IMPORTANT POINT
Hindu Joint Family Property--Merely a coparcener living separately from other members cannot lead to a presumption of destruction of Joint Hindu Family property.
Ancestral Coparcenary Property--Family settlement--Will--Will could not be said to be a family settlement to bequeath property after death

Vinod K.Sharma, J.

1. This is defendants regular second appeal against the judgment and decree dated 11.6.1990, passed by the learned lower appellate Court, vide which the suit for declaration, filed by the plaintiff/respondent No.1, was ordered to be decreed.

2. The plaintiff filed a suit against the defendant/appellants, on the pleadings, that Sh. Attru was the original owner of the suit land, which was inherited by Rachan Singh, father of the plaintiff and defendant No. 1 and grandfather of defendants No. 2 and 3. The suit property was said to be ancestral Joint Hindu Family Property. Defendants No. 1 and 3 and one Lakhmir Singh son of Sher Singh were said to be the members of the Joint Hindu Family. The plaintiff claimed the right in the property by birth and further pleaded, that if during the lifetime of Rachan Singh, notional partition had taken place, the plaintiff would have got l/3rd share of the property. Rachan Singh, during his lifetime, executed a Willdated 15.4.1985 of the property in favour of the plaintiff and defendants No. 1 to 3. As per the Will, three acres of land out of his share was willed away in favour of the plaintiff in addition to his own share. These three acres of land were situated at village Teera. Similarly, another three acres of land was willed away by Rachan Singh in favour of Sher Singh, his other son, who is defendant No. 1, in addition to his own share. Whereas, in village Jhampur all the properties falling to the share of Rachan Singh, were bequeathed in favour of defendants No. 2 and 3 i.e. the grandsons. The assertion made by the plaintiff was, that he became owner of l/3rd share of the land in village Thaska and l/3rd share of the land in village Jhampur total measuring 120 kanals 9 marlas, and as absolute owner of the land situated in village Teera, measuring 23 kanals 19 marlas, including the land in his possession as his share in village Teera. In case, defendant No. 1 claimed l/3rd share in the land at village Teera, then the plaintiff was entitled to 1/3rd share plus 16 kanals of land at village Jhampur and these 16 kanals were to be deducted out of the share of Rachan Singh. So, the share of plaintiff at village Jhampur in the landed property becomes 1483/2409. The case of the plaintiff/respondent No. 1 was, that the Will dated 15.4.1985 was being interpreted, as if Rachan Singh was an absolute owner of the suit property. The defendants were said to be in hurry to get the mutation sanctioned on the basis of Will, whereas according to law, he was entitled to the land claimed by him.

3. The defendants contested the suit. It was pleaded in the written statement that Sarja Singh, plaintiff, did not have any son and only one daughter, whose marriage was performed by Rachan Singh by incurring all the expenses. Sarja Singh did not take interest in the family affairs and did not serve his father, rather he tried to create family problems. With this view an arrangement was made with the consent of Sarja Singh and Willdated 15.4.1985 was executed by Rachan Singh, under a family settlement. It was also pleaded case, that Rachan Singh had also filed a complaint in the Court of Judicial Magistrate 1st Class on 5.7.1985, where he affirmed the validity of Will. The defendants claimed, that the suit property was not Joint Hindu Family coparcenary property and, in fact, was self-acquired property of Rachan Singh. The plaintiff was not member of the coparcenary and even on notional partition, the plaintiff would have taken l/4th as one share would have gone to the wife of Rachan Singh, namely, Bachan Kaur. The execution of Will dated 15.4.1985 in favour of plaintiff and defendants No. 1 to 3 was admitted wherein three acres of land was given to plaintiff in village Jhampur. Sarja Singh, plaintiff, was given the total land of village Teera i.e. three acres and 1 kanal 11 marlas in village Jhampur. Kuldip Singh and Saudagar Singh were given total land of village Thaska, which was about 3/4