SIRE KANWAR Vs. KANWARLAL

JUDGEMENT

(1.) THIS is defendant's appeal against the judgment and decree of the High Court of the former State of Jodhpur., dated the 27th October, 1948. It was presented in the Ijlas-i-khas of the former Jodhpur State and has come before us by virtue of Ordinances Nos. XL of 1949 and XII of 1950.

(2.) THE facts giving rise to it are that the defendant appellant Mst. Sire Kanwar is the widow of one Kishenlal Vyas who was resident of Jodhpur. Kishenlal adopted a son Kanwarlal who is plaintiff respondent in this case. On Besakh Vadi 1, Svt. 1912 corresponding to May, 1925 (Kishenlal executed in favour of his wife, the appellant, a will whereby he bequeathed his entire property, to her and authorised her to sell or mortgage that property during her lifetime and it was provided that whatever property would be left after her death would go to his son Kanwarlal. On the 6th of April, 1937 Kanwarlal brought a suit for partition of the property against his father. THE appellant was also impleaded as a party. On the 31.5.1939, the then District Judge of the former Jodhpur State passed a preliminary decree declaring that the plaintiff and the two defendants were each entitled to one-third share in the joint family property. After this preliminary decree, Kishenlal died on the 17th September, 1940. THEreafter, on the 7th November, 1940, Kanwar Lal applied for final decree. THE property was partitioned by metes and bounds in three equal shares. One of the shares was allotted to the plaintiff Kanwarlal and the other of his mother Mst. Sire Kanwar. As regards the third share of the deceased Kishenlal it was ordered by that Court that it should be handed over to Mst. Sire Kanwar as a trustee for the person who may ultimately be declared to be entitled to receive it by the civil court. Against this decision there was an appeal to the High Court of the former Jodhpur State. THE High Court remanded the case to the trial court with a direction to determine the question as to which of the contending parties i.e. Kanwarlal or his mother, was entitled to receive the deceased Kishanlal's share. On the 30th March, 1948, the District Judge's Court No. 1, Jodhpur, gave its judgment and decree in favour of Mst. Sire Kanwar on the ground that a severance of the status of joint family had already taken place before Kishenlal's death and that since he had bequeathed his property in favour of his widow and she had taken out a probate of the will, she was entitled to receive his share. Against this decision Kanwarlal went in appeal to the High Court of the former Jodhpur State. On the 27th October, 1948, it was decided by that Court on the date when the will was executed by Kishenlal, Kanwarlal had already been adopted by him as his son, add since Kishenlal was not the sole surviving coparcener he was not competent to execute a will in respect of the entire property or his undivided share in the joint family property and the will being invalid it could confer no rights upon this widow. THE decree of the trial court was set aside and Kishenlal's one-third share was ordered to be given to the plaintiff Kanwarlal. It is against this decree, that Mst. Sire Kanwar has come here in appeal.