L DEVI DASS Vs. PANNA LAL

JUDGEMENT

(1.) THE suit out of which this second appeal has arisen was instituted by the plaintiff for possession of the house described in the plaint against the defendant. The allegations made in the plaint were that Maya Shah, the grand -father of the plaintiff and Gopi Shah, the grand -father of one Amar Nath, were own brothers. The house in dispute belonged to Amar Nath who died about ten months before the institution of the suit. On his death the house devolved on his wife, Mst. Durga Devi, who by will dated the 10th Phagan 2007 gave away the house to the defendant. Mst. Durga Devi died on the 20th Phagan 2007 and the defendant took possession of the house on the basis of the will made in his favour by Durga Devi. The plaintiff brought the suit against the defendant alleging that Mst. Durga Devi, being a limited owner, was not competent to make a will in regard to the house inherited from her husband. It was further pleaded that the defendant being a non -state subject, a will disposing of Immovable property could not be made in his favour.

(2.) THE suit was resisted by the defendant on the ground that the house in dispute was the self acquired property of Amar Nath and after his death Mst. Durga Devi was the absolute owner of that house and -she. was competent to will away that house to the defendant. The defendant further averred that he was a state Subject and, therefore the will was valid. The defendant produced a State Subject certificate and the trial court dismissed the plaintiffs suit holding that Mst. Durga Devi was the absolute owner of the property which she was competent to dispose of by will and that the defendant being a State Subject, the will was valid in law.

(3.) IT appears that the State Subject certificate of the defendant was cancelled after the suit was dismissed by the trial court and the Additional District Judge holding that the defendant being a non -State subject, a will in his favour disposing of immovable property was bad in law, allowed the plaintiffs appeal and his suit was decreed.