PARSI ALIAS PARAS RAM AND OTHERS Vs. PARMESHRI

JUDGEMENT

(1.) The plaintiff-respondent Smt. Parmeshri filed this suit for possession of agricultural land left by Mst. Jowali, died on 12th September, 1968. The plaintiff is the sister of the husband of Smt. Jowali namely Ishar and thus claimed herself to be entitled to succeed to the land left behind by Jowali, defendants had taken forcible possession of the suit land as the revenue officers wrongly mutated the land in their favour. Besides being the sister of deceased Jowali's husband, the plaintiff also claimed the suit land on the strength of a will dated 26th August, 1962 left by said Smt. Jowali in her favour. The suit was contested on behalf of the defendants on the ground that previously the High Court at Lahore had found between Smt. Jowali deceased and the defendant on 30th March, 1938 vide Exhibit D-1, that Smt. Jowali being a widow of the pre-deceased son was not entitled to the land in dispute along with some other land left by her father-in-law Bhagwana. According to the defendants that judgment operated as res judicata between the parties. On the pleadings of the parties, the trial Court framed the following issues :-

(2.) The trial Court dismissed the plaintiff's suit as it was found that though the plaintiff was a sister of the husband of Jowali deceased yet no valid will was left in her favour as claimed by the plaintiff. It was further found that Jowali was life-estate holder of the said land. According to the trial Court as a result of the High Court judgment passed earlier between the parties, Jowali could not make will of the land in dispute. In appeal the learned Additional District Judge reversed the finding of the trial Court as it came to the conclusion that Smt. Jowali was in possession of the suit land in her own right by way of maintenance and, therefore, after coming into Jowali deceased yet no valid will was left in her favour as claimed by the plaintiff. It was further found that Jowali was life estate holder of the said land. According to the trial Court as a result of the High Court judgment passed earlier between the parties, Jowali could not make will of the land in dispute. In appeal the learned Additional District Judge revered the finding of the trial Court as it came to the conclusion that Smt. Jowali was in possession of the suit land in her own right by way of maintenance and, therefore, after coming into force of the Hindu Succession Act, she became the full owner thereof and was thus competent to make a valid will in favour of the plaintiff. Regarding the earlier judgment of the Lahore High Court, it was found that the right of Smt. Jowali to remain in possession of the suit land by way of maintenance was recognised. Smt. Jowali did not possess the land under any decree or agreement, but as she was entitled to maintenance, she was in possession of the suit land as such. As a result of this finding the decree of the trial Court was set aside and the plaintiff's suit was decreed. Dissatisfied with the same the defendants have come up to this Court in second appeal.

(3.) The only argument raised on behalf of the appellants is that Smt. Jowali was in possession of the suit land under the decree of the High Court Exhibit D-1, and, therefore, she could not become absolute owner after coming into force of the Hindu Succession Act. Reference in this respect was made to Smt. Jaswant Kaur v. Major Harpal Singh and others,1977 RLR 437.