TYAGI, J.—This is plaintiffs second appeal against the judgment and decree dated 31st July, 1961 passed by the District Judge, Jaipur District, Jaipur setting aside the judgment of the Munsiff, Jaipur District, Jaipur in a suit for possession and mesne profits of the disputed shop.

2. The plaint was filed in this case jointly by three persons Kesarlal, Magan Lal and Mst. Ladhi Bai. Kesarlal claimed himself to be the adopted son of Chhaganlal, while Maganlal joined as one, who claimed the succession to the property of Chhaganlal after the death of Mst. Godawari Bai, widow of Chhagan Lal and Mst. Ladhi Bai as the daughter of Chhaganlal. The disputed shop was rented out by Mst. Godawari Bai in her life time to Sunderlal, who happened to be the manager of the temple of Beespanthiyan. It is alleged that Sunderlal did not pay any rent to Mst. Godawari Bai till her death, and, therefore, after Godawaris death, a notice was served on defendant Sunderlal by Kesarlal to pay the rent to him. While replying to this notice Sunderlal intimated to Kesarlal that he was no longer the tenant of deceased Godawari Bai as the property was long back bequeathed by Mst. Godawari to the temple of Beespanthiyan. On receipt of this reply the suit was filed by the three plaintiffs against both Sunderlal and the temple Shriji Beespanthiyan praying that a decree for possession of the shop may be passed in their favour, and defendant No. 1 Sunderlal may be ejected therefrom, and he should be held liable for the payment of arrears of rent amounting to Rs. 260/- and for the mesne profits for retaining the possession of the suit property till it is vacated. The defendants contested the suit. It was pleaded on behalf of the temple Beespanthiyan that the shop was bequeathed by Mst. Godawari by executing a will Ex. A. 1 dated 24.4.1956, and that after the death of Mst. Godawari, who died on 17.8.1956, the temple treated itself the owner of the property and therefore it was prayed that the suit of the plaintiffs be dismissed. After trial the suit was decreed by the learned Munsiff, Jaipur District, Jaipur on 30th April, 1960 but on an appeal the learned District Judge of District Jaipur reversed the decree and held that the disputed shop vests in the temple by virtue of the will executed by Mst. Godawari who died on 17.8.56 when the Hindu Succession Act had come into force and she being the absolute owner thereof had the authority to bequeath the same in favour of the temple. It was also held by both the courts below that Kesarlal failed to prove himself to be the adopted son of Chhaganlal and therefore he had no right to file the suit. Kesarlal did not Challenge this finding against him and therefore Mst. Ladhibai, daughter of Chhaganlal alone has filed this appeal.

3. Learned counsel appearing on behalf of the appellant has assailed the judgment of the first appellate court only on three points :

(1) The will Ex.A. 1 was executed by Mst. Godawari on 24.4.1956 when she was a limited owner and had no right to bequeath the property in favour of the temple, and, therefore, such a defective will could not pass any valid title to the legatee in the property.

(2) The defendants have failed to prove the due attestation of the will Ex. A. 1 as the attesting witnesses have not stated that they attested the document in the presence of Mst. Godawari.

(3) The will in favour of the temple which is not a juristic person is void. Reg. Point Mo. 1—The main contention of learned counsel for the appellant is that the property bequeathed by the testator is vested in the legatee from the date of the execution of the will and as Mst. Godawari was not the absolute owner of the property on the day the will was executed she had no authority to transfer in favour of the legatee cannot be cured even by the provisions of the Hindu Succession Act. In support of this plea reliance has been placed on Tirath Ram vs. Mst. Khan Devi (1), Jagdeo Singh and others vs. Mt. Raja Kuer(2), and A.R. Srinivas

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