Sureshwar Thakur, J
1. Minor Swapnil alias Vikas Kumar, instituted Civil Suit bearing No. 30 of 2006, RBT No. 2 of 2009, through, his mother-cum-natural guardian, one
Kusum Kumari. In the afore civil suit, he claimed for the making of a decree for partition, and, for possession of the suit land. Furthermore, he also
therein claimed the making of a decree of permanent prohibitory injunction, for restraining the defendant from alienating, encumbering and transferring
the suit property. Moreover, the apposite testamentary disposition, as, made on 11.10.1995 by the defendant, was also claimed therein to become
declared as null and void, and, not binding upon the plaintiff.
2. The learned District Judge, Hamirpur through the operative part of its verdict, dismissed the plaintiff's suit. Consequently, the plaintiff is aggrieved
from the dismissal of the afore civil suit, by the learned District Judge, and, is led to institute the extant appeal before this Court. Moreover, the
defendant also becomes aggrieved from findings adversarial to him, rendered upon issues No.1, 6 and 9. Since the findings rendered upon the afore
issues, declared that the suit property is ancestral coparcenary property, thereupon, the defendant through instituting Cross Objections bearing No.999
of 2012, and, cast under the provisions of Order 41, Rule 22 of the CPC, seeks annulment of the afore findings rendered, upon, issues No. 1, 6 and 9.
3. Since, both the afore, Regular First Appeal and Cross Objections, do arise from a common verdict pronounced by the learned District Judge,
Hamirpur, upon, Civil Suit No.30 of 2006, RBT No.2 of 2009, hence, both are amenable for a common verdict being made thereons.
4. The learned counsel appearing for the appellant has contended with much vigour before this Court, that since findings adversarial to the
defendant/cross-objector became rendered, upon, issues No.1, 6 and 9, thereupon, he argues that the decree for partition of the suit property, and, also
further a decree for permanent prohibitory injunction, for restraining the defendant from alienating, encumbering and transferring the suit property, was
also enjoined to be made, whereas, the espoused decrees supra becoming not passed by the learned trial Court, hence, he argues that the dismissal of
the plaintiff's suit is grossly inapt.
5. Since, the learned counsel appearing for the defendant/cross-objector/respondent has also assailed the legality of findings rendered, upon, issues
No.1, 6 and 9, issues whereof read as under:-
“1. Whether the property in dispute in the hands of defendant is ancestral?OPP
6. Whether the property in dispute is neither coparcenary nor ancestral, but self acquired?OPD.
9. Whether the Will dated 30.01.1970 executed by late Latuira in favour of defendant is valid Will, if so, its effect? OPD.â€
thereupon, the entire fulcrum of the lis engaging the contesting litigants is rested upon an adjudication being pronounced, vis-a-vis, the legality of
findings adversarial to the cross-objector/defendant/respondent, rather, becoming rendered, upon, the afore extracted issues. The suit property would
acquire the trait, and, characteristic(s) of ancestral coparcenary property, upon, satiation becoming meted to the definition of “ancestral propertyâ€,
as, occurs in Mulla's principles of Hindu Law, definition whereof stands extracted hereinafter:-
“ANCESTRAL PROPERTY
(1) Property inherited from paternal ancestor.- All property inherited by a male Hindu from his father, father's father or father's father's
father, is ancestral property. The essential feature of ancestral property according to Mitakshara law is that the sons, grandsons and great
grandsons of the person who inherits it, acquire an interest, and, the rights attached to such property at the moment of their birth. Thus, if A
inherits property, whether movable or immovable, from his father or father's father, or father's father's father, it is ancestral property, as
regard his male issue.â€
A reading of the hereinabove extracted relevant paragraph of Mulla's principles of Hindu Law, and, appertaining to the traits or characteristics hence
necessarily becoming borne by the suit property, for it being construable to be ancestral property unfolds that, the last male holder of the property,
uninterruptedly and unbrokenly acquiring it, through apposite successive mutations hence commencing from the time of his great grand-father. The last
male holder of the suit property is to occur in the fourth degree of descendants from his predecessors-in-interest. Moreover, there has to be clear and
cogent evidence on record, and, its evidently displaying, that the suit property become received by the last male holder or the same entering into the
hands of the last male holder rather in an unbroken and uninterrupted chain from his great grand father. Furthermore, it is also required to be proven
through cogent evidence, that the afore receipt of the suit property in the hands of the last male holder, obviously occurs in the fourth line of
successors from his ancestors, and, also evidently did continuously prior thereto hence in an unbroken or uninterrupted chain through proven apposite
successive attestation of mutations of inheritance rather enter into the hands of his prior three male ancestors. In the afore regard, though, the learned
counsel for the plaintiff, has drawn the attention of this Court, to a pedigree table appertaining to the predecessors'-in-interest of the plaintiff, and, of
the defendant. However, the pedigree table only mentions the relationship of the defendant, with his predecessors-in-interest, as, occur therein. Per se,
from the pedigree table it is not fathomable, nor determinable that the further principle supra, that the defendant/cross-objector is to imperatively occur
in the fourth degree in the line of descendants, from his great grand father, given the imperative factum comprised in the suit property rather
uninterruptedly, and, unbrokenly through successive mutations, attested respectively during the life time(s) of his three predecessors-in-interest, hence,
entering into the hands of the defendant, rather remaining not proven. The reason for forming the afore conclusion arises from the factum, that the
respectively made mutations, and, as became attested during the respective life times of the three apposite predecessors-in-interest of the
defendant/cross-objector, did not come to be placed on record. Since, therefrom alone it could be determined, that the suit property, in an unbroken
and uninterrupted successive chain, rather travelled into the hands of the defendant, from his three predecessors-in-interest. Therefore, for wants
thereof, this Court concludes that hence merely, upon the pedigree table, no conclusion could have been made by the learned trial Court, that the suit
property bears the traits and characteristics of ancestral property, and, that it is amenable for its being classified as ancestral property.
