Teja Singh, J. - (1.) THIS regular first appeal is directed against the judgment and decree of yun Judge lat Class Pati ala The facts briefly stated are as follows:
(2.) ONE Kishan Gir died leaving surviving him this widow' Mt. Jiwi and an adopted son called Tota Gir. Kishan Gir had also left some property out of which a shop with Choburas was mortgaged by Totagir for Rs. 3,0007 - on 26 -3 -191)5. On 23 -12 -1995 Totagir created a further charge on the said property. On the same day Totagir mortgaged for Rs: 1,000/ - Chobaras and a Kitchen which had also belonged to Kishangir. On 11 -1 -191)8 Mt. Jiwi brought a suit for a declaration that the said three mortgages made by Totagir were ineffective against her and she was not bound by them. Her allegations were that Kishan Gir had bequeathed entire property to her by mean' -; of a will made 17 -2 -1967 and according to the terms of will otagir had no right to any of Kishangir's property during Mst. Jiwi's life time. Totagir who was also a pleaded as a Defendant in the suit, absented himself and ex parte proceedings were taken against him. The other Defendants joined issue with Mt. Jiwi on almost all the points raised by her in the first place, they contended that Mt. Jiwi not being in possession of the suit property I could maintain an action for a mere declaration this point was put in issue and found in the Plaintiff's favour. The contesting Defendants also denied the existence of Kishangir's will upon which the Plaintiff based her right to maintain the suit and contended that Totagir being the adopted son 1964 Pepsu/9 and 10 and Chela of Kishangir inherited all the property left by the latter. They further contended that the Plaintiff was estopped from questioning the validity sp of the alienations made by Totagir and bringing the suit and also that the suit was barred by time.
(3.) IT may here be mentioned that Mt. Jiwi died during the pendency of the suit in the trial Court and the sons of Totagir were impleaded as her legal representatives, because it was alleged that Mt. Jiwi had made a will in their favour. The con testing Defendants denied the existence and the validity of the so -called will by Mt. Jiwi and plead ed that Totagir's sons could not continue the suit brought by Mt. Jiwi, but their objection was over ruled. On merits the trial Sub -Judge framed the following issues: 2. DID Kishangir deceased husband of the plain tiff make a will in favour of the Plaintiff. If so can she file the present suit on its basis without obtaining probate or letters of Administration? Is Tocagir adopted son of Kishangir and as . such the owner of the property in dispute? Did the Plaintiff represent to the Defendants that Totagir is the real owner of the property in dispute and now she is estopped to deny this? 3. Is the suit within time? 4 Is the Plaintiff legally married wife of Kishangir? 3. COULD Kishangir make a valid will in the presence of Totagir? All the issues were found in the Plaintiff's favour and the suit was decreed. The Defendants other than Totagir are the Appellants before us. Before adverting to the merits of the case I consider it necessary to point out that the issues framed in the case were defective. In the first place each of the issues Nos. 1 and 2 related to more facts than one and according to the provisions of law each fact should have been made the subject -matter of a separate issue. For example issue No. 1 relates to the will alleged to have been made by Kishangir and also to the Plaintiff's right to institute the suit without obtaining a probate or letters of administration. Both are distinct mutters, one involved a question of fact and the other that of law and in my opinion two separate issues should have been framed in respect of them. The first part of the second issue related to the adoption of Totagir by Kishangir. The second part raised the question of estoppel. I cannot understand how these matters could have been jumbled up in one issue. As regards the part of the issue relating to estoppel it indicates that the Plaintiff represented to the Defendants that Totagir was the owner of the property but by referring to the pleadings I find that no such plea was taken by the Defendants and this being the case I cannot understand on what material the issue was framed. I Now a plea of estoppel must always be based upon facts and when no facts are given no consideration can be given to the plea and accordingly no issue can be framed relating to it.;