1. This second appeal is directed against the judgment and decree passed by 2nd Additional District Judge, Jammu dated 12-9-85 in File No. 9.Appeal, whereby judgment and decree passed by the Court of Sub-Judge, Samba in File No. 41.Civil, dated 6-12-83, has been upheld.

2. Facts relevant for deciding this appeal may be noted in brief.

Plaintiffs as well as respondents-1 to 3 are the sons of Bhullu Ram and defendants 4 to 11 are his grandsons. Will Exhibit-“PA” dated 9-10-70 registered in the office of Sub-Registrar, Samba on 25-3-71, is the subject-matter of the suit that was filed by the plaintiffs. As per plaintiffs' case, the land in suit was ancestral property held by the deceased and the Will in question according to them, was inoperative and void thus being nullity did not affect their rights and relief of partition as well as of prohibitory injunction and of possession was also claimed in the suit.

3. Further case of the plaintiffs was that deceased Bhullu Ram became owner of the property in question when its ownership was granted to him in accordance with the provisions of the Jammu and Kashmir Big Landed Estates Abolition Act, 2007 (1950 A.D). Since this was not self-acquired property of the deceased, as such he had no right to alienate and or “Will” away the same, since parties to the case had legal right, share in the ancestral house was also claimed by the plaintiffs. Deceased-Bhullu Ram being not in a position to execute the Will, as he was an old ailing person, meaning thereby that he was not in a fit stage of mind to have executed the Will in question, and lastly it was pleaded that the Will was executed by Bhullu Ram under undue pressure of defendants 1 to 3, who were trying to get the land mutated in their favour in connivance with the revenue staff and thus were trying to forcibly occupy the suit land by disturbing the possession of the plaintiffs.

4. These pleas of the plaintiffs were contested and resisted by the defendants. It was specifically pleaded that the suit property was self-acquired property of deceased Bhullu and thus he was competent to bequeath the same in any manner he liked. Will Exhibit “PA” was pleaded to have been executed by the executant of his free Will. Further plea of suit being not properly valued and being improperly stamped was also raised in addition to the fact that plaintiffs having already separated as far back in the year 1950 and thus, they had severed all connections with the deceased-Bhullu. In these circumstances, it was pleaded that the suit was not maintainable in its present form. Defendants-4 to 11 did not contest the claim of other defendants and tenor of their written statement indicates that they have by and large supported the case of defendants—1 to 3. However, in their written statements, they have feigned ignorance of the Will in question.

5. On the aforesaid pleadings, parties went to trial on the following issues:—

1. Whether the suit property comprised of Kh. Nos. 206, 207, 208, 93, 95, 146.min 77, 79, 182 and house of Bhuilu Ram as per annexure C & D situate in village Bhudwal is the ancestral property of the Joint Hindu Family of the plaintiffs? OPP.

2. Whether the Will dated 9th Oct., 1970 was executed by Bhulu Ram and registered on 25th March, 1971 under the influence of undue pressure by the defendants-1 to 3? OPP.

3. Whether on 28th of September, 1977 the defendants attempted to take forcible possession of the suit land and the house, if so what is its effect on the suit? OPP.

4. Whether the value for the purposes of court-fee and jurisdiction is incorrectly fixed, and paid, if so what is the correct value? OPD.

5. Whether the plaintiffs have separated from Joint Hindu Family in the year 1940, if so what is its effect? OPD.

6. Whether the suit is not maintainable in the present form? OPD.

7. Relief.

6. On conclusion of the trial, issues-1 to 3 and 5 were decided in favour of the defendants and against the plaintiffs. Issues-4 and 6 were not pressed and thus suit was dismissed. On appeal having been preferred by the plaintiffs, they did not succeed, hence 2nd appeal at their instance.

7. Mr. S.A Salaria, Advocate General learned Counsel for the plaintiffs made three-fold submissions in support of this appeal namely: (a) that the Will Exhibit-“PA” is in fact a transfer within the meaning of Section 20 of the Jammu an Kashmir Big Landed Estates Abolition Act, 2007 (1950 A.D). In support of this submission, reliance was also placed on Section 5 of this Act; (b) Since the Will Exhibit-“PA” obstructs the normal course of devolution under law, as such on this ground also this document clearly transfers the property in favour of the beneficiaries; (c) Will Exhibit “PA” was surrounded by suspicious circumstances, therefore, both the Courts below have fallen into error by not examining the case on this aspect thus, the impugned judgment and decree was liable to be set aside.

