The judgment of the Board was delivered by:-

Honble Chowdhary Niamat Ullah- This appeal arises from a suit brought, by the appellant for possession of land measuring 82 kanals and 18 marlas detailed in paragraph 1 of the plaint, valued at Rs. 3,633 situate at village Akura Tehsil Anantnag and at Kothar. It is no longer in dispute that the plaintiff is the adopted son of one Vishnu Pandit The defendant is the latters daughter. The dcfendant claims the property under a will left by Vishnu Pandit which is dated 5th Poh, 1998. He died in Phagan, 1998. She had contested the suit on some other grounds but the only controversy now is whether the will validly bequeathed the property in dispute to the defendant. The Court of first instance, the Subordinate Judge Anantnag decreed the suit holding that the will of Vishnu Pandit was invalid as against his adopted son the plaintiff. The only ground on which his decision is based is " that Vishnu Pandit was not competent to alienate his property by a gift or otherwise after the adoption of the plaintiff and in the presence of his adopted son." He does not mention any ground of in competency on the part of Vishnu Pandit" to dispose of what on the face of his judgment was Vishnu Pandits own property. On appeal, the learned Judges of the High Court found that Vishnu Pandit was not originally the proprietor of the lands in dispute being no more than an assami, but that on the passing of the Allan of 1990 under which all assamis became proprietors, Vishnu Pandit acquired proprietary rights in those lands. Accordingly the learned Judges held that the Property in dispute should be considered to be the self-acquired property of Vishnu Pandit which he was competent to dispose of by will.

There is no doubt that if the property in dispute was m law the self-acquired property of Vishnu Pandit his adopted son acquired no interest in it in his lifetime. The plaintiffs case as argued before the Board proceeds on a ground which is not mentioned in the judgments of any of the two Courts below It is contended that the lands in dispute in the hands of Vishnu Pandit were ancestral property though held by him in assami rights like his father and possible higher ancestors. It is pointed out that the plaintiff was adopted admittedly sometime before the Allan of 1990, and that the property in the hands of Vishnu Pandit being ancestral, he (plaintiff) became a co parcener with him In this view, it is argued Vishnu Pandit and his adopted son the were co-sharers in the ancestral lands held in assami rights when the Ailan of 1990 was promulgated. The Ailan operated not only in favour of Vishnu Pandit, but also in that of the plaintiff. The proprietary rights thus accruing to them jointly were as much joint family properties in their hands as the original assami rights, the assumption underlying this line of argument is the essential fact that the lands in dispute had been inherited by Vishnu Pandit from his father or a higher ancestor. The defendant respondents learned counsel has contended that the plaintiff did not allege in the Courts below that the property in the hands of Vishnu Pandit before the Ailan was ancestral property nor is there any evidence on the record in support of that assertion. It may be conceded in favour of the defendant that the plaint is not expressly based on the allegation that the will of Vishnu Pandit was invalid as the same related to joint family property. It was, however, the plaintiffs case as is stated in the oral pleadings that the properly in the hands of Vishnu Pandit was ancestral. No importance seems to have been attached to this aspect of the case by the trial Judge when he framed the issue. He assumed that if the will was executed by Vishnu Pandit it would follow automatically, at least, prima facie, that he was not competent to dispose it of. The onus was thrown on the defendant to establish his right to continue in possession under the will if it proved to be genuine. This is c

Click Here to Read the rest of this document