6. Be that as it may, further strength to the afore inference, is gathered from the factum that since one Mehar Chand, the father of the
defendant/cross-objector, pre-deceased the grand father of the defendant/cross-objector. Consequently, the grandfather of the defendant/cross-
objector, one Laturia, through a registered will bearing No. 269 of 30.01.1970, bequeathed the suit property, to the defendant/cross-objector. The afore
mode of acquisition of title to the suit land, by the defendant/cross-objector, does constrain this Court, to conclude that the suit property, upon its
entering into the hands of defendant/cross-objector, as a legatee, through the afore Will bearing No. 269 of 30.01.1970, rather making it to acquire the
traits and characteristics of it being the self acquired property of the defendant/cross-objector, and, hence, the suit property, upon its entering into the
hands of the defendant/cross-objector, did not acquire the traits and characteristics of it being construable to be ancestral coparcenary property, as
erroneously concluded by the learned trial Court.
7. A reading of the plaint, discloses that no averment is carried therein, vis-a-vis, the lack of testamentary capacity of Laturia to execute Will bearing
No. 269 of 30.01.1970, vis-a-vis, the defendant/cross-objector, nor any pleading is reared, in the plaint, and, as appertaining to the Will supra, being
shrouded with suspicious circumstance nor any averment is raised in the plaint, vis -a -vis, the validity of the execution of Will (supra) by deceased
Laturia. Consequently, the Will supra as became executed, vis-a-vis, the suit property by one Laturia, and, qua the defendant is concluded to be validly
executed.
8. Lastly, the learned counsel appearing for the appellant has contended with much vigour, that the plaintiff was entitled to a decree, for permanent
prohibitory injunction, as, Parkash Chand defendant/cross-objector has no right, title or interest in the suit property. However, the afore reared
contention of the appellant has no vigour, as, this Court has for the afore reasons concluded, that the making of a bequest by one Laturia, vis-a-vis, the
defendant, was completely valid, not onlyu with respect to its valid and due execution by deceased Laturia, but also in respect of Laturia becoming
empowered under law to alienate it. Moreover, since, this Court concluded that the afore mode of acquisition of title to the suit property, by the
defendant, hence, makes to acquire the traits and characteristics of self acquired property of the defendant. Consequently, since the plaintiff has no
right, title or interest in the suit property, and, whereas, the defendant/cross-objector has the completest right, title or interest upon the suit property.
Therefore, the declining of relief of injunction rather for restraining the defendant from transferring and alienating the suit property, is well merited,
and, warrants no interference being made by this Court.
9. Since, as aforestated, the lack of testamentary capacity in Laturia is contended to spur from the suit property purportedly acquiring the trait and
characteristics of ancestral coparcenary property, and, whereupon a contention is reared that the afore Laturia, was completely barred under law to
execute the Will supra, vis-a-vis, the defendant. However, with this Court making a conclusion (supra), that the suit property, does not acquire, the
traits and characteristics for its being classified as ancestral coparcenary property, rather it is the self acquired property of the defendant/cross-
objector, through a Will executed by one Laturia. Therefore, as aforestated, the afore conclusion that Laturia had completest empowerment under law
to execute Will supra, vis-a-vis, the defendant/cross-objector, does acquire completest formadibility.
10. For the foregoing reasons, the extant appeal is dismissed, and, the cross-objections are allowed. The verdict of the learned trial Court, in so far as
it dismisses the plaintiff's suit, and, declines to him the relief of permanent prohibitory injunction and also decree of partition, is upheld. However, the
findings adversarial to the defendant/cross-objector as become rendered upon issues No.1, 6 and 9 are interfered with, and, consequently are set
aside. Decree sheet be prepared accordingly. All pending applications also stand disposed of.
