CHARNU Vs. CHHAJJU RAM

JUDGEMENT

(1.) THIS is the defendants second appeal out of the suit for joint possession that was brought by Chhaju Ram, the plaintiff respondent, in the court of Munsiff Samba. The trial court dismissed the suit of the plaintiff On appeal the learned District Judge, Jammu, reversed the judgment and decreed the plaintiffs suit.

(2.) BRIEFLY speaking the facts of the case, revealed by the pleadings of the parties, are that Waziru, the common ancestor of the partie inherited the occupancy tenancy of the land dispute from his fore -father. On his death the rights devolved upon his sons Munshi Duna and Hoshiara in equal shares of Hoshiara also died leaving behind Mst. Shahni, his widow who came to occupy the rights of her husband. Duna was survived by Charna, Sautu and Jagga defendant appellants. Munshi was survived by Chhajju Ram the plaintiff respondent. It is common ground in the case that Mst. Shahni, the widow of Hoshiara, willed away her 1/3 share of her occupancy rights in favour of Charna, Santu and Jagga the defendants appellants and after her death they come to occupy her share in February 1964. Chhaju Ram, the plaintiff respondent, filed a suit for joint possession with the allegation that he and the appellants Charnu, Santu and Jagga were entitled to the occupancy rights of Mst, Shahni in equal shares and that the will executed by Mst. Shahni in favour of the defendants was null and void as she being a limited owner of the occupancy tenancy could not alienate the same by will.

(3.) THE suit was resisted by the defendants appellants on the ground that Mst. Shahni could will away her share in occupancy rights and that the will was fully operative and the plaintiff could not institute the present suit. The suit, as stated above, was dismissed by the trial court holding that the will executed by Shahni in respect of her tenancy rights was a legal act and that there were no legal restrictions imposed on her not to will away her rights in the occupancy tenancy, that section 67 sub clause (4) of the Tenancy Act had no application to the will. It was also held that even under section 12 of the Hindu Succession Act of 1556, the widow had become the full owner of her rights in the occupancy tenancy and therefore the concept of limited owner, as envisaged in section 67 of the Tenancy Act, no longer stood good. The first appellate court, however, came to the conclusion that section 12 of the Hindu Succession Act did not given the case, that the mode of devolution was prescribed by Section 67 of the Tenancy Act and not by Section 12 of the Hindu Succession Act, The learned appellate court after addressing itself to the consideration of the question relating to the power of the widow to alienate her rights of occupancy under the Tenancy Act opined that the widow was a limited owner and that there was a statutory bar on her rights of alienation and that, there, the will executed by her in favour of the defendants was void abnitio. Consequently the learned District Judge decreed the plaintiffs suit for joint possession.