J. N. WAZIR C. J. :

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 defendant. The allegations 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 the house devolved on his wife, Mst. Durga Devi, who by will dated the 10th Phagan 2007 gave away the house to the defendant. Mst. Durga Devi died on the 20th Phagan 2007 and the defendant 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 defendant 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 defendant 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 defendant 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 absolute owner of that house and -she. was competent to will away that house to the defendant. The defendant further averred that he was a state Subject and, therefore the will was valid. The defendant produced a State Subject certificate and the trial court dismissed the plaintiffs suit holding that Mst. Durga Devi was the absolute owner of the property which she was competent to dispose of by will and that the defendant being a State Subject, the will was valid in law.

(3) It appears that the State Subject certificate of the defendant was cancelled after the suit was dismissed by the trial court and the Additional District Judge holding that the defendant being a non-State subject, a will in his favour disposing of immovable property was bad in law, allowed the plaintiffs appeal and his suit was decreed.

(4) The defendant came up in appeal against the decree of the Additional District Judge and It was heard by a Division Bench of this Court on 28-4-1958. In the course of arguments a point arose, whether a State Subject could will away immovable property in favour of non-state subject and whether such a will is valid in law? It was considered proper to refer this point for decision to the Full Bench.

(5) The case came up for hearing before the full Bench on 8-12-1958 and Mr. Sehgal appearing on behalf of the defendant appellant argued that there was no provision in any law precluding a person disposing of immovable property by will in favour of non-state subject. Our attention has been drawn to the provisions of S. 5 of the Jammu and Kashmir Transfer of Property Act which defines the term "transfer of property" as under:

"Transfer of property means an act by which a living person conveys properly in present or in future to one or more persons whether living or unborn or to himself .. ........."

and it is contended that the Transfer of Property Act has no application to disposal of property by will. In support of this contention reliance is placed on Zamindar of Bhadrachalam v. Venkatadri Appa Rao, AIR 1922 Mad 457 (FB), at page 468 in which it is held that the Transfer of Property Act applies only to alienations inter vivos and has no application to disposal of property by will. The same view was taken in Surendra Vikram Singh v. Munia Kunwar, AIR 1944 Oudh 65 where it is laid down as under:

"The Transfer of Property Act does not relate to wills, and transfer is defined in the Oudh Estates Act as an alienation inter vivos. A will on the other hand is not in form a transfer, but means "the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect alter his death".

(7) The learned counsel for the respondent conceded that the Transfer of Property Act d

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