KAUSHALYA Vs. MANGTOO

JUDGEMENT

(1.) In this second appeal from a decree passed by the learned Senior Subordinate Judge Kangra. at Dharamsala, learned counsel for the apellant has raised several contentions but the real controversy centres round the question as to whether the law that should govern the decision of the case is contained in sub-section (1) or sub-section (2) of section 14 of the Hindu Succession Act 30 of 1956 which came into force on 17th June, 1956. If sub-section (1) applies then the appellant succeeds and respondent No- I who was plaintiff in the the trial Court fails. On the other hand if sub-section (2) applies then the appeal fails and the plaintiff-respondent No. 1 is entitled to a decree being passed in his favour.

(2.) There is no dispute as to facts. One Nihala grand-father of Mangtu was the last male holder of certain land situate in a village in Tehsil Nurpur, District Kangra. His widow Smt. Orku got it by inheritance. Her marriage with Nihala was a second marriage, her first marriage being with one Dhanu from whom she had a daughter named Smt. Naro. By mutation No. 128 sanctioned on 27th May, 1944 (Exhibit P. 5) Smt. Orku made a gift of the land in favour of her daughter Smt. Naro. At the time of mutation, the donor Smt. Orku, the donee Smt. Naro and Mangtu the present plaintiff appeared before the sanctioning authority. English translation of the order sanctioning mutation may be reprodued here as it is the language and effect of this order which is mainly responsible for the controversy arising in this litigation.

(3.) The defendants filed separate written-statements taking similar pleas. They pleased that the gift in favour of Smt. Naro was not conditional and that she being in possession of the property when the Hindu Succeesion Act came into force became full owner thereof. They denied the ancestral character of the land and also pleaded that the parties were not governed by custom in matters of alienation and succession andaverred that the plaintiff had no locus standi to sue.