WALAITI RAM Vs. THAKUR SINGH

JUDGEMENT

(1.) BRIEF facts of the case for deciding this appeal are that Smt. Malan Widow of Kahan Chand made alienation with regard to her estate to defendants Nos. 1 to 14 and with respect to the rest she made will Exhibit D. 1 in favour of Rikhi Ram and Durga Dass defendants Nos. 18 and 19 sons of her brother Ram Dhan. The will and the alienation were challenged by Walaiti Ram and Dharam Pal sons of Rikhi Ram son of Atma Devi Second wife of Kahan Chand. Upon a consideration of the evidence on record, the trial Court held:-- (1) Smt. Malan was the absolute owner of the disputed property and therefore entitled to make the will and the alienation with respect to it: and (2) Will Exhibit D. 1 dated 12th July, 1962 executed by Smt. Malan was valid.

(2.) IN the result, the trial Court dismissed the suit, Feeling aggrieved the, plaintiffs preferred an appeal. Before the Additional District Judge, only the decision of the trial Court as to the validity of the will was assailed and he remanded the case on the following grounds:--

(3.) A plain reading of Rule 23-A shows that the decree has first to be reversed by the appellate Court and then the question arises whether a retrial of the suit is necessary. In other words, the decree, as appears to have been done in this case, cannot be reversed for the sake of remanding the case. It is pertinent to note that a similar amendment of Rs. 23 of order 41, Civil Procedure Code was made by the Madras High Court which in its decision Subramanian v. Kaliammal (1968) 2 Mad LJ 548 held:--