RAGHBIR SINGH Vs. BUDH SINGH

JUDGEMENT

(1.) The decision of this appeal turns on the construction of a will made by a Hindu testator. One Chaudhary Zaharia Mall made this will on 23-3-1967. After his death, one of his sons, Budh Singh, filed a suit for partition against the other sons and daughters of the testator without disclosing 'the will and on the ground that the succession, to the property of late Zaharia Mall would be intestate. The suit was contested by the other three sons of the testator, the daughters remaining ex parte. The contesting sons set up the will and pointed out that Budh Singh had been excluded from succession to the testator by the said will. The plaintiff Budh Singh 586 filed a replication in, which the factum and the validity of the will was denied. Alternatively, however, it was pleaded that even according to the alleged will Budh Singh was entitled to l/6th share in the property. The parties did not adduce any evidence and the court first decided only the following question of law, namely,-

(2.) The trial Court construed the will to mean that the whole of the property of the testator was first absolutely bequeathed to the widow. After the death of the widow, all the four sons and :wo daughters of the testator were legal heirs of the widow under the Hindu law and hence the plaintiff was entitled to l/6th share in the properly. The bequest of the various items of immovable property by the testator to his three sons, who were defendants 1 to 3 in the suit, did not take effect, according to the learned trial Court, because an absolute estate was created in favour of the widow and nothing was left thereafter for the testator to bequeath to the sons-defendants 1 to 3. A preliminary decree for partition was, therefore, passed. The present appeal is tiled by the three sons of the testator while Budh Singh, the 4th son. is the respondent.

(3.) The will which comes up for construction is as follows :-