JUDGMENT

Abdul Rashid, J. - Sardarni Bhagwan Kaur, widow of Nihal Singh, a Dhilon Jat of village Mani Mazra, District Ambala, died on 7th April 1936, in the hospital of Mani Mazra. On 5th April 1936, she had made a will in favour of her nephew Tara Singh, defendant. This will was registered on 6th April. On the death of Sardarni Bhagwan Kaur the entire landed property left by her was mutated in the name of Tara Singh, defendant, on the strength of the will. The defendant also obtained possession of the house of the widow, and, recovered her moveable property from the supurdar to whom it had been entrusted by the police on her death. The present suit was instituted by Bibi Suraj Kaur, daughter of Bhagwan Singh, on 2nd October 1937, in respect of the entire property mentioned above and for Rs. 600 as mesne profits of the land for three harvests up to rabi 1937. It was stated in the plaint that the plaintiff was the daughter of Raja Bhagwan Singh who was a collateral of Nihal Singh, the husband of Sardarni Bhagwan Kaur, in the sixth degree, and that in the absence of any male collateral or any other nearer female heir of Nihal Singh, she was entitled to succeed. It was further pleaded that the will made by Sardarni Bhagwan Kaur in favour of the defendant was invalid, and that, in any case, she was not competent to make a will as she herself was a limited owner.

2. The defendant pleaded, inter alia, that though Bibi Suraj Kaur was the daughter of Raja Bhagwan Singh, the latter was not a collateral of Nihal Singh. Sardarni Bhagwan Kaur was the absolute owner of the property in her possession, and the will made by her, in favour of the defendant, was valid and could not be challenged by the plaintiff as it had been held by the High Court that she was not competent to contest alienations effected by her own mother. It was further pleaded that the suit for mesne profits could be tried by a Revenue Court only, and, in any case, no mesne profits had accrued. On these pleadings the trial Court framed the following issues:

1. Whether Raja Bhagwan Singh, father of the plaintiff, was a collateral of Nihal Singh, the last male holder of the disputed property?

2. If issue 1 be proved, whether the plaintiff is the legal heir of the said Nihal Singh after the death of his widow Mt. Bhagwan Kaur?

3. Whether Mt. Bhagwan Kaur made any valid will with respect to the disputed property in favour of Tara Singh, defendant?

4. If issue 3 be proved, whether the plaintiff is competent to challenge the will?

5. If issue 4 be proved, whether Mt. Bhagwan Kaur was in any way competent to make a will with respect to this property?

6. If the will be found to be invalid and inoperative, whether the plaintiff is not entitled to succeed to the property in dispute as against the defendant when issue 2 is decided in her favour?

7. Whether the suit for mesne profits in respect of agricultural land lies in the Civil Court?

8. If so, how much mesne profits accrued to the defendant for the three crops mentioned in the plaint?

3. It was held by the trial Court that Raja Bhagwan Singh, father of the plaintiff, was a collateral of Nihal Singh in the sixth degree, that Bibi Suraj Kaur was the legal heir of Nihal Singh after the death of his widow Sardarni Bhagwan Kaur, that the execution and registration of the will had been duly proved, but that the will was invalid as Sardarni Bhagwan Kaur was not in a disposing mind at the time of the making of the will. It was also held that plaintiff was entitled to contest the alienation by Sardarni Bhagwan Kaur as she was the heir. As regards mesne profits, it was found that no mesne profits had accrued. On these findings the plaintiff was granted a decree for possession of the immovable property left by Sardarni Bhagwan Kaur. The suit was dismissed with respect to the moveable property and mesne profits. Against this decision Tara Singh, defendant, has appealed to this Court. It was contended by Mr. Mehr Chand Mahajan, on behalf of the appella