LADHI BAI Vs. THAKUR SHRIJI

JUDGEMENT

(1.) THIS is plaintiff's second appeal against the judgment and decree dated 31st july, 1961 passed by the District Judge, Jaipur District, Jaipur, setting aside the judgment of the Munsiff, Jaipur District, Jaipur in a suit for possession and mesne profits of the disputed shop.

(2.) THE plaint was filed in this case jointly by three persons Kesarlal, Maganlal and mst. Ladhi Bai. Kesarlal claimed himself to be the adopted son of Chhaganlal, while maganlal joined as one, who claimed the succession to the property of Chhaganlal after the death of Mst. Godawari Bai, widow of Chhaganlal and Mst. Ladhi Bai as the daughter of Chhaganlal. The disputed shop was rented out by Mst. Godawari bai in her life time to Sunderlal, who happened to be the manager of the temple of beespanthiyan. It is alleged that Sunderlal did not pay any rent to Mst. Godawari bai till her death, and, therefore, after Goda-wari's death, a notice was served on defendant Sunderlal by Kesarlal to pay the rent to him. While replying to this notice Sunderlal intimated to Kesarlal that he was no longer the tenant of deceased Godawari Bai as the property was long back bequeathed by mst. Godawari to the temple of Beespanthiyan. On receipt of this reply the suit was filed by the three plaintiffs against both Sunderlal and the temple Shriji beespanthiyan praying that a decree for possession of the shop may be passed in their favour, and defendant No. 1 Sunderlal may be ejected therefrom, and he should be held liable for the payment of arrears of rent amounting to Rs. 260 and for the mesne profits for retaining the possession of the suit property till it is vacated. The defendants contested the suit. It was pleaded on behalf of the temple beespanthiyan that the shop was bequeathed by Mst. Godawari by executing a will ex. A. 1 dated 24-4-1956, and that after the death of Mst. Godawari, who died on 17-8-1956. the temple treated itself the owner of the property and therefore it was prayed that the suit of the plaintiffs be dismissed. After trial the suit was decreed by the learned Munsiff, Jaipur District, Jaipur, on 30th April, 1960 taut on an appeal the learned District Judge of District Jaipur reversed the decree and held that the disputed shop vests in the temple by virtue of the will executed by Mst. Godawari who died on 17-8-56 when the Hindu Succession Act had come into force and she being the absolute owner thereof had the authority to bequeath the same in favour of the temple. It was also held by both the courts below that kesarla] failed to prove himself to be the adopted son of Chhaganlal and therefore he had no right to file the suit. Kesarlal did not challenge this findinp against him and therefore Mst. Ladhlbai, daughter of Chhaganlal alone has filed this appeal.

(3.) LEARNED counsel appearing on behalf of the appellant has assailed the judgment of the first appellate court only on three points: