Sm. Chandri and another vs Sm. Laxmi Bai and another

Nigam, J.C.

Sm. Laxmi Bai filed Civil Suit No. 3 of 1944 against Ramdeo, Sm. Chandri and one other claiming possession of the property mentioned in para 1 of the plaint and a decree for Rs. 150/- by way of damages. The suit was contested. The suit related to a certain agricultural property & a share of a well situated near Kalabagh, Ajmer, within the limits of the Ajmer Municipality. One of the points raised by the two contesting defendants was that the will, dated 13-9-1933, executed by Sm. Luni (in whose favour the sale-deed in respect of the property exists) dealt with this property.

The second issue framed by the learned trial Judge was ''Was the suit property stridhan property? If so, what is the effect on, the will dated 13-9-1933''? The issue is not happily worded. The learned counsel for the parties agree that what was intended was to consider the effect of the will. No issue was framed to consider the fact whether the will, in fact, dealt with the property in suit or not. The learned trial Judge appears to have been under the impression that the parties did not disagree on this point. The learned counsel for two contesting defendants also urges that there was no contest on this point and it was conceded that the will dated 13-9-1933 in fact dealt with the property in suit.

The learned counsel for the plaintiff challenges this assertion and states that from the very beginning he was asserting that the will did not deal with this property. The learned counsel is unable to refer me to any document on the file of the trial court in support of his contention. The frame of the issue also indicates that there was no dispute as to the identity of the property dealt with in the will. I am, however, of opinion that this question having been considered by the learned District Judge has to be decided particularly as this is a matter really in dispute between the parties.

Accordingly, I have not heard the appeal on other points.

I, therefore, set aside the judgment and decree granted by the learned IInd Additional Subordinate Judge and the appellate judgment of the learned District Judge and direct that a clear issue be framed to consider the question whether the will deals with the property in suit, the parties be given an opportunity to adduce evidence on the point and the case be decided in accordance with law. The appeal is accepted in terms of the order above. In the appeal respondent 1 will pay the cost of the appellants. The-costs in the two courts below will abide the final result.

There is also a cross-objection. This, in view of the order in the appeal, becomes infrucuous and is filed accordingly. The parties will, bear their own costs in the cross-objection.