RAMBATI VEDRAM Vs. BUNDKUWAR MOHAR SAV

JUDGEMENT

(1.) THE dispute in this appeal relates to land Khasra No. 479/2, area 2. 13 situated in village Amarkot, tahsil Mahasamund, district Raipur. It is common ground that this land originally belonged to Moharsai. It is also not in dispute that on 25th June 1946 Moharsai executed a will by which he bequeathed all his movable and immovable property in favour of his daughter rambati. It is further not in dispute that Moharsai died leaving two heirs, namely, his widow Bundkuwar and daughter Rambati. After the death of moharsai, dispute arose between Bundkuwar and Rambati about possession of the said land which gave rise to proceedings under section 145 of the Code of criminal Procedure. By an order, dated 19th June 1967, the Sub-Divisional magistrate, Mahasamund, decided section 145 proceedings in favour of Rambati and confirmed her possession. The suit giving rise to this appeal was (hen instituted by Bundkuwar on 5th July 196? for joint possession of half share in the land. Rambati and her husband Vedram were joined as defendants in the suit. The defendants relied upon the will left by Moharsai and also on adverse possession.

(2.) THE trial Court as also the first appellate Court negatived the defence under the Will on the ground that in 1946 when the Will was executed, the suit land was occupancy tenancy of Moharsai and, as the law then stood, no will could be made in respect of land held in occupancy tenancy. It was further held that to decide whether the will was effective to convey the suit land, one will have to see the law as it stood on the date when the will was executed. The defence of adverse possession was also negatived on the finding that moharsai died only 9 or 10 years before 1967 when the suit was instituted and the defendants' possession was only for that period.

(3.) IN this appeal, the learned counsel for the defendants-appellants has submitted before me that the Courts below were wrong in assuming that in 1946 the suit land was held by Moharsai as occupancy tenant. It is further submitted that in any case the relevant law to be seen regarding the validity of the will is that law which was in force at the time of Moharsai's death and not the law which was in force at the time when the Will was executed. It is also submitted that Moharsai died 9 or 10 years before 1967 as admitted by the plaintiff and the law then in force was the Madhya Pradesh Land Revenue Code, 1954, under the provisions of which the Will was valid.