- (1.) The fact giving rise to this second appeal are as under: The property in dispute belonged to one Hukmi who died on the 17th October 1923, leaving a widow Mst. Tabi and a widow of his predeceased son Mst. Chandar Kaur. On the 6th June, 1911, Hukmi had made a will, Exhibit P. 15, by virtue of which he bequeathed one-third of his estate to his brother-in-law Nathu, (brother of Mst. Tabi) one-third to Mst. Tabi and the rest one-third to Mst. Chandar Kaur. It was provided in the will that Mst. Tabi and Mst. Chandar Kaur shall not be able to alienate the property in any way and shall keep the property only till their lives and for their maintenance. After the death of Mst. Tabi and Mst. Chandar Kaur their share was also to go to Nathu. On the 13th February, 1925, the entire property was mutated in the name of Mst. Tabi and Mst. Chandar Kaur, but on a suit brought by Nathu for possession of his one-third share a decree was passed in his favour on the 21st April, 1925, which the result that one-third of Hukmi's property went over to Nathum one-third to Mst. Tabi and one-third to Mst. Chandar Kaur. On the 6th August, 1926, the present plaintiffs excepting Bhalla and Kehar Singh, brought a suit for usual declaration challenging the validity of the will. The said suit was dismissed by the trial Court and the decree of the trial Court was confirmed by the District Judge and also by the Lahore High Court. Some time between 1931 and 1934 Nathu died and his brother Jangi inherited him so far as one-third share of Hukmi's property was concerned. On the 10th November 1934, Mst. Tabi died and her share was mutated in the name of Jangi by means of mutation Exhibit P. 7 attested on the 18th August, 1935. On the 28th August, 1945, the present plaintiffs filed a suit for possession of this one-third share left by Mst. Tabi. On the 3rd May, 1948, the suit was dismissed by the trial Court but in appeal the plaintiffs were permitted to withdraw the suit with leave to bring a fresh suit. On the 2nd June, 1944, Mst. Chandar Kaur also died and on the 18th February, 1948, the present plaintiffs brought another suit for possession of the property left by her. On the 29th March, 1949, this suit was also withdrawn with leave to bring a fresh suit. In July, 1949, the present suit was brought for possession of the entire land left by Hukmi on the allegations that the property held by Hukmi was ancestral, that Hukmi could not have made a will in respect of the said property, that the alleged will made by him had never in fact been made, that the alleged will gave absolute estate to Mst. Tabi and Mst. Chandar Kaur, and on their death the plaintiffs were the proper heirs qua that property, that they were collaterals of Hukmi deceased and were entitled to succeed to the entire property left by him. The suit was contested by Jangi, real brother of Nathu, who claimed to be the successor-in-in-terest of Nathu. The defendant did not admit the ancestral nature of the property and pleaded that Hukmi had executed a valid will in favour of Nathu and others. Several other pleas were also raised by him which are not very much relevant for the purpose of decision of this appeal. the trial Court framed as many as 10 issues in the case and after recording its findings on them dismissed the plaintiffs' suit with costs. In appeal before the District Judge, the findings of the trial Court only on the following points were assailed:- (1) proof and interpretation of the will (2) application of the doctrine of res judicata, (3) ancestral nature of the property, and (4) limitation. The learned District Judge found that the alleged will had been executed by Hukmi and gave only the life interest to Mst. Tabi and Mst. Chandar Kaur. He also found that on testator's death Nathu got vested interest in the property which devolved on the defendant Jangi. It was found that the decision in the previous suit did not amount to res judicata and that the suit was barred by time. On the aforesaid findings the learned District Judge dismissed the appeal with costs. The plaintiff's have now come up to this Court in second appeal.
(2.) Mr. F. C. Mital, learned counsel for the appellants have urged before me the following points:- 1. that the will had not been executed in accordance with the provisions of section 63 of the Indian Succession Act. 2. that the will gave absolute estate to Mst. Tabi and Mst. Chandar Kaur, and Nathu could not possibly succeed to the property left by them, 3.that Nathu had only a contingent interest in the property and he himself having predeceased the widows nothing devolved on his heirs, 4. that the suit should have been held to be within limitation
(3.) The first point has no force because the will in the preset case was executed in 1911 when the Indian Succession Act was not in force. Section 63 of the Indian Succession Act has no retrospective operation and cannot affect the validity of the wills executed before it came into operation.;