The main legal point established in the judgment is that the legal representatives of a deceased plaintiff can seek amendments to the plaint that were available to the deceased plaintiff.

Ajay Mohan Goel, J.

1. This appeal has been filed against judgment and decree dated 27.02.2006 passed by learned Additional District Judge, Fast Track Court, Kangra at Dharamshala, in Civil Appeal No. 157-G/04/01 titled Smt. Swarna Devi Vs. Smt. Ruko & Ors., whereby the learned Appellate Court has affirmed the judgment and decree passed by learned Sub Judge First Class (1), Dehra, dated 23.10.2000 in Civil Suit No. 25 of 1988 titled Gian Chand Vs. Swarna Devi & Ors.

2. This appeal was admitted on 27.02.2007 on the following substantial question of law:-

“Whether the amendment of plaint allowed by the trial Court at the instance of the legal heirs of Gian Chand after the death of original plaintiff Gian Chand, thereby permitting them to substitute the earlier plea that the parties were governed by custom in the matter of alienation and succession by the plea that the parties are Hindus and the suit property was coparcenery property, was illegal?”

3. Gian Chand, predecessor-in-interest of the present respondents, filed a suit dated 16.01.1988 for declaration to the effect that he is owner to the extent of 1/3rd share and in joint possession of the suit land measuring 3-39-48 Hecs., situated in Muhal Ucchar Mauza Amb, Tehsil Dehra, District Kangra, H.P. and Will dated 16.02.1981 purported to have been made by Shri Sant Ram deceased father of the plaintiff in favour of defendant No.1, is false, fabricated and is result of misrepresentation and coercion and also against the natural mode of succession and against Kangra custom and same does not affect the right of the plaintiff to succeed to the estate of the deceased to the extent of 1/3rd share. He also prayed for decree of permanent injunction restraining defendant No. 1 from changing the nature of the suit land in any manner, cutting, felling and removing any tree from the suit land, alienating any part of the suit land by way of sale, gift or mortgage or in any other manner.

4. The case set up by the plaintiff was that the suit land was owned and possessed by the father of the plaintiff and defendants late Sant Ram, who died on 17.11.1987 and is survived by the plaintiff (son) and defendants (daughters) and that all three heirs are entitled to succeed to property of the deceased in equal shares. He further stated that defendant No. 1 was a very clever lady and she had set up a false and fabricated Will purported to have been executed by Sant Ram deceased in her favour in respect of his entire property. The plaintiff further contended that the said Will if proved to have been executed by Sant Ram is the result of fraud, misrepresentation and coercion and the same does not effect the right of the plaintiff to succeed to the extent of 1/3rd share in the suit land. It was further mentioned that in case Will is proved to have been executed by the deceased of his free volition even then it does not affect the right of the plaintiff to succeed to the suit land to the extent of 1/3rd as the land was ancestral qua the deceased and the parties who are ‘girths’ by caste are governed by the Kangra custom in the matter of succession and alienation, according to which, no male member can alienate his property to exclusion of his male lineal descendant. Therefore, according to him, even if the Will is proved to have been duly executed it does not affect the right of the plaintiff to succeed to the suit land to the extent of 1/3rd share.

5. Written statement was filed to the suit by both the defendants. Whereas, defendant No.1 contested the suit, defendant No. 2 admitted the contents of the plaint. Defendant No. 1 in her written statement denied that deceased Sant Ram was survived by plaintiff and defendants or that all the three heirs were entitled to succeed to the property of the deceased in equal shares. The said defendant also denied that she being a clever lady had set up a false and frivolous Will executed by Sant Ram deceased. According to defendant No. 1, she being daughter of San