1. The suit out of which this second appeal has arisen was instituted by the plaintiff for possession of the house described in the plaint against the defendent. The allegation made in the plaint were that Maya Shah the grand father of the plaintiff and Gopi Shah the grand father of one Amar Nath were own brothers. The house in dispute belonged to Amar Nath who died about ten months before the institution of the suit. On his death house devolved on his wife, Mst Durga Devi, who by will dated 10th Phagan 2007 gave away the house to the defendent. Mst Durga Devi died on the 20th Phagan 2007 and the defendent took possession of the house on the basis of the will made in his favour by Durga Devi. The Plaintiff brought the suit against the defendent alleging that Mst Durga Devi, being a limited owner was not competent to make a will in regard to the house inherited from her husband. It was further pleaded that the defendent being a non-state subject, a will disposing of immovable property could not be made in his favour.

2 The suit was resisted by the defendent on the ground that the house in dispute was the self acquired property of Amar Nath and after his death Mst Durga Devi was the

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