8. In support of first two submissions referred to hereinabove, reliance was placed on Sections 5 and 20 of the Abolition Act as well as Sections 31 and 32 of the Jammu & Kashmir Agrarian Reforms Act, 1976 and on the third plea, reliance was placed on the statements of DWS Kor Singh, petition writer and Thakur Dass and Girdhari Lal, marginal witnesses of Exhibit “PA” as well as on the statement of Shankar Lal to show that document Exhibit-“PA” the Will in question cannot be termed to have been executed of free Will and volition by the deceased therefore, on this ground also, appeal must succeed as per Mr. Salaria. On the other hand, learned Counsel appearing for the respondents while controverting all the submissions pointed out that the testamentary succession as in the present case by means of Will Exhibit ‘PA’ is not a transfer within the meaning of Sections 5 and 20 of Abolition Act and further Sections 31, 32 and 33 of the Jammu & Kashmir Agrarian Reforms Act have no applicability to the facts of the present case. Section 20 of the Jammu and Kashmir Big Landed Estates Abolition Act, 2007 (1950 AD) may be reproduced, which is to the following effect:

“20. Interest of a proprietor or tiller not transferable and relinquishment by a proprietor or tiller:—2[(I) Except as otherwise provided in this Act and except where transfer is made in favour of Government, a 3 [Local body. State Land Development Bank or Land Development Bank established under the provisions of the Jammu & Kashmir Co-operative Societies Act, 1960 or a co-operative society registered under the said Act, or a Panchayat constituted under the Jammu & Kashmir Village Panchayat Act, 1958), no tiller to whom land shall be transferred under the provisions of Section 5 shall transfer such land or any interest therein:]

Provided that the transfer of land or any interest therein for building purposes within the limits of a Municipality, Town Area, a Notified Area, or a Cantonment Area or an area in which a Town Planning Scheme is sanctioned under the Jammu & Kashmir Town Planning Act, Svt. 1977, or in such villages in the vicinity of a city or town as may be notified by the Government, may be made with the permission in writing of the Revenue Minister.]

(2)(a) A proprietor, or a tiller, to whom land has been transferred under the provisions of the Section 5, may at any time apply in writing to the Revenue Minister for permission to relinquish all or any of the land held by him in ownership right in favour of the State.

(b) The Revenue Minister may, after such enquiry as he may deem necessary, accept such application and notwithstanding any law for the time being in force in this respect, relinquishment of rights in such land and transfer thereof in favour of the State shall have effect from the beginning of the year next following.”

9. A perusal of Section 20 shows that it prohibits the transfer and relinquishment by a proprietor or tiller and leads to penal consequences which are enumerated under Section 24 of the said Act.

10. It hardly needs to be emphasised that transfer has to be in accordance with the provisions of the Jammu & Kashmir Transfer of Property Act, 1977 (1920 AD), wherein the transfer is defined as under:—

“5. ‘Transfer of property’ defined:— In the following sections “transfer of property” means an act by which a living person conveys property, in present or in future, to one or more persons, whether living or unborn or to himself, [or to himself] and one or more other such persons; and “to transfer property” is to perform such act.

[In this section “living person” includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.]”

11. Acknowledged and recognised modes of transfer of property under law i.e Transfer of Property Act, 1977 (supra) denotes transfer by way of Will, gift, exchange and mortgage. Admittedly, Will is not included as one of the modes by which transfer is acknowledged under law. If legislature also intended to include bequest by means of Will within the meaning of transfer under the Transfer of Property Act (supra), then it would have been included in the definition of transfer besides, would have been dealt with under the Transfer of Property Act like other transfer viz. sale, gift, mortgage and exchange. Admittedly, this has not been done.

