The execution of a Will for ancestral property and the requirement for issue-wise findings under the Code of Civil Procedure were central legal principles in the judgment.

JUDGMENT :

Tarlok Singh Chauhan, J.

The plaintiff is the appellant, who after having lost before both the learned Courts below, has filed the instant appeal.

The parties shall be referred to as the ‘plaintiff’ and the ‘defendant’.

2. Brief facts of the case are that the plaintiff filed a suit for declaration to the effect that the parties are joint owners in possession of land measuring 1-55-55 hectares, bearing Khewat No. 28, Khatauni No. 53, Khasra Nos. 183, 208, 212, 213, 261, 278, 279, 315, 316, 394, 401, 406, 406/1, 418, 420, 422, 429, 450, 467, 468, 469, 470 and 484, Kitas 23, as per Nakal Khatauni Bandobast for the year 1990-91, situated in village Dain, Tehsil Bangana, District Una, H.P. in equal shares and mutation No.4, dated 30th August, 1991 sanctioned on the basis of alleged Will of Churu to the extent of 2/3rd share in favour of the defendant is not binding on the plaintiff as Churu alias Chur Singh never made a Will nor he could make a Will with respect to the suit land which was an ancestral coparcenary property in his hand. It was further averred that the Will dated 7.12.1989 is not a legal and valid Will. Consequential relief of permanent injunction restraining the defendant from dispossessing the plaintiff from his half share in the suit property and from raising any sort of construction or change its nature in any manner was also sought.

3. The defendant contested the suit by filing written statement wherein he denied that the suit property was ancestral or coparcenary joint Hindu property. The property was stated to be the self-acquired property in the hands of Churu alias Chur Singh and the parties were stated to have succeeded the same on the basis of the Will. It was further claimed that Churu alias Chur Singh during his life time had borrowed money for the marriage of the plaintiff from one Lachhman and the plaintiff had not paid any amount towards the debt so incurred or he agreed to pay the half of the amount. The said amount was paid by the defendant. Moreover, the plaintiff was stated to be living separately from his father after his marriage, whereas the defendant had helped the deceased Churu alias Chur Singh in the cultivation of the land and had further rendered services to the deceased whole heartedly while the plaintiff had never cared for his father. It was also averred that the parties were ‘Jat’ by Caste and governed by the agricultural custom and rules of succession. It was further averred that even if the property is not proved to be self-acquired even then the rule of survivorship does not apply.

4. From the pleadings of the parties, the learned trial Court framed issues No.1 to 4 on 14.5.1992 and thereafter additional issues were framed by the learned first Appellate Court on 31.12.2003 and the issues framed on both these dates are as under:

1. Whether the suit land is ancestral coparcenary joint Hindu family property, if so, to what effect? OPP

2. Whether Sh. Chuhru @ Chuhar Singh executed a valid Will dated 7.12.89 as alleged, if so, to what effect? OPD

3. Whether the plaintiff has no cause of action to file suit? OPD

4. Whether the suit is not maintainable in the present form? OPD

4A. Whether the suit property was self acquired property by the father of the parties to the lis name Sh. Chuhru @ Chuhar Singh as alleged? OPD

4B. Whether the parties to the lis being Jat by caste and governed by agriculture custom and rule of succession, if so, its effect? OPD

4C. Whether the pedigree table as set up by the plaintiff showing the relationship of the parties to the lis with their ancestors is not correct as alleged? OPD

4D. Whether the suit is not correctly valued for the purposes of Court fee and jurisdiction? OPD

5. Relief.

5. After recording the evidence and evaluating the same, the learned trial Court dismissed the suit filed by the plaintiff, constraining him to file an appeal before the learned first Appellate Court, which too, came to be dismissed vide judgment and decree dated 30.9.2008.

6. It is a