- (1.) This appeal under clause X of the Letters Patent has been filed by the defendant-appellant against the judgment and decree of the learned Single Judge whereby the judgments and decrees of the Courts below have been set aside and the plaintiff's suit has been decreed.
(2.) Ditto, Kisso and Sunder Singh were three brothers who held the land of their father jointly in equal shares. Kisso had died leaving behind his son Buta Singh and his widow Shanti. The latter had remarried with Ditto who also died long ago without leaving an issue except his widow Shanti. The mutation of the estate of Ditto had been sanctioned in favour of Shanti being his widow. She was thus in possession of the holding of Ditto as a life estate. She executed a gift deed of her land in favour of Mohindro daughter of Buta Singh son of Kissi on 27th December, 1955. She died on 6th October, 1956 after the enforcement of the Hindu Succession Act. Earlier Mangal Singh s/o Sunder Singh had filed a declaratory suit challenging the validity of the gift deed, but the same was dismissed vide judgment dated 17th October, 1957, Exhibit D.2, on the ground that the suit was speculative as Shrimati Kisso sister of Ditto was admittedly alive and she was the nearer heir than Mangal Singh who was a collateral of Ditto. The suit for possession out of which the present appeal has arisen was filed by Shrimati Kissi on 11th April, 1962 that is within six years from the death of the donor who died on 6th October, 1956. It was alleged in the plaint by Shrimati Kissi that she being the preferential heir than Mahindro, the donee, is entitled to succeed to the property of Shrimati Shanti. Meanwhile Shrimati Kissi died during the pendency of the suit in the trial Court on Ist May, 1962 and her sons and daughters were brought on the record as her legal representatives. On 27th June, 1963, the trial Court dismissed the suit on the ground that it was necessary for the plaintiff to have challenged the gift deed which was an impediment on her way. After that they filed an appeal against the judgment of the trial Court dismissing their suit and also made an application for permission to amend the plaint so as to add the averments for challenging the validity of the gift made in favour of the contesting defendant, namely Mohindro donee. The said appeal was allowed and the judgment of the trial Court was set aside and the application for amendment of the plaint was also accepted. Consequently the plaintiffs filed the amended plaint and alleged that Shrimati Shanti who had the life interest only had no power or authority to make a gift of the holding of her husband and that the parties were governed by the custom in matters of alienation and succession.
(3.) In the written statement filed on behalf of defendant-appellant, it was urged that the plaintiffs had no legal right to challenge the gift and the suit was time barred. On the pleadings of the parties, the trial Court framed the following issues :- 1. Whether the plaintiffs and defendants 6 to 9 are the children of Mst. Kissi deceased ? OPP. 2. Whether the plaintiffs have locus standi to challenge the gift in question (Ext. D.1) effected by Mst. Shanti in favour of defendant No. 1 ? OPP. 3. Whether the gift was effected for consideration and legal necessity and is binding upon the plaintiffs ? OPD (Onus objected to). 4. Whether Shri Ditto deceased and his family was governed by custom in matters of succession and alienation ? If so, what is that custom ? OPD. 5. Whether the suit is within time ? OPP. 6. Whether the plaintiffs are preferential heirs ? OPP. 7. Whether the plaintiffs are entitled to possession of the whole suit land ? OPP. 8. Whether the suit is barred by the principles of res-judicata ? OPD. 9. Whether the plaintiffs are estopped by their acts and conduct from bringing this suit ? OPD. 10. Whether the suit is collusive as alleged ? If so, to what effect ? OPD. 11. Whether the children or two other deceased real sisters of Ditto are necessary parties ? OPD. 12. Whether the amended plaint is not in accordance with the orders of appellate Court ? OPD. 13. Relief.;