Shamsher Bahadur, J. - (1.) THE surviving question for determination in this appeal of the Defendant, Kartar Kaur, against whom a suit for possession of two -thirds of the disputed land measuring 201 Kanals has been decreed by the two Courts below relates to the validity of the will executed by the owner of the estate, Mst Kishni, in favour of the Appellant on 27th of October 1963
(2.) MST . Kishni, who according to the Plaintiffs was about 90 years of age at the relevant time, but has been found by the lower appellate Court to be over 70, died on 1st of November 1963. Her husband Sher Singh owned landed property in West Pakistan and in lieu of it land had been allotted to her after the partition. The Plaintiffs, Hari Singh and his brother Gurbax Singh are the sons of Khazan Singh, brother of Sher Singh They claimed possession of Kishni's land which had come to be held by the Appellant Kartar Kaur, her niece (sister's daughter) in pursuance of the will executed by Kishni a few days before her death on 27th October 1963 In the suit the parties challenged each other's relationship with Kishni. The Plaintiffs asserted that she was only a limited owner incapable of making a will in respect of property which was ancestral. It was further pleaded by the Plaintiffs that they had already obtained a declaratory decree against Kishni prior to the institution of the present suit for possession. It has been found concurrently by the Courts below that the Plaintiffs as nephews of Sher Singh are the next heirs of Kishni; the Defendant Kartar Kaur is the niece of Kishni, who became a full owner by virtue of the provisions of the Hindu Succession Act and that the will which had been executed by the testarix was not a voluntary estamentary disposition. The only point on which the courts below differed in their findings related to the ancestral nature of the property. While the trial Judge found it to he ancestral, the lower appellate Court considered it to be non -ancestral ; in any event, nothing turns on this question as Kishni admittedly became a full owner capable of disposing of the property as she liked after the passage of the Hindu Succession Act. It may be mentioned that both the Courts also found in favour of the Defendant that proof did not exist of any prior declaratory decree in favour of the Plaintiffs against Kishni.
(3.) IT may be explained that the Respondents' counsel having conceded that their only sister Gurbachan Kaur is alive and shares equally with them in the estate of Kishni, a decree for two thirds of her holding has been passed, Gurbachan Kaur, the owner of the remaining one -third not having been joined as a Plaintiff in the suit.;