JUDGMENT :

Anil Kshetarpal, J.

1. Factual Matrix:-

1.1 The defendant assails the correctness of concurrent findings of fact arrived at by the Courts below while decreeing plaintiffs suit for grant of decree of possession with respect to land measuring 28 kanal and 4 marlas located in Village Marwa Khurd, Jagadhari. In fact, the First Appellate Court has slightly modified the trial Court decree.

1.2 The dispute in this litigation is with respect to property left behind by late Sh. Bharat Singh, who died on 01.06.1979.

1.3 At this stage, it will be appropriate to draw a family tree to understand the inter se relationship of the parties.

1.4 The plaintiffs claim the property on the basis of natural succession, whereas, defendant-appellant claims the property on the basis of Will dated 28.07.1970, allegedly executed by Sh. Bharat Singh. The plaintiffs also claim that the property is ancestral in nature and the parties were governed by customary law, hence, it could not be bequeathed through Will. The residential house of Sh. Bharat Singh is in possession of the plaintiffs.

1.5 The defendant contested the suit claiming that plaintiffs are neither in possession of the house nor they are in possession of the agricultural land. The Will dated 28.07.1970 bequeathing the entire property in favour of defendant was executed by Sh. Bharat Singh while specifically excluding the plaintiffs from inheritance. The last rites of Sh. Bharat Singh were also performed by the defendant and defendant also denied applicability of custom. It was claimed that Sh. Bharat Singh being the issueless proprietor had right to bequeath the property by way of testamentary disposition. The defendant is within fourth degree ancestry as he is the great grand-son of Sh. Udhmi and hence had preferential right even if the property is ancestral because the plaintiffs are in the fifth degree ancestry.

1.6 The trial Court partly decreed the suit. It was held that except land measuring 4 marla comprised in Khasra No.56//1/2, the remaining property is ancestral, which could not be disposed of as per customary law by way of testamentary disposition, hence, the suit was decreed qua 28 kanals land. The First Appellate Court dismissed the defendants' appeal, whereas, allowed the cross-objections filed by the plaintiffs.

2. Analysis of the First Appellate Court's judgment:-

2.1 This Bench has heard the learned counsel representing the parties at length and with their able assistance perused the paperbook.

2.2 In the opinion of the Court, it would be appropriate to first of all decide about the validity of Will executed on 28.07.1970, allegedly executed by Sh. Bharat Singh. The aforesaid Will is part of the requisitioned record. A careful perusal of the Will Ex.D-1 proves that it has been scribed on a judicial paper, thumb marked by Sh. Bharat Singh at two different locations. Firstly, Sh. Bharat Singh thumb marked it on left hand margin, whereas, he has also thumb marked it at the bottom of the page. It is attested by two attesting witnesses namely Sh. Genda Ram, who has appended his LTI and signed by Sh. Chaudhary Arjan Singh, Sarpanch, Gram Panchayat, Dharamkot. Both the attesting witnesses namely Sh. Genda Ram and Sh. Arjan Singh have been examined. Sh. Fakir Chand, scribe has also been examined. Both the witnesses have stated that the Will was scribed on the instructions of Sh. Bharat Singh, who signed the same after it was read over by the scribe. DW-2 Sh. Fakir Chand has stated that the Will is scribed by him and it has been entered in his register. Sh. Bharat Singh not only signed the Will but also signed in his register at Serial No.703 dated 28.07.1970, which was brought by him. DW-3 Sh. Arjan Singh stated that he has signed Ex.D-1, which was scribed on the instructions of Sh. Bharat Singh and Sh. Bharat Singh signed the will while accepting it to be true after the scribe had read over the Will. Similarly DW-4 Sh. Genda Ram has stated that the Will was scribed in his presence, wh