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On the strength of a Will dated 25th May 1959, executed in her favour by one Purohit Mani Ram, the respondent Smt. Ishroo Devi filed a suit for recovery of the schedule property in the plaint. It was alleged in the plaint that the appellants (A-1, son; A-2, Wife; and A-3, grand-daughter of Purohit Mani Ram) after the death of Purohit Mani Ram wrongfully disposed her after getting the name of appellant No. 1 mutated in the records and that the three items of the schedule property were the separate properties of the testa- tor and that he was entitled to dispose them under the Will. The appellants averred in their written statement that the properties belonged to the joint family of which the first appellant and his father Purohit Mani Ram were members and as the properties were joint family properties, they cannot he disposed of by Will. It was further alleged that the Will was a forged one and is fictitious. The trial court, accepting the evidence of PW1, an advocate, who advised in the preparation of the Will and also an attest- ing witness, PW2 the scribe and PW3 who deposed the fact that the properties were self-acquired ones of late Purohit Mani Ram, decreed the suit as regards item No. 1 (a) of the plaint schedule but dismissed the claim as regards items l(b) and 2 holding that they were ancestral ones. On ap- peal, the High Court accepted the findings of the trial court and confirmed the decree as regards item l(a) of the property but modified the order as regards item l(b) and 2 by allowing the claim of the respondent to the extent of 1/2 share since under s. 27 of the Jammu & Kashmir Hindu Succession Act Mani Ram was entitled to dispose of his interest in the joint family property by Will. In appeal by certificate to this Court, the appellant contended: (i) The Will was not a valid one for the reasons, namely, (a) it was ante dated in order to escape the prohi- bition against alienation introduced by Ordinance which came into force in July 1959; (b) the signature on the Will was forged; (c) the Will is a most unnatural one as it had not provided for the son or the wife or any near relative but has provided to a distant relative and (d) in a suit for partition filed by the son against Mani Ram, the latter gave an undertaking in the court not to alienate his properties which would improbalise the execution of the Will; (ii) The hereditary profession of Mani Ram being that of a priest whatever he earned while practising that profession and all his acquisitions should be held to be joint family property. (iii) In view of the Mitakshara law applicable to the estate when partition of the joint family property takes place during the father’s life time at the instance of the son, the mother also has a share equal to him. The Court confirmed the decree in respect of item 1 (a) of the property in favour of the respondent, modified the decretal order of the High Court in respect of items 1(b) and 2 of the schedule property as 1/3rd in favour of appel- lant No. 1, 1/3rd in favour of appellant No. 2 and 1/3rd in favour of respondent as entitled by the Will. The Court, HELD: (1) The plea that the Will was executed after July 1959 when there was a prohibition against the alienation and that it was pre-dated and not executed 401 on the day on which it purports to be is without any sub- stance and against the evidence on record. [403 H, 404 A] (2) The contention that the Will is an unnatural one is also without substance. The non-disclosure of the execu- tion of the Will is understandable because Mani Ram did not want anyone, particularly his son, to know about his pos- sessing of the property by Will. [404 B, D] (3) The findings of the two lower courts that the Will is a genuine one and was executed by Mani Ram by his own free will cannot be assailed. In fact, there was no chal- lenge to the gist of the Will noted by PW2, the scribe, in one of his regularly kept record; there was no denial by the first appellant, the son of Mani Ram that the signature found in the Will was not that of his father and there is no reason why the cogent evidence of PW 1, a respectable advocate who spoke of his advising in the preparation of the Will having seen the executant sign the Will in his presence be not accepted. [405 A-C] (4) The income from the practice of a hereditary profes- sion will not be a joint family property. Item 1 (a) of the Property is the self-acquisition of Mani Ram and the decree of the appellate court so far as item No. 1 (a) is concerned must be confirmed. [406 A, D] Hanso Pathak v. Harmandil Pathak and Anr., AIR 1934 Allahabad 851, approved. Chalabhai Gaurishankar v. Hargowan Ramji & Ors. I.L.R. 36 Born. 94, over-ruled. (5) Under the Mitakshara law excepting Madras, in the other states referred to in the decisions cited when there is a partition between the son and his father the mother is entitled to a share equal to that of the son. In the in- stant case the case of the first appellant was that the joint family consisted of himself and his father alone, though in the earlier partition suit filed by him he claimed 1/3rd share conceding that his father and mother are entitled to the other 2/3rd share. As no decision in re- spect of the interest of the male Hindu in Jammu & Kashmir was cited the question is remitted to the High Court for decision as to what is the extent of the interest as regards items I(b) & 2 of the plaint Schedule properties. [406 E-F, 407 B-E] Dular Koeri v. Dwarkanath Misser ILR 32 Cal. 234; Sumrun Thakoor v. Chunder Mun Misser & Ors., ILR 8 Cal. 17; Hos- banna Devanna Naik v. Devanna Sannappa Naik and Ors. ILR 48 Bom. 468 and Pratap Singh v. Dalip Singh ILR 52 All. 596, approved. (6) In view of s. 27 of the Jammu & Kashmir Hindu Succession Act, 1956 which provides that any Hindu male may dispose of by Will any property which capable of being disposed of by him in law and also explanation to that section which makes it clear that the interest of a male Hindu in a Mitakahara coparcenary property be deemed to be property capable of being disposed of by him within the meaning of the sub- section, in the instant case Mani Ram can dispose of his share under a Will. Admittedly the respondent, will be entitled to 1/3rd share in respect of item l(b) and 2 of the plaint schedule in addition to the decree in her favour in respect of item 1 (a). [406 D-E, 407 E-F] [The Court remitted the case back for the determination of the interest which Mani Ram had in the joint family property at the time of his death which he could dispose of by his Will and grant a decree accordingly.]

