Important Point – Ancestral land cannot be subject matter of bequest.

1. This Regular Second Appeal under Section 100 of Code of Civil Procedure has been filed by the appellant/plaintiff assailing the judgment dated 31st October, 2011 whereby the First Appellate Court allowed the appeal bearing RCA No.2/2010 preferred by the respondents/defendants against the judgment and decree 29th May, 2010 passed by learned Trial Court in Civil Suit No.17/09.

2. As a result of the impugned judgment by the First Appellate Court, the suit of the appellant/plaintiff which was decreed by the learned Trial Court, stands dismissed.

3. By filing the Civil Suit No.17/2009, the appellant/plaintiff sought a decree of declaration and injunction challenging the two Wills executed by his father in favour of his two brothers namely Sh.Mahender Singh and Sh.Sri Kishan bequeathing the land allotted to him (father) to his two brothers to the exclusion of the appellant/plaintiff.

4. The facts, in brief, are that Civil Suit No.17/2009 was filed by Sh.Om Prakash seeking decree of declaration and permanent injunction impleading the beneficiaries of the two Wills executed by Sh.Chander i.e. Sh.Sri Kishan and his wife as defendants as No.1 & 2. Since Sh.Mahender Singh had expired, his three sons namely Satish Kumar, Dinesh Kumar & Avan Kumar were impleaded as defendants No.3 to 5. The above Civil suit was filed pleading as under:

(i) Sh.Chander Singh was a allotted a agriculture land measuring 4 Bigha, comprising Khata No.108/108, Khasra No.33/17 Min situated in the revenue estate of Village Khera Dabar, New Delhi, under Twenty Point Programme of the Government and he was declared Bhumidhar.

(ii) Sh.Chander Singh expired on 2nd January, 1997 and Sh.Mahender Singh, brother of the appellant/plaintiff expired in the year 2003.

(iii) The appellant/plaintiff happened to visit the office of Halqa Patwari on 21st September, 2007 where he came to know that instead of equal distribution amongst all the legal heirs the land allotted to his father has been mutated in the name of the defendants/respondents.

(iv) The prayer made in the civil suit is to the following effect:

“(I) Pass a Decree of Declaration the Wills dated 17th December, 1996 allegedly executed by Late Sh. Chander S/o Late Sh.Hosyare as Null and Void.

(II) That Pass a Decree of Permanent Injunction in favour of the Plaintiff and against the Defendants thereby restraining the Defendants, their agents, successors, representatives, anybody working on their behalf for using the alleged Wills dated 17th December, 1996 in any works/proceedings etc.

(III) Award cost of the suit in favour of the Plaintiff and against the Defendants.”

5. The suit was contested by filing the joint written statement by the respondent/defendants taking the preliminary objections that the suit is barred by limitation as the execution of WILL by father was within the knowledge of the appellant/plaintiff since beginning.

6. On merits it has been contended that apart from Sh.Chander (father of the plaintiff), the plaintiff was also allotted One Acre land by the Gaon Sabha under the Twenty Point Programme. The other two brothers namely late Shri Mahender Singh i.e. father of the defendants No.3 to 5 and Sri Krishan i.e. defendant No.1 were not given any land under the Twenty Point Programme. As the appellant/plaintiff was already having one acre of land and his two other brothers were not having any land, by virtue of Wills registered on 17th December, 1996 Sh.Chander divided one acre of land allotted to him between his other two sons namely Sh.Mahender Singh and Sh.Sri Kishan.

7. On the pleadings of the parties, the following issues were settled by the learned Trial Court on 15th April, 2009:-

‘(1) Whether the suit of the plaintiff is barred by limitation? OPD.

(2) Whether Wills dated 17.12.1996 of late Sh.Chander were validly executed? OPP.

(3) Whether the plaintiff is entitled for the relief of declaration? OPP.

(4) Whether the plaintiff is entitled for the relief of permanent injunction? OPP.

(5) Relief.’

8. Howeve