(PANDIT) SHALIG RAM Vs. BAWA CHARANJIT LAI

JUDGEMENT

(1.) This is an appeal by the defendants in the suit against a decree of the Judicial Commissioner of the North West Frontier Province, dated 25 July 1927, which reversed a decree of the Subordinate Judge of Peshawar dated 1 July 1926, and decreed the major portion of the plaintiffs' claim. The suit was brought by Hukam Chand and Charanjit Lal, alleging that they were the reversionary heirs of one Mul Chand and that on the death of his last surviving widow, Mt. Sahib Devi, they were entitled to recover possession of the properties specified in the plaint, which they alleged were in the possession of the defendants, and which were originally the ancestral property of the said Mul Chand. Hukam Chand died pendente lite and is now represented by Mt. Sitan Devi, respondent 2. The defendants claim title to the said properties by transfer either inter vivos or by will from the said Mt. Sahib Devi. Mul Chand was a Baba, a Hindu priest, who lived in Peshawar City, and the properties in suit consist chiefly of houses in Peshawar City and some revenue-free land near Peshawar, the revenue of which had been assigned by Government to a shrine known as Devi Dawara. The Subordinate Judge who tried the case in the first instance dismissed the plaintiffs' suit with costs.

(2.) The plaintiffs appealed to the Court of the Judicial Commissioner, who allowed the appeal and remanded the suit to the Subordinate Judge for the decision of certain issues which the Subordinate Judge had left undecided. On the further hearing on remand the Subordinate Judge made a decree in favour of the plaintiffs for possession of one-third of the properties numbered 3 and 11, and for redemption of the mortgaged property numbered 8, on payment of the mortgage money and costs and the amount spent in reconstruction of the property after a fire, namely Rs. 5,749. The suit with respect to the remaining property was dismissed. The plaintiffs again appealed to the Court of the Judicial Commissioner, who made a decree in their favour for possession of the properties numbered 1, 2, 3, 4, 6, 10 and 13 with Jagir-and for redemption of the property numbered 8 on payment of Rs. 3,695. The said sum of Rs. 3,695 was sufficient, in the opinion of the Judicial Commissioner, to cover the mortgage money, the interest thereon and the enhanced value caused by the reconstruction of the property after the fire. The remainder of the plaintiffs' claim was dismissed, and the Judicial Commissioner directed that the plaintiffs should recover costs on the properties which they had won and pay costs on those which they had lost from and to the defendants, who were in possession. From this decree the defendants have appealed to His Majesty in Council.

(3.) At the hearing of the appeal before the Board the learned counsel for the plaintiffs did not rely on the contention of res judicata which was raised in the Court of the Judicial Commissioner. Their Lordships, for reasons which need not be set out, are of opinion that the learned counsel was right in adopting that course. The questions in the appeal relate to the Wills of Mul Chand, and before dealing with the points relating thereto it will be convenient to set out the following pedigree, which shows the relationship existing between the parties : (For pedigree table see p. 241). Mul Chand died on 30 July 1891. There is no doubt that Mul Chand on 19 July 1891 made a will which was duly registered on 20 July 1891. It was alleged by the defendants that he made a second will on 26 July 1891. This will was not registered. It was contended on behalf of the plaintiffs that there was no proper proof of the second will dated. 26 July 1891, and it will be convenient to deal with this contention at once. A document which purported to be a copy of that will, was produced at the trial. Both the Courts in India came to the conclusion that the aforesaid document represented the will of Mul Chand. The original will was alleged to have been lost, and their Lordships are of opinion that there was evidence which would entitle the Courts in India to arrive at the above-mentioned conclusion, and they see no reason for interfering with their finding in this respect. This appeal, therefore, must be considered on the assumption that both the wills were duly executed by the testator Mul Chand, and that the terms thereof are contained in the two documents on the record.