Under the Hindu Succession Act, agnates have precedence over cognates in inheriting the property of the deceased, and the competence of the deceased to bequeath ancestral property is upheld.

1. In this Regular Second Appeal, the appellants have challenged the judgments and decrees of the Courts below dated 15-12-1981 and 5-1-1984 whereby suit of the plaintiffs (appellants herein) was dismissed and the appeal preferred by them before the lower Appellate Court also met with the same fate.

2. The brief facts of the case are that Ram Lal and Sant Ram plaintiffs filed a suit for possession of land measuring 47 kanals; 3 marlas as fully described in the plaint, situated within the revenue estate of village Gill, Tehsil Dasuya, District Hoshiarpur. The plaintiffs claimed that they along with defendant Nos. 3 and 4 are entitled to inherit the estate of Bhola son of Attra who died on 31-10-1977 issueless as he was unmarried.

3. Defendant Nos. 1 and 2 contested the claim of the plaintiffs/appellants and filed written statement wherein they denied the claim of the plaintiffs to inherit the property of deceased Bhola. It was asserted that Bhola had executed a valid Will dated 29-8-1962 in their favour (defendant Nos. 1 and 2) and hence they are rightfully in possession of the property, mutation of which had also been sanctioned in their favour. It was further denied that the plaintiffs are the legal heirs of the deceased Bhola. On the basis of pleadings of the parties, the following issues were framed by the trial Court :-

1. Whether the plaintiffs are the legal heirs of Bhola-deceased ? OPP.

2. Whether Bhola-deceased executed a valid Will dated 29-8-1962 in favour of defendants No. 1 and 2 ? OPD.

3. Relief.

4. The trial Court after appreciating the oral as well as documentary evidence, returned the findings on issue No. 1 in favour of the plaintiffs/appellants. However, on issue No. 2, it was held that the Will dated 29-8-1962 had been validly executed in favour of defendant Nos. 1 and 2. Therefore, the findings on issue No. 2 was returned in favour of defendant Nos. 1 and 2 and consequently, the suit was dismissed.

5. The plaintiffs challenged the judgment and decree before the lower Appellate Court. The lower Appellate Court reversed the findings on issue No. 1 and held that defendant Nos. 1 and 2 being Agnates are preferential heirs of Bhola-deceased vis-a-vis the plaintiffs and defendant Nos. 3 and 4 who are Cognates of Bhola-deceased. However, findings on issue No. 2 were affirmed. Consequently, the appeal was dismissed. The plaintiffs have challenged the judgments and decrees passed by both the Courts below in this Regular Second Appeal.

6. I have heard Shri Jagdish Manchanda, learned counsel for the plaintiffs/appellants and Shri J. S. Toor, learned counsel for the respondents and have perused the record. Learned counsel for the appellants submitted that the following substantial questions of law arise in this appeal :-

(i) Whether the Will executed by Bhola in favour of defendant Nos. 1 and 2 is a valid Will ?

(ii) Whether the Will has been proved as per the provisions of the Evidence Act?

(iii) Whether the ancestral property can be Willed out in favour of stranger instead of in favour of the legal heirs ?

(iv) Whether the respondents are having preferential right of deceased Bhola than the present appellants ?

7. To determine the question whether the defendant Nos. 1 and 2 are Agnates of Bhola-deceased and are entitled to inherit the property of deceased Bhola instead of the plaintiffs and defendant Nos. 3 and 4 who are his cognates, it would be proper to reproduce the pedigree table and the relevant provisions of the Hindu Succession Act, 1956 (for short, the Act ). The pedigree table is reproduced as under :-

8. It is not disputed that Bant Ram and Hari Dass are sons of Joti and this fact also finds mention in Will Exhibit DW-3/A. As per entries in Jamabandi for the year 1922-23. Joti is shown to be son of Ram Ditta and as per pedigree table Exhibit DA. Ram Ditta is son of Chetu who is real brother of Megha. Both Chetu and Megha are sons of Bonsa. On perusal of the above pedigree table it is thus clear tha