Punjab-Haryana High Court
Bhagwana vs Indra on 18 April, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:051956
2024:PHHC:051956
105 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-1256-1994 (O&M)
Date of decision: 18.04.2024
Bhagwana and others
....Appellants
Versus
Indira
..Respondent
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present:- Mr. Sanjeev Kumar Aggarwal, Advocate for the appellants
Mr. R.K.Sharma, Advocate for the respondent
ANIL KSHETARPAL, J (Oral)
1. In this Regular Second Appeal, the plaintiffs assail the
correctness of concurrent findings of fact arrived at by the courts below
while dismissing their suit for the grant of decree of declaration that the
judgment and decree dated 04.10.1983 passed in favour of Smt.Indira
(defendant no.1) is illegal, null and void.
2. In order to comprehend the issues involved in the present
case, some relevant facts, in brief, are required to be noticed.
3. To demonstrate the inter-se relationship between the parties
a pedigree table is extracted as under:-
Nand Ram
|
_______________________________________________________________________
| | |
Har Chand Mool Chand Lal Chand
| (died issueless) |
_________________________ ____________________________
| | | | | |
Bhagwana Partap Kurda Indira Kamla Santosh
(defendant (adopted by
no.1) Mool Chand
4. Sh.Mool Chand was unmarried and issueless. Smt. Indira
filed a suit claiming that in a family settlement Sh.Mool Chand
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acknowledged her to be owner of the property. Sh.Mool Chand
appeared in the suit and conceded to claim, resulting in decree dated
04.10.1983. He also executed a registered Will bequeathing his entire
property in favour of Smt.Indira on 01.08.1983. Sh.Bhagwana, Partap
and Khurda filed a suit for declaration that such decree is not binding on
their rights. In substance, the plaintiff claims that the property is
ancestral, which could not be alienated without legal necessity and
valuable right. On appreciation of evidence, both the courts have
dismissed the suit on the ground that the plaintiff has failed to prove
custom, which prohibits a sonless proprietor from transferring the
property in favour of his niece.
5. Heard the learned counsel representing the parties at length
and with their able assistance perused the paperbook.
6. It may be noted here that the First Appellate Court has only
modified some of the findings of the trial court, however, the result of
the suit remains the same.
7. Learned counsel representing the appellants submits that in
this case, custom is proved and Sh.Mool Chand had no right to transfer
the property by way of a consent decree.
8. This Court has considered the submissions made by the
learned counsel representing the parties. However, finds no substance
therein. It is well settled that the custom is not only required to be
pleaded but also proved. In the present case, the plaintiffs have claimed
that it was ancestral property and they are governed by custom in the
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order of alienation and succession, however, no specific custom
applicable to sonless proprietor was brought to the notice of the Court.
9. Keeping in view the aforesaid facts, no ground to interfere
is made out.
10. Hence, dismissed.
11. All the pending miscellaneous applications, if any, are also
disposed of.
18.04.2024 (ANIL KSHETARPAL)
rekha JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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