Mr. Ameer Ali :—

This is an appeal from a judgment and decree of the Chief Court of the Punjab, dated the 17th of July 1909, and the dispute relates to the property of one Daula, a Jat by origin who migrated from Bikanir many years ago and settled in the Ferozepore District. He died in April 1902, leaving a large family of sons and grandsons and considerable landed property.

The following pedigree will explain the relative position of the contesting parties in the present litigation :-

In 1884 Daula had executed a will, which was duly registered at the time, under which his surviving sons and a grandson, Ram Sukh, whose father Pura had died, were to take his properties substantially in equal shares.

In January 1898 he revoked his former will and made another, which also was registered, by which, excluding Chetan and Tulsa, he left his property in six equal shares to his four other surviving sons and to Ram Sukh, the son of Pura, and to Bhinja and Lekh Ram, the two sons of Asa, who had died in the meantime.

On Daula's death there were the, usual mutation proceedings for the registration of the names of his successors in the Collector's Register, in the course of which the devisees under the second will claimed to have their names recorded to the exclusion of Chetan's and Tulsa's representatives. In view, however, of the provisions of the will of 1884, the Collector ordered the names to be entered in eight shares and referred the contending parties to settle their respective claims in the Civil Court. This happened in September 1902, and in December following, the present suit was brought by the persons taking under the second will against the representatives of Chetan and Tulsa, defendants 1 to 7, to establish the plaintiffs' claim, under the will of 1898 and to recover possession of the one-fourth share of Daulat's lands in respect of which Chetan and Tulsa had been recorded as owners. This one-fourth includes the shares of Ram Sukh and Bhinja, who, on their refusal to join in the action, had been made defendants (8 and 9).

The defendants 1 to 7 raised various objections to the plaintiffs' suit, the nature of which is indicated by the issues framed by the Court of first instance. They are as follows :-

(1) Whether the property in dispute was acquired by Daula alone or jointly by him and his sons.

(2) Whether the will of 1898 was executed by Daula voluntarily and whether he was competent to make such a will.

(3) If so, whether the will has been cancelled by any subsequent act on his or on the part of the plaintiffs.

Before trial, however, the parties agreed to refer the dispute to arbitration. The arbitrators made an award, and on the 25th November 1903 the District Judge, in accordance therewith, dismissed the plaintiffs' claim. On revision under S. 622 of the Civil Procedure Code of 1882, the Chief Court reversed the order of dismissal and remanded the case to be disposed of according to law. On remand the first Court went into evidence and in the result dismissed the plaintiffs' claim, principally on the ground that the lands in dispute were not the self-acquired properties of Daula over which he had a right of disposition dehors the ordinary law under which ancestral property is inheritable by sons and grandsons per stirpes in equal shares. The District Judge does not say this in so many words, but this is clearly the effect of his judgment. On the other issues he does not appear to have come to definite findings.

On appeal by the plaintiffs the Divisional Judge was of opinion that the properties to which the suit related were the self-acquired properties of Daula within the Hindu Law, and that the will of 1898 was not open to the objection of having been executed under undue influence or without due comprehension; but he considered that the subsequent acts of Daula showed that he had revoked or cancelled it. He was further of opinion that no sufficient foundation was laid for the admission in the first Court of secondary evidence of