NIRMAL CHAND Vs. VIDYA WANTI ECEASED

JUDGEMENT

(1.) His is plaintiff's appeal by special leave. He sued the original respondent Vidya Wanti for. possession of the suit properties on the basis of his title to the same The Trial court dismissed the suit and the first Appellate court affirmed the decision of the Trial court. His appeal to the High court was summarily dismissed.

(2.) The facts of the case in brief are : The two brothers by name Amin chand and Lakhmi Ghand owned considerable agricultural and non-agricultural properties. Their agricultural property was situate in Shahpur District which is now a part of Pakistan. Two brothers appear to have partitioned their non-agricultural properties some time in 1944. Thereafter Lakhmi chand died leaving behind him, the appellant his son by his pre-deceased wife, his second wife Subhrai Bai and his daughter by the second wife Vidya wanti. Thereafter there was a regular partition between Amin Chand, the appellant and Subhrai Bai under a registered document, dated 3/09/1945. As per that document one portion of the agricultural property was allotted to Amin Chand, another to the appellant and the 3rd to Subhrai bai. That document provided that Subhrai Bai "will be entitled only to the user of this land. She will have on right to alienate it in any manner. She will have only life interest in it". At about the time of entering into the deed Amin Ghand was heavily indebted. To discharge his debts the appellant paid a sum of Rs. 66,000. 00. Consequently Amin Chand was allotted 90 Kanals, the appellant 671 Kanals and Subhrai Bai 358 Kanals of land. On the creation of Pakistan in the year 1947, the entire family shifted to India leaving behind their agricultural property in Pakistan. In this country they were separately allotted agricultural lands in lieu of the lands left by them in Pakistan. Subhrai Bai bequeathed the property gotby her under the deed of 3/09/1945 to her daughter Vidya Wanti as per her Will of 18/06/1957. Sometime thereafter she died and the properties in' question were mutuated in the name of Vidya Wanti on 19/12/1958. At this stage it may be noted that the Hindu Succession Act (Act XXX of 1956) came into force on 17/06/1956. The suit from which this appeal has arisen was instituted on 5/03/1959.

(3.) The only contention advanced in this appeal is that when the parties were residing in Pakistan they were governed by the customary Hindu Law under which Subhrai Bai had no right to any portion of the agricultural properties which was the subject-matter of the partition under the deed, dated 3/09/1945. She obtained a right to the suit properties only under that deed and therefore it must be held that she got that property subject to the conditions prescribed in that deed. Hence it was urged that the present case falls within Ss. (2) of the Hindu Succession Act and consequently she had no right to bequeath the suit properties to her daughter.