12. Above all, the matter is in no more res integra in view of the Division Bench judgment of this Court reported in 1977 J&K LR 73 : (AIR 1977 NOC 168), Shrimati Daboli v. Shrimati Ramu, wherein amongst other things, it was held that the Will is not a transfer of property within the meaning of Section 20 of the Jammu & Kashmir Big Landed Abolition Act, 2007 (1950 AD) and thus the appeal was dismissed by the bench. The question was directly involved in that case and had been dealt in detail. In this view of the matter, first two contentions raised by Mr. Salaria are hereby rejected.

13. Now coming to the last contention regarding the Will Exhibit-“PA” has not been proved to be the result of free Will and volition on the part of executant Bhullu Ram, as it was surrounded by suspicious circumstances. In this behalf, when a reference is made to petition writer. Kor Singh PW he has clearly proved having scribed the same at the instance of deceased executant Bhullu Ram who after admitting the contents thereof had affixed his thumb impression on the same in presence of PWs. Thakur Dass and Girdhari Lal, who also signed the document at the same time in presence of each other. In the cross-examination of these witnesses, nothing could be brought on record by the plaintiffs. Only ground pressed into service for attacking the statement of Shankar Lal is his having called scribe (Kor Singh PW) for writing the Will in question. Unless something more is brought on record during the course of cross-examination of DWs that any of the defendants had exercised his might or pressure on the deceased, simply because the scribe was called by one of the beneficiaries would not be ground for holding that Exhibit-“PA” was the result of pressure exerted by the defendants-1 to 3.

14. In fact, when evidence of the DWs is seen qua the impugned judgment and decree passed by the Court below, it cannot be said, that the findings are either perverse or could not have been arrived at on preponderance of evidence. In fact, this Court is of the view that the evidence has been properly considered as well as examined by both the Courts below. In addition to this, it also cannot be said that the evidence has been misread and misconstrued much less misappreciated by the Courts below. It may be clarified that the High Court would not normally interfere in the concurrent findings of the fact of the Courts below by reappreciating evidence and thus arrive at another possible view. Here it may also be worthwhile to notice that the view taken by the First Appellate Court below cannot be said to be based on no material and or present being a case of no evidence as was being pointed out by Mr. Salaria.

15. In (1996) 6 SCC 166 : (AIR 1996 SC 3521), Navaneethammal v. Arjuna Chetty, it was observed that interference in 2nd appeal under Section 100 of the C.P.C with the findings of the Court below must be avoided by the High Court unless warranted by compelling reasons. It was further observed that in any case the High Court is not expected to reappreciate the evidence just to replace the findings of the Courts below. On this premise, it was further held that even assuming that another view is possible on reappreciation of the same evidence, that should not have been done by the High Court as in that case view taken by the 1st Appellate Court could not be termed to be based on no material. Ratio laid down in this case fully applies to the facts of the present case, as it has been found that the evidence has been properly construed and examined by the 1st Appellate Court while upholding the decree of the trial Court dismissing the appeal of the plaintiffs.

16. In (1986) 3 SCC 360 : (AIR 1986 SC 1509), Dudh Nath Pandey v. Suresh Chandra Bhattasali, it was observed by the Hon'ble Supreme Court that jurisdiction of High Court under Section 100 of the C.P.C, is not there to set aside the findings of fact of the 1st Appellate Court and thus coming to a different conclusion of reappraisal of facts.

17. In (1996) 3 SCC 392 (399) : (AIR 1996 SC 3021, Para 8), Ramanuja Naidu v. V. Kanniah Naidu, it was observed as under:—

“11. We are of the view that in interfering with the concurrent findings of facts of the lower Courts, the learned single Judge of the High Court acted in excess of the jurisdiction vested in him under Section 100 of Civil Procedure Code. The learned single Judge totally erred in his approach to the entire question and in reappraising and reappreciating the entire evidence and in considering the probabilities of the case, to hold that the judgments of the Courts below are ‘perverse’ and that the plaintiff is entitled to the declaration of titled suit property and recovery of possession.”

18. When the case of the plaintiffs is examined on the basis of evidence, as well as on principles of law governing consideration of a 2nd appeal, it is clear that the impugned judgment and decree calls for no interference.

19. No other point was urged in this appeal.

20. As a result of the aforesaid discussion, there is no merit in this appeal, which is accordingly dismissed with costs quantified at Rs. 2000/-.

Appeal dismissed.