MT HARNAM KAUR Vs. RATNA

JUDGEMENT

(1.) These are two connected appeals under Clause 10, Letters Patent, from a judgment of a learned Single Judge of the Lahore High Court.

(2.) The facts relevant for purposes of the appeal may be shortly stated. Karam Singh and Dipa sons of Amir Singh who were Jats of village Rangian in the Tehsil and District of Ludhiana jointly owned the suit land. On Dipa's death his share devolved upon his son Chanda. Chanda died somewhere in June 1908 and the land was mutated in favour of his mother Mt. Attri. Karam Singh absented himself from the village and in course of time Mt. Attri took possession of his share of the land as well. Mt. Attri also died in the year 1942. On 21 April 1944, Ratna who claimed to be Dipa's collateral brought a suit for possession of the entire land against Mt. Harnam Kaur, the daughter's daughter of Dipa, and four other persons. His allegations inter alia were that Karam Singh had not been heard of for about 27 years and should be regarded as civilly dead, that he was entitled to succeed to the land owned by Karam Singh and Dipa, that on Mt. Attri's death he was entitled to succeed to all the land which once belonged to Karam Singh and Dipa, that Mt. Attri was alleged to have made a will in favour o? Mt. Harnam Kaur and a gift in favour of Ram Gopal defendant 5, but he did not admit the factum of the will nor the validity of the will and the gift, and that Mt. Harnam Kaur had no right to keep the possession of the land. Mt. Harnam Kaur denied the plaintiff's allegations and his right to succeed to the land in preference to her. She also denied that Karam Singh could be regarded as civilly dead and alleged that the land was not ancestral qua the plaintiff and that Mt. Attri had made a will in her favour which was valid according to custom. The following issues were framed by the trial Sub-Judge: 1. Has Karam Singh not been beard of for more than seven years last and consequently he is to be considered as civilly dead? 2. If issue No. 1 is not proved, then what is the effect on the case 1 3. Is the land in dispute ancestral qua, the plaintiff f 4. If not what is its effect? 5. Whether the will mada by Mt. Attri in favour of defendant I is legally valid? 6. Whether the gift of land made by Mt. Attri in favour of Ram Gopal defendant 5 is legally valid? 7. Relief.

(3.) The first issue was found in the affirmative and the third, fifth and the sixth in the negative. Issue 2 was left undecided but in view of the findings on the other issues the plaintiff's suit was decreed in its entirety. The District Judge affirmed the decision of the trial Court. On further appeal the learned Single Judge of the Lahore High Court set aside the decrees of the Courts below in respect of half the suit land and confined the decree in the plaintiff's favour to the other half. L.P.A. No. 4 of 1948 is by the plaintiff and L.P.A. No. 9-E of 1947 is by Mt. Harnam Kaur defendant.