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PETITIONER:
LAKSHMI CHAND KHAJURIA & ORS.

 Vs.

RESPONDENT:
SMT. ISHROO DEVI

DATE OF JUDGMENT31/03/1977

BENCH:
KAILASAM, P.S.
BENCH:
KAILASAM, P.S.
GUPTA, A.C.

CITATION:
 1977 AIR 1694 1977 SCR (3) 400
 1977 SCC (2) 501

ACT:
 Testamentary Will disposing of the ancestral property to
 a far relation, whether valid under s. 27 of the Jammu &
 Kashmir Hindu Succession Act, 1956--Scope of s. 27 and
 explanation thereto--Whether income of a hereditary priest,
 a hereditary Property--Mitakshara law as applicable to
 Jammu & Kashmir--Though a wife cannot demand a partition
 she is entitled to receive a share equal to that of a son
 and to hold and enjoy that share separately even from her
 husband.

HEADNOTE:
 On the strength of a Will dated 25th May 1959, executed
 in her favour by one Purohit Mani Ram, the respondent Smt.
 Ishroo Devi filed a suit for recovery of the schedule
 property in the plaint. It was alleged in the plaint that
 the appellants (A-1, son; A-2, Wife; and A-3, grand-daughter
 of Purohit Mani Ram) after the death of Purohit Mani Ram
 wrongfully disposed her after getting the name of appellant
 No. 1 mutated in the records and that the three items of the
 schedule property were the separate properties of the testa-
 tor and that he was entitled to dispose them under the Will.
 The appellants averred in their written statement that the
 properties belonged to the joint family of which the
 first appellant and his father Purohit Mani Ram were members
 and as the properties were joint family properties, they
 cannot he disposed of by Will. It was further alleged that
 the Will was a forged one and is fictitious. The trial
 court, accepting the evidence of PW1, an advocate, who
 advised in the preparation of the Will and also an attest-
 ing witness, PW2 the scribe and PW3 who deposed the fact
 that the properties were self-acquired ones of late Purohit
 Mani Ram, decreed the suit as regards item No. 1 (a) of the
 plaint schedule but dismissed the claim as regards items
 l(b) and 2 holding that they were ancestral ones. On ap-
 peal, the High Court accepted the findings of the trial
 court and confirmed the decree as regards item l(a) of the
 property but modified the order as regards item l(b) and
 2 by allowing the claim of the respondent to the extent of
 1/2 share since under s. 27 of the Jammu & Kashmir Hindu
 Succession Act Mani Ram was entitled to dispose of his
 interest in the joint family property by Will.
 In appeal by certificate to this Court, the appellant
 contended: (i) The Will was not a valid one for the reasons,
 namely, (a) it was ante dated in order to escape the prohi-
 bition against alienation introduced by Ordinance which came
 into force in July 1959; (b) the signature on the Will was
 forged; (c) the Will is a most unnatural one as it had not
 provided for the son or the wife or any near relative but
 has provided to a distant relative and (d) in a suit for
 partition filed by the son against Mani Ram, the latter gave
 an undertaking in the court not to alienate his properties
 which would improbalise the execution of the Will; (ii)
 The hereditary profession of Mani Ram being that of a
 priest whatever he earned while practising that profession
 and all his acquisitions should be held to be joint family
 property. (iii) In view of the Mitakshara law applicable to
 the estate when partition of the joint family property takes
 place during the father's life time at the instance of the
 son, the mother also has a share equal to him.
 The Court confirmed the decree in respect of item 1 (a)
 of the property in favour of the respondent, modified the
 decretal order of the High Court in respect of items 1(b)
 and 2 of the schedule property as 1/3rd in favour of appel-
 lant No. 1, 1/3rd in favour of appellant No. 2 and 1/3rd in
 favour of respondent as entitled by the Will. The Court,
