise that the property was ancestral & descended by inheritance from the common ancestor, when nothing was known about the share of the third son. He recorded findings in favour of the pltf. on the issues as to adoption & limitation, but be also held that the pltf, had no locus standi to contest the validity of the adoption as the period of limitation had expired long before be was born. In the result, the suit was dismissed.

4. The pltf. preferred an appeal to the Ct. of Dist. J. He filed an appln. under O. 41, R. 27 & S. 151 Civil P. C. for leave to adduce additional evidence. The document be wanted to be taken on record & considered, & of which it was alleged that be was not aware at the trial, was a kami-beshi statement relating to Mauza Pattar Kalan, which contained a note that the third son, Pohlo, gave up his interest in the ancestral property in favour of his brothers. A copy of the statement was filed along with the appeal memo. The appln. was naturally opposed on behalf of the contesting defts. who urged that the pltf. applt, had ample opportunity to produce all his evidence in the lower Ct. to prove that the property was ancestral & that the entry on which reliance was now sought to be placed appeared on the face of it to be a forged one. The Dist. J. posted the appln. to be heard along with the appeal itself. On 17-3-1942, that is, even before he heard the appeal, the Dist. J. allowed the apptn. Referring to the two entries found in the naqsha kami beshi prepared in 1849-50 & the muntakhib asami-war prepared in 1852, which stated that Pohlo had relinquished his ancestral share, he observed : "These two entries taken together if found genuine, would enable the Ct. to arrive at a just conclusion. It is, therefore, in the interest of justice that the 195 additional evidence should be let in. I have taken action under O. 41, R. 27 (1)(b), Civil P.