Hon™ble Pt Shiam Krishna Dar-This is an appeal against a judgment and decree of the High Court dated 16th, Jeth 2003, by which a judgment and decree, dated Bhadon 5, 2002, of the Senior Subordinate judge of Kashmir, was reversed; and whereby a judgment and decree, dated Chet 31, 2001, of the First Additional Munsiff Srinagar, was affirmed.

On Poh 11th, 1993, Rajasingh, a Hindu resident of village Chandargam, Tehsil Awantipura, executed a will by which he devised a portion of his estate situated in villages Baragam and Chatargam of Tehsil Awantipura, in favour of the respondent who was his third wifes son by another husband. The two sons of Rajasingh by a previous wife, named Rangil Singh and Chattar Singh, who are now represented by the appellant, challenge this will on the ground that it is inoperative, as the property disposed of by it was the coparcenary ancestral property of Rajasingh and his two sons Rangilsingh and Chattarsingh which Rajasingh had no power to dispose of by his will.

The said will was also attacked on the ground that Rajasingh at the time of its making had not a sound disposing mind. And the respondents had also challenged the parentage of Rangilsingh and Chattarsingh and their right to maintain the suit but these questions are concluded by the concurrent findings of the Courts below and do not arise for the consideration of the Board.

The trial Court and the first Court of appeal concurrently found that the property subject of the will was the ancestral property of Rajasingh which could not be validly disposed of by his will and granted to the appellants the declaration claimed. The High Court in second appeal came to the conclusion that the will was made after the promulgation of the Ailan of 1990 and the necessary effect of the promulgation of that Ailan was to make the property in possession of Rajasingh as his self-acquired property which he could dispose of by will. And in this view of the matter it dismissed the claim.

The land, which was disposed of by the will by Rajasingh had been an ancestral land of the family. It came down to Rajasingh from his father Madan Singh and as both of his sons Rangil Singh and Chattarsingh were born long before the promulgation of the Ailan of 1990 and the will of 1993, they became entitled, on their birth, to an interest in the said property. It is, therefore, obvious that if Hindu Law governs the case, the property in the hands of Rajasingh would be ancestral property held by him in coparcenary with his two sons Rangil Singh and Chattarsingh which he would have no power indispose of by will and any will made by him qua that property would be wholly inoperative.

The respondent seeks to avoid this result on two grounds. He contends that by Ailan of 1990, propriety rights were conferred for the first time on Assamis in this valley and as the recorded Assami at the time of the promulgation of the Ailan, was Rajasingh he became the sole proprietor and the property in his possession, therefore, became his self-acquired property. He further contends that prior to the promulgation of the Ailan, the succession to the property in suit was not governed by Hindu Law but by statute and the property devolved upon Rajasingh on the death of his father Madan Singh not under Hindu Law but by some statutory succession in which his sons on their birth acquired no interest.

The material provision of the Ailan of 1990 is in these words:-

" His Highness the Maharaja Bahadur has been further pleased to order that the concession made to the agriculturists of Mirpur district on account of their good behavior shall be extended to the Assamis of the Kashmir Province and proprietary right will be conferred on the Assamis without recovery of any Nazarana."

By this Ailan proprietary rights were no doubt conferred for the first time upon the Assamis. And one effect of the conferment of the proprietary rights was that it enlarged the quantum of interest which the Assamis prev

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