RAJINDER CHAND Vs. KISHEN DITTA

JUDGEMENT

(1.) This is a Letters Patent appeal against a judgment of Achhru Ram, J. dated 25 February 1947 affirming a decision of the Senior Subordinate Judge, Kangra, in a suit for declaration that the plaintiff is the owner in possession of the land in suit.

(2.) The facts are that one Suba, Rajput, of Saproh in the Tehsil of Hamirpur (Kangra District) was the last owner of the suit land. He was succeeded by his widow Mt. Basanti who died on 26 November 1940 leaving her surviving a daughter, Mt. Patto. Before the mutation could be sanctioned in her name she also died on 10 July 1941. Before her death on 3 July 1941 she, however, executed a will in respect of this land in favour of the plaintiff. The Revenue Authorities entered mutation of the land in favour of the defendant Raja Rajindar Chand of Nadaun who is ala malik in the village where the land is situate. This village is a jagir village of the Raja of Nadaun. As a result of this mutation, Kishen Ditta, the legatee under the will, instituted the suit out of which this appeal arises, alleging that Mt. Patto had a full estate under custom and, therefore, on the basis of the will made by her he was owner in possession of the land in dispute and that the mutation in favour of the Raja was invalid. He claimed a declaration to the effect that he was in possession of the land in dispute as its owner and rightfully entitled to it under the will of Mfc. Patto. It was further alleged by him that in the presence of one Hakim who was the husband's brother of Mt. Patto the ala malik could not claim the estate and that he was entitled to remain in possession and could not be ousted by anyone else excepting the true owner.

(3.) The defence to the suit was that the plaintiff was not in possession of the land in dispute, that Mt. Basanti got the land in suit as a life estate and that Mt. Patto was not at all an heir to the estate of Suba, and in any case the will made by her was void because even if Mt. Patto was an heir to Suba's estate she could only hold it for life and had no power to will it away. It was contended that after the death of Mt. Basanti the defendant as ala malik was entitled to the land. These pleadings gave rise to four issues. 1. Whether Mt, Patto was absolute owner of the land in suit? 2. Did Mt. Patto execute a valid will in favour ot the plaintiff and was she entitled to do so? 3. Whether Hakim, a nearer reversioner of Mt, Patto, is alive, and what is its efiect? 4. Is the plaintiff in possession of the suit land and what is its effect? The trial Judge found on all these issues in favour of the plaintiff and decreed his suit. On appeal as well as on second appeal, this decision was upheld. The learned Single Judge, however, thought that this was a fit case for a Letters Patent appeal.