- (1.) The property in dispute in the present case consists of a site and three shops situate at Amloh which was in the erstwhile Nabha State. Nagina Mal was the owner, of the property and alter his death it devolved upon his widow Mst. Basanti. On 12-3-2003 Samvat Mst. Basanti made a will bequeathing the entire property to her daughter Mst. Ishro, After Mst. Basanti's death the Plaintiff who claimed to be Nagina Mal's collateral brought a suit for possession of the property, against Mst. Ishro and for a permanent injunction against the other defendants who were occupying the shops as tenants prohibiting them from paying the rent of the shop to Mst. Ishro His allegations were that the property was ancestral qua him, that Mst. Basanti had No. power to make a will in favour of Mst. Ishro and that on Mst. Basanti's death he alone had the right to succeed to the property as Nagina Mal's heir. Mst, Ishro alone contested the suit. She denied that the Plaintiff was related to her father or that the suit property was ancestral qua him. She further pleaded that according to the law of Nabha State Mst. Basanti, who was the absolute owner of the property hack every right to leave it to her by a will and that even the Plaintiff was her father's collateral, he had no right to the property in her presence. The trial Court dismissed the Plaintiff's suit holding that regardless of the will made by Mst. Basanti Mst. Ishro had better right to succeed to the property than the Plaintiff. On appeal the District Judge set aside the finding of the trial Court and decreed the Plaintiff's suit. Being dissatisfied with the appellate decree of the District Judge, Mst. Ishro preferred a second appeal to this Court.
(2.) The appeal, first came up before my learned brother and since it involved a difficult and important question relating to the interpretation of the Nabha Law which admittedly governed the case, he referred it to a Division Bench.
(3.) Before dealing with the provisions of the Nabha law on the interpretation of which the fate of the case depends, I may point out that so far as the questions of fact are concerned there is no difference between the parties counsel. First of all they are agreed that the Plaintiff is the third degree collateral of Nagina, husband of Mst. Basanti. The pedigree-table is as follows: RULDU | _____________________ | | Mohan Pala | ____|__________ ____________ | | | | | | | | Ganesha Bishna Chanan Munna Nagina | | Rulia widow Mt. Basanti | | Om Parkash Mt. Ishro (Plaintiff). (defendant), Of the three sons of Pala, Munna and Chanan died childless. The same was the case with Bishna one of the two sons of Mohna. Secondly the parties' counsel are agreed that the said site and shops could not be regarded as ancestral, the reason being that though one of the shops was proved to have been acquired by Ruldu, of the two remaining shops, one was acquired by Pala & the other by Mohna & it is not possible to fix the identity of those shops and the site. The third point upon which there is agreement between the parties' counsel and which follows from the second point is that none of the said shops and the site were acquired by Nagina.;