CHHANGA SINGH INDAR SINGH Vs. DHARAM SINGH

JUDGEMENT

(1.) THE suit and land measuring 238 kanals and 7 marlas was at one time in occupation of Udham Singh as an occupancy tenant. On the death of Udham singh, his two widows Jai Kaur and Harbans Kaur came into possession of the suit land. The two widows died in succession on 14th April, 1946 and 27th January, 1951, respectively. On the death of the second widow Harbans Kaur, Raj Kaur, mother of Udham Singh, claimed to succeed under section 59 (c) of the Punjab tenancy Act and the revenue authorities mutated one half of the land in occupation of Udham Singh as an occupancy tenant in favour of Raj Kaur and the other half in favour of Raj Kaur and the other half in favour of the respondents dharam Singh and Bachan Singh, who are fourth degree collaterals of Udham singh. Raj Kaur claiming succession to the entire land brought a suit for possession in 1955 but the trial Court maintained the mutation by which she was given one-half share. The decree was passed on 21st of June, 1956, only for one-half of the land of Udham Singh and the suit was dismissed in respect of the remainder. In fact, this decision was based on admissions made by parties at the time of mutation. Raj Kaur died on 23rd of July, 1956, after the decree of the trial court. Chhanga Singh and Mehar Singh nephews of Raj Kaur, field an appeal claiming to succeed to the property of Raj Kaur as legatees under a will executed in their favour on 18th of June, 1956. Before the learned District Judge, the validity of the will was challenged by the respondents and the following issue was framed by him:

(2.) A preliminary objection was taken by Mr. Mittal that in view of the decision of the Supreme Court in Hem Nolini Judah v. Mrs. Isolyne Saroj bashini Bose, AIR 1926 SC 1471 the claim of Chhanga Singh and Mehar Singh could not be entertained without a probate or letters of administration attached to the will. It was one of the points which were raised before the Division Bench in F. A. No. 32 of 1955: (AIR 1965 Punj 140) Mst. Ashrafi v. Tirlok Chand, and according to the statements of the counsel made at the bar the point raised by Mr. Mittal is no longer available to the respondents in view of the decision given by the Division bench in Mst. Ashrafi's case, F. A. No. 32, of 1955: (AIR 1965 Punj 140) delivered after the vacation in 1964.

(3.) AS mentioned before, the point for determination in this appeal, therefore, is whether the finding of the learned District Judge about the locus stand of the appellants can be upheld? The will Exhibit A. 1 of 18th of June, 1956, executed by raj Kaur, widow of Arjan Singh of village Ladipur mentions that she was widowed about 46 years ago and her son Udham Singh had Pre-deceased his two wives who also died in quick sessions without leaving any issue. Mehar Singh, her brother's son according to the recitals of this will, had been living with her since he was one year old. She has mentioned that Chhanga Singh, her other nephew like mehar Singh, had been assisting her to regain possession of the lands belonging to her son Udham Singh which the collateral had obtained by the force. Both these nephews had expended lot of money on litigation on her behalf. Chhanga Singh had also been acting as her attorney. In lieu of the services which these two nephews had rendered she bequeathed her entire property to them and declared them to be the legatees of her estate. Both Chhanga Singh and Mehar Singh were to hold the estate of the testatrix in equal shares.