IMPORTANT POINTS
When a widow acquires property by way of gift or Will, section 14(1) of the Hindu Succession Act is not attracted.
Restricted estate can be created under U.P. Zamindari Abolition and Land Reforms Act, 1951.
Even after the dismissal of a suit, a purchaser is subject to lis pendens, if an appeal is afterwards filed.

JUDGEMENT

H.L. Gokhale J.

This appeal under Article 136 of the Constitution of India raises the question as to whether a bhumidhar having a right to transfer his land under U.P. Zamindari Abolition and Land Reforms Act, 1951 (the U.P. Act for short), while bequeathing his bhumidhari right in favour of a beneficiary can impose a restriction on the right of the legatee to make it a life estate, and if he does so whether the interest of the holder of a life estate shall continue to remain so restricted, or whether such a legatee can claim his interest to be unrestricted to affect the bequest in favour of other beneficiaries. The second question is with respect to the application of doctrine of ‘lis pendens’ in the facts of the present case. These questions have arisen in the present appeal which seeks to challenge the judgment and order dated 18.11.2004 passed by a learned Single Judge of Allahabad High Court dismissing the Second Appeal No.982 of 2004 filed by the appellant herein (original plaintiff). By dismissing this Second Appeal, the learned Single Judge has confirmed the judgment and order dated 28.7.2004 passed by the Additional District Judge, Bijnaur in Civil Appeal No.97 of 2002 whereby the learned Additional District Judge has dismissed the said appeal of the appellant herein against the judgment and order dated 13.2.2002 passed by the Civil Judge, Junior Division, Najibabad which dismissed the Original Suit No.121 of 1994 filed by the appellant.

Facts leading to this present appeal are as follows:-

2. One Umrao Singh S/o Jiraj Singh, R/o village Sarkara Khed in Tehsil Najibabad, District Bijnaur, U.P. owned certain parcels of bhumidhari lands which are covered under the provisions of the above U.P. Act. He executed a will on 30.12.1985 concerning these lands. He stated in the will that he had no issues, and had a younger brother by name Jagan Singh (the appellant herein) who was looking after him. The will further stated that during the testator’s life the testator will remain owner in possession of the said property with all the rights. However after his death, barring a plot bearing No.140-8-10-19, Jagan Singh will become the exclusive owner of all his movable and immovable properties. As far as this plot No. 140-8-10-19 is concerned, Umrao Singh stated in his will as follows:-

“My wife Dhanwanti R/o village Sarkara Khera will be the owner of my share of plot No. 140-8-10-19 but the restriction would be that she would not have any right to transfer the said property that would pass on to her, but this restriction will not apply to Jagan Singh.”

3. It is the case of the appellant that he has been cultivating this plot No. 140-8-10-19, and further that he and the above referred Dhanwanti (the first respondent herein) each took half share of the crop therefrom. It was also his case that Dhanwanti was not the lawfully married wife of Umrao Singh, and after the death of Umrao Singh she had planned to dispose of the above plot of land in favour of one Ghasita Ram S/o Ram Chander Singh (the respondent No.2 herein). According to the appellant, she did not have such right, and therefore he filed the above suit for permanent injunction to restrain her from disposing of this particular parcel of land either to this Ghasita Ram or otherwise.

4. The respondent No.1 defended the suit, and contended that she was a lawfully married wife of Umrao Singh. She submitted that the will was a forged one, and that the defendant No.2 had no connection with this parcel of land. The defendant No.2 contended in his written statement that he had been wrongfully joined in the suit, and that the respondent No.1 herself continued in possession of the land.

5. The learned Civil Judge who tried the suit, framed the issue as to whether the appellant was entitled to prohibit the respondent No.1 from selling half share of the disputed land as claimed by him. The learned Judge held that the will was a duly executed one, and also noted that it had bee