Judgment

Dr. ANAND, J. :- This appeal by special leave is directed against the Judgment and Decree of the High Court of Madhya Pradesh dated 22, August, 1980 made in First Appeal No. 233 of 1977 setting aside the Judgment and Decree of the trial Court and decreeing the suit of the plaintiff/ respondent.

2. The only controversy between the parties which was contested both before the trial Court and the High Court was whether the will Exhibit P-4 conferred only a limited estate or an absolute estate on Sarjabai in so far as the suit property is concerned. The learned District Judge held that the estate which was bequeathed by Pancham to defendant No. 1 Sarjabai gave her an absolute right thereto and consequently except on the question of adoption, the suit filed by the plaintiff-respondent was dismissed with cost.

BRIEF FACTS

Tula Ram was the common ancestor of the parties. He had a son by name Pancham, who died on 6-8-1926. Pancham had 3 wives by name Smt. Punji, Smt. Kaushalya and Smt. Sarupa. Sarjabai, defendant No. 1 was the daughter of Smt. Punji, while Gopi Chand alias Korat was adopted as a son by Smt. Kaushalya and Pancham. Kashi Ram plaintiff-respondent is the son of the said Gopi Chand, the adopted son of Smt. Kaushalya and Pancham son of Tula Ram. According to the pleadings of the parties, Pancham executed a will on 16-5-1907 in favour of Sarjabai, whereby he bequeathed certain sir lands and a house to her. Gopi Chand died leaving behind Kashi Ram as his son. On the death of Pancham. Sarjabai, the daughter of Pancham through Smt. Punji, who was in possession of the suit property, as a legatee under the will of Pancham, made a gift of the suit land and the house in favour of defendants Nos. 2 to 10 (defendant No. 3 is since dead) on 28-10-1971 as trustees of Gadhekar Tapti Dharmshala, Multai. The plaintiff-respondent thereupon filed a suit claiming that the will dated 16-5-1907 (Ex. PA) created only a life interest in favour of Sarjabai in the property bequeathed thereunder and, therefore, the transfer made by her through the gift deed dated 28-10-1971 was not binding on him beyond the life-time of Sarjabai and that he was entitled to be put in possession of that property, after her death, as an exclusive owner of the said property. The defence of defendants 2 to 9 on the other hand was that the will (Ex. PA) conferred an absolute estate on Sarjabai and therefore she was competent to alienate the suit property absolutely and the transfer by sale in their favour was valid. The trial Court found in favour of defendants 2 to 9 and dismissed the suit. The defendants filed an appeal and at that stage, with the permission of the Court, amended their written statements in the High Court and raised an additional plea that the suit land being sir had vested in the State on the coming into force of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals. Alienated Lands) Act, 1950 (hereinafter the Abolition Act) and that Malik-Makbuza rights had been conferred on her by virtue of S. 38 of the Act since she had been in possession of the suit property on the date of the Abolition Act, and therefore the grant in her favour which was independent of the Will conferred an absolute heritable and transferable title in her.

3. That the lands in question were sir in nature and were in the possession of Sarjabai at the time of the coming into force of the Abolition Act, and that Gopi Chand was the duly adopted son of Pancham and Kaushalya were not disputed before the High Court. It is in the background of these admitted facts that the controversy as noticed in the earlier part of this judgment is required to be resolved by us as that alone is the question at issue in the case.

4. Learned counsel for the respondent has produced before us a translated version of the Will (Ex. P-4), the correctness of which has not been doubted by the opposite side. It is the construction of the Will which will determine the controversy as raised before