Judgment

MAHAJAN, C.J.I. : This is an appeal from the judgment and decree of the High Court of Judicature of Rajasthan dated the 5th of April 1950, modifying the decree of the High Court of the former Jaipur State dated the 3rd March 1949, on an application for review in a second appeal concerning a suit for possession of property.

2. The property in dispute originally belonged to one Ramchandra who died sonless in the year 1903. He was survived by his mother Shekori, his widow Mst. Badni and his two daughters, Bhuri and Laxmi. It is alleged that he made an oral will under which he bequeathed the property is dispute to his daughter Laxmi. On the 6th September 1906, Mst. Sheokari and Mst. Badni purporting to act in accordance with the directions of the oral will, executed and registered a deed of gift of the property in dispute in favour of Mst. Laxmi.

The gift deed contains the following recitals:

"These houses are made a gift to you according to the will of your father Ramachandra... In this way, these houses belonging to us were purchased by your father Ramchandra and he in his last days having made a gift of these houses to you, made a will to us that he had made a gift of that house to his daughter Laxmi and directed us to get the gift deed registered in her name. He further said that if we or our relations, kinsmen, creditors do raise any dispute with her he would Damangir hoonga catch hold of him by his garments.

According to his aforesaid will, we have got this gift deed executed in your favour, while in best of our senses and in discharge of our sacred duty enjoined by Dharma...... No other person except you has got any claim over the house. You deal with your house in any way you like. If any body takes back the land gifted by himself or his ancestors, he will live in hell as long as the sun and moon shines".

The scribe, it seems, did not in appropriate language express the directions of the two widows and his ideas of the legal situation were somewhat confused but there can be no manner of doubt that the two executants were not conferring themselves any title while they had in the property on Laxmi but were merely giving effect o the oral will as executors and were puting the legatee in possession of the bequeathed property in this manner. That the widows had no title themselves is evident from the fact that Mst. Shekori also joined in executing the gift deed. Admittedly Ramchandra s estate could not devolve on her.

3. Bhuri, the second daughter, died in the year 1907, while Mst. Badni, the widow, died in the year 1927. Mst. Laxmi remained in possession of the property till her death in the year 1928. After her death Balabux, her husband, on the 5th of July 1930 claiming as heir to her mortgaged the house in dispute to the defendant appellant Nathoo Lal and later on the 5th of October 1953 he sold it to him and put him into possession of it since he is in possession.

4. On the 4th October 1945, that is one day before the expiry of the period of 12 years from the date of the defendant s entry into possession of the house, the plaintiff, son of Mst Bhuri, sister of Mst. Laxmi, claiming as an heir to her estate, filed this suit in forma pauperis for possession of the house.

He alleged that he was in possession of the house till the 14th of August 1933 through his tenant, that after it was vacated by the tenant he locked it and went away to his native village Harmara; and that on the 27th September 1944 he came to know that the house had been taken possession of by the appellant during his absence. It was contended by him that Balabux had no right either to mortgage or sell the house and that Laxmi was not the absolute owner of the property but had only a limited estate in it, and on her death he was entitled to possession of it.

5. On he 28th of August 1947 the suit was dismissed by the Civil Judge, who held that Mst. Laxmi became the absolute owner of the property, and the plaintiff therefore had no title to claim possession