JUDGEMENT

Appeal (No. 109 of 1933) from a decree of the High Court (April 7, 1931) varying a decree of the Subordinate Judge, First Class, Ludhiana (November 3, 1924).

One Harbans Lal, a Thapar Khatri of Ludhiana, died sonless on September 20, 1900, leaving him surviving a widow, Musammat Biro, the present appellant, and a minor unmarried daughter, Musammat Ishri, by a predeceased wife. The widow, purporting to act under the terms of a will of Harbans Lal, dated August 24, 1900, took possession of the whole of his estate, which consisted of movables and of agricultural land and house property. By her will, dated July 6, 1920, she stated that she had given u half share in a haveli (house) situate at Lucha Bazar, and about 21 bighas of culturable land to her relative, Bhagat Ram, and she also bequeathed various properties for certain charitable and educational purposes.

The respondents, who claimed to be the reversionary heirs of Harbans Lal through a common ancestor, Mauja Mal, brought the present action on January 4, 1922, against Musammat Biro and Bhagat Ram alleging that Musammat Biro as a Hindu widow had a right to be in possession of her husbands property merely for Maintenance for life; that she had transferred by way of gift certain properties belonging to her late husband in favour of Bhagat Ram, and that the gift was null and void as against their reversionary rights, and they claimed a declaration accordingly.

The facts appear more fully from the judgment of the Judicial Committee.

The Trial Judge held, first, that the plaintiffs had not proved their relationship with Harbans Lal; and secondly, that under her husbands will Musammat Biro was the absolute owner of the estate and was entitled to make the gift in question. He accordingly dismissed the suit.

On appeal the High Court (Harrison and Tek Chand JJ.) granted a decree in favour of the plaintiffs. The Court came to the conclusion that the plaintiffs were the nearest male agnates of Harbans Lal; and they also held that the will of Harbans Lal which was set up was not a genuine document.

1936. Nov. 27, 30. De Gruyther K.C. and H. K. Ghose for the appellant.

The respondents did not appear.

1937. Feb.1. The judgment of their Lordships was delivered by Sir Shadi Lal. On September 20, 1900, one Harbans Lal, a Khatri of Ludhiana in the Province of the Punjab, died leaving him surviving a widow, Musammat Bir Wanti alias Musammat Biro, and a daughter, Musammat Ishri, by a predeceased wife. The widow took possession of the whole of his estate, which consisted not only of movables, but also of agricultural land and house property. In July, 1920, she made a will, by which, after declaring that she had previously gifted certain immovable properties to her relative, Bhagat Ram, she gave various properties to charities. The dispute in the suit which has led to this appeal is confined to the gift made to Bhagat Ram, the validity of which is contested by the plaintiffs, who claim to be the collaterals of Musammat Biros husband, Harbans Lal. They challenge her authority to make the transfer, and ask for a declaration that it should not adversely affect their right to succeed to the estate after her death.

The Trial Judge held that the plaintiffs had not proved their relationship with Harbans Lal, and he dismissed their suit, not only on that ground, but also on the ground that, under her husbands will, the widow was the absolute owner of the estate, and was entitled to make the gift in question. On appeal, the High Court at Lahore dissented from his judgment, and granted a decree in favour of the plaintiffs. From that decree Musammat Biro has brought the present appeal, which has been heard ex parte.

Before pronouncing upon the main questions urged on behalf of the appellant, their Lordships desire to clear the ground by disposing of a matter which does not appear to have been raised in the Courts below. It is argued that, while in paras. 4 and 9 of their plaint the plaintiffs soug