NAND KISHORE Vs. STATE OF U P

JUDGEMENT

(1.) AFTER hearing the learned counsel for the parties I feel that the present appeal must fail. The admitted facts of the case are that one Narayani Bai was the Maurasidar under a lease granted by Maharaja of Tehri Garhwal in the year 1918. Subsequently she made a boundary wall and some construction over a portion of it. She remained in possession over that property till her death as mentioned in paragraph 4 of the plaint. She died at Calcutta on 6th January, 1964. The present suit was filed by the plaintiffs claiming the disputed land as devolving on them by virtue of a will executed by Narayani Bai aforesaid on 11th February, 1957. The will was executed and got registered at Calcutta. Under that will the plaintiff was appointed the executor and trustee as well as the heir. He was mentioned as the brother's son of the testator Smt. Narayani Bai. The will was made for the purposes mentioned in paragraphs 4 and 5 of the same as under :

(2.) AFTER the death of the lady it appears that the land was taken possession of by the State and some portion of it was allotted as Nazul land in favour of the defendant no. 2. Some portion was in possesion of the State Government and is still in their possession. The registered lease deed executed in favour of defendant no. 2 by the Deputy Commissioner also contained a site plan of the portion leased out under that document. In the instant case the entire land which was in the Maurasi of the deceased have been claimed by the plaintiff.

(3.) THE court below held that the plaintiff was not within the list of the Sapindas and, therefore, the disputed property could not be given to him by Smt. Narayani Bai. It was also held that she did not have a right to execute a will as it was the case of the plaintiff himself that she died issueless i. e. became a "Muyali". It was stated that the State was entitled to the property by way of escheat. In the relevant rule the escheat is governed by sub-section (g) of section 2 i. e. a person is deemed to be Muyali, when he has no heir as mentioned in section 5 of the rules. Consequently the court below dismissed the suit of the plaintiff.