The restrictions on the alienation of ancestral property in the hands of a male holder governed by the customary law of the Punjab have not been abrogated by the Hindu Succession Act, 1956.

D.K.Mahajan, J.

1. This second appeal at the time of its preliminary hearing was admitted by me to a Division Bench subject to the directions of my Lord the Chief Justice. That is how the matter has come up before us,

2. The facts giving rise to this appeal are not in dispute. Maghar Singh was the last male holder of the property in dispute. He is a Jat and belongs to A predominantly agricultural tribe. Indeed it is not disputed that the parties are governed by the Customary Law of the Punjab in matters relating to succession and alienation. Maghar Singh died in the middle of 1959 without leaving any male or female descendants or a widow. His nearest relation is the plaintiff Jaggar Singh alias Ujagar Singh, who is his real brother. Maghar Singh before his death executed a will on the 22nd of May, 1959, whereby he bequeathed his entire property to Kaur Singh. Kaur is not related in any way to Maghar Singh and in any case he is not a preferential heir to the plaintiff Jaggar Singh alias Ujagar Singh though it is stated in the will that he (Kaur Singh) is a relation but what that relationship is, is not stated.

In pursuance of the will, Kaur Singh took possession of Maghar Singhs estate. This led to the present suit by Ujagar Singh for possession of the property on the ground that the property being ancestral he is entitled to succeed to it, being the next heir. In defence, Kaur Singh set up the will executed by Maghar Singh in his favour and disputed that the property was ancestral. He also pleaded that even if the property was ancestral, Maghar Singh could will it away. In replication, Ujagar Singh disputed the execution of the will. On the pleadings of the parties, the following issues were framed: 1. Whether Maghar Singh deceased executed the will dated the 22nd of May, 1959, in favour of Kaur Singh defendant? If so, to what effect?

2. Whether the property in dispute is ancestral qua the plaintiff?

3. If issue No. 2 is proved in favour of the plaintiff, whether the deceased Maghar Singh was not competent to transfer the property by means of will under law and custom?

4. Whether the parties are governed by custom in matters of alienation? If so, what that custom is?

5. Whether the plaintiff is the next heir of the deceased Maghar Singh?

The trial Court came to the conclusion that Maghar Singh had executed the will dated the 22nd of May, 1959, in favour of Kaur Singh defendant, that the property was ancestral, that Maghar Singh was not competent to dispose of his ancestral property by will either under law or custom, that the parties were governed by custom in matters of alienation and according to that custom ancestral immovable property could not be disposed of by will and the plaintiff Ujagar Singh was the next heir of Maghar Singh.

Dissatisfied with this decision, Kaur Singh appealed to the District Judge, Sangrur, and the appeal was heard by the Additional District Judge, Sangrur, who affirmed the decision of the trial Court. Against this decision, the present second appeal has been preferred to this Court and on a reference to a Division Bench, as I have already stated, it has been placed before us for disposal.

3. The only question that has been debated before us is that in view of the provisions of the Hindu Succession Act, Maghar Singh could dispose of his ancestral immovable property by will. Before dealing with the respective contentions o£ the parties, it will be proper to set out the relevant provisions of the Hindu Succession Act hereinafter called the Act. These are Sections 2, 4, 6 and 30, and are as follows:

"2. (1) this Act applies-- (a) to any person, who is a Hindu by religion in any of its forms or developments, including a Virashaive, a Lingayat or a follower of the Brahme, Prarthana or Arya Samaj,

(b) to any person who is a Buddhist, Jain or Sikh by religion, and

(c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not ha