JUDGMENT
Satish Kumar Mittal, J.
1. The instant Regular Second Appeal has been filed by the plaintiffs. Both the Courts below have dismissed their suit for possession filed by them regarding the land in question measuring 55 Kanals 6 Marias.
2. The land in question belongs to one Mula Singh and the plaintiffs claimed it on the basis of inheritance. It was alleged by them that they are father’s brother’s sons of Mula Singh. Mula Singh expired on 4.4.1975 leaving behind him no male or female issue or his widow. It was alleged that the plaintiffs performed his last rites and after his death, they succeeded to his estate including the land in question. It was further alleged that defendant No. 1 got executed one Will in his favour from the said Mula Singh. The said Will was not validly executed and even if the same was validly executed, it was a void document as it related to the ancestral property. It was also alleged that the defendants have entered into unlawful possession of the land in question.
3. The defendants contested the instant suit. It was pleaded that Mula Singh executed a valid Will dated 12.3.1973 in favour of defendant No. 1, by virtue of which he had become owner of the land in question. It was further averred that defendants No. 2 and 3 were in permissive possession of land in question from defendants No. 1. It was pleaded that the aforesaid Will was validly executed and the plaintiffs were having no locus standi to file the instant suit, as they are not related to Mula Singh deceased, it was admitted that Mula Singh died leaving behind no issue or widow. It was alleged that he was competent to bequeath his property by way of Will dated 12.3.1973. It was further pleaded that the parties are Jats and are being governed by custom and not by Hindu Law.
4. On the pleadings of the parties, the learned trial Court framed the following issues;-
1. Whether the plaintiffs being the legal representatives of Mula Singh have locus standi to file this suit? OPP
2. Whether Mula Singh executed valid will in favour of Lakhbir Singh, defendant No. 1? OPD.
3. Whether the land in dispute is ancestral property? OPD
4. Whether the parties are governed by custom? OPD
5. Whether the parties are governed by Hindu law? OPP
6. Whether the suit is properly valued for the purposes of court fee and jurisdiction? OPP
7. Relief.
5. The learned trial court, after considering the respective evidence led by both the parties, held that the registered Will dated 12.3.1973 (Ex.D1) was validly executed by Mula Singh while in sound disposing mind. It was further held that though the plaintiffs were among the legal representative of Mula Singh but they did not have any locus standi to file the instant suit because regarding the land in question Mula Singh had executed a valid and genuine Will in favour of Lakhbir Singh defendant No. 1. On issue No. 3, it was held that the land in question was ancestral property of Mula Singh. It was also held that Mula Singh deceased and the parties to the suit were Jats, therefore, they were being governed by custom and not by Hindu Law.
6. Feeling aggrieved against the aforesaid judgment and decree, the plaintiff filed appeal before Additional District Judge, which was also dismissed. Before the learned first appellate court, the plaintiffs did not assail the findings recorded by the learned trial court on issue No. 1 i.e., regarding validity of the Will executed by Mula Singh in favour of defendant No. 1. However, the finding of the learned trial court on issues No. 3 and 4 that the parties were being governed by custom and not by Hindu Law were challenged. It was alleged that the parties were being governed by Hindu Law in the matter of inheritance and since the land in question was ancestral property of Mula Singh, therefore, he was not competent to bequeath the said property by executing a Will in favour of defendant No. 1. The findings of the learned trial court that the plaintiffs were having no locus standi to file the instant suit was challenged by alleging that they have established their relationship with Mula Singh deceased. The learned first appellate court rejected their contention by holding that the plaintiffs have failed to establish on record that they were father’s brother’s sons of deceased Mula Singh. In that situation, they do not have any locus standi to file the instant suit.
7. Feeling aggrieved against the aforesaid judgment and decree passed by the learned first appellate Court, the plaintiffs have filed this Regular Second Appeal.
8. I have heard the arguments of learned counsel for the appellants and have perused the records of the case.
9. Learned counsel for the appellants did not contest the finding recorded by both the Courts below on issue No. 2 relating to execution as well as validity of the registered Will by Mula Singh in favour of defendant No. 1. He submitted that both the Courts below have held that the land in question was the ancestral property of deceased Mula Singh as well as parties to the litigation were not being governed by custom but by Hindu Law, In this regard, he referred to the Full Bench decision of the Court in Pritam Singh v. The Assistant Controller, (1976)78 P.L.R. 342, wherein it was held that after the enactment of the Hindu Succession Act, all the customs pertaining to succession have been abrogated and now the Hindu Law will be applicable to all the Hindus including Sikhs and jat Sikhs in matter of succession. Learned counsel for the appellants further submitted that since the parties to the litigation were governed by Hindu Law, therefore, deceased Mula Singh was not competent to bequeath the ancestral property by means of a Will, he further submitted that the observations made by the learned first appellate court that the plaintiffs have failed to prove on record that they were father’s sons of deceased Mula Singh is contrary to the evidence available on the record. In this regard, he referred to the statement of Reveil Singh (DW4) who admitted in his cross-examination that the plaintiffs were father’s brother’s sons of Mula Singh. He further referred to the statements of Ajaib Singh (PW1) and Gurbax Singh (PW2) who stated on oath that the plaintiffs were further’s brother’s sons of deceased Mula Singh.
10. The learned first appellate court, after perusing the statements of the aforesaid witness, came to the conclusion that the aforesaid statements did not establish the relationship of the plaintiffs with deceased Mula Singh. It was found that the plaintiffs have not brought on record any evidence to establish that they were father’s brother’s sons of deceased Mula Singh. This finding of fact recorded by the Courts below cannot be interfered in the Regular Second Appeal. Even if it is assumed that the deceased Mula Singh and the parties to the suit were being governed by Hindu Law in the matter of succession and the plaintiffs are the Father’s brother’s sons of deceased Mula Singh, even they cannot claim the land in question. Merely on the basis of their relationship with the deceased Mula Singh, it could not be said that the plaintiffs will get the property by rule of survivorship until and unless they establish that they are the members of the coparcenary. It is neither the pleaded case of the plaintiffs that they were members of coparcenary headed by deceased Mula Singh nor they could have been so. Admittedly, the entire suit land was standing in the name of Mula Singh. Even if it was his ancestral property, he was fully competent to bequeath it, because he was the sole surviving coparcener. It has come in evidence that Mula Singh deceased did not leave behind him any male or female issue or any widow. It is not the case of the plaintiffs that they were members of the coparcenary and the said coparcenary was never separated by and partition. In absence of such pleading and proof, the plaintiff could not be held to be members of the coparcenary headed by the deceased Mula Singh or by some body else as Karta. It is well settled that under the Hindu Law, a sole surviving coparcener can bequeath his joint family property as if it was his separate property. A will executed by a coparcener can be challenged only by another member of the coparcenary. Therefore, I do not find any substance in the claim made by the plaintiff.
In view of the aforesaid discussion, I do not find any merit in the instant appeal and the same is hereby dismissed.
No order as to costs.