 HELD: (1) The plea that the Will was executed after July
 1959 when there was a prohibition against the alienation and
 that it was pre-dated and not executed
 401
 on the day on which it purports to be is without any sub-
 stance and against the evidence on record. [403 H, 404 A]
 (2) The contention that the Will is an unnatural one is
 also without substance. The non-disclosure of the execu-
 tion of the Will is understandable because Mani Ram did not
 want anyone, particularly his son, to know about his pos-
 sessing of the property by Will. [404 B, D]
 (3) The findings of the two lower courts that the Will
 is a genuine one and was executed by Mani Ram by his own
 free will cannot be assailed. In fact, there was no chal-
 lenge to the gist of the Will noted by PW2, the scribe, in
 one of his regularly kept record; there was no denial by the
 first appellant, the son of Mani Ram that the signature
 found in the Will was not that of his father and there is
 no reason why the cogent evidence of PW 1, a respectable
 advocate who spoke of his advising in the preparation of the
 Will having seen the executant sign the Will in his presence
 be not accepted. [405 A-C]
 (4) The income from the practice of a hereditary profes-
 sion will not be a joint family property. Item 1 (a) of the
 Property is the self-acquisition of Mani Ram and the decree
 of the appellate court so far as item No. 1 (a) is concerned
 must be confirmed. [406 A, D]
 Hanso Pathak v. Harmandil Pathak and Anr., AIR 1934
 Allahabad 851, approved.
 Chalabhai Gaurishankar v. Hargowan Ramji & Ors. I.L.R.
 36 Born. 94, over-ruled.
 (5) Under the Mitakshara law excepting Madras, in the
 other states referred to in the decisions cited when there
 is a partition between the son and his father the mother is
 entitled to a share equal to that of the son. In the in-
 stant case the case of the first appellant was that the
 joint family consisted of himself and his father alone,
 though in the earlier partition suit filed by him he
 claimed 1/3rd share conceding that his father and mother are
 entitled to the other 2/3rd share. As no decision in re-
 spect of the interest of the male Hindu in Jammu & Kashmir
 was cited the question is remitted to the High Court for
 decision as to what is the extent of the interest as regards
 items I(b) & 2 of the plaint Schedule properties. [406
 E-F, 407 B-E]
 Dular Koeri v. Dwarkanath Misser ILR 32 Cal. 234; Sumrun
 Thakoor v. Chunder Mun Misser & Ors., ILR 8 Cal. 17; Hos-
 banna Devanna Naik v. Devanna Sannappa Naik and Ors. ILR
 48 Bom. 468 and Pratap Singh v. Dalip Singh ILR 52 All. 596,
 approved.
 (6) In view of s. 27 of the Jammu & Kashmir Hindu Succession
 Act, 1956 which provides that any Hindu male may dispose of
 by Will any property which capable of being disposed of by
 him in law and also explanation to that section which makes
 it clear that the interest of a male Hindu in a Mitakahara
 coparcenary property be deemed to be property capable of
 being disposed of by him within the meaning of the sub-
 section, in the instant case Mani Ram can dispose of his
 share under a Will. Admittedly the respondent, will be
 entitled to 1/3rd share in respect of item l(b) and 2 of the
 plaint schedule in addition to the decree in her favour in
 respect of item 1 (a). [406 D-E, 407 E-F]
 [The Court remitted the case back for the determination
 of the interest which Mani Ram had in the joint family
 property at the time of his death which he could dispose
 of by his Will and grant a decree accordingly.]

JUDGMENT:
 CIVIL APPELLATE JURISDICTION: C.A. No. 2330 of 1968
 (From the Judgment and Order dated the 12th March, 1968
 of the Jammu & Kashmir High Court in Civil First Appeal No.
 9 of 1966.)
 G.B. Pai, S.K. Bagga and Mrs. S. Bagga; for the appel-
 lants.
 402
 O. P. Malhotra, K.J. John and Shri Narain for the respond-
 ent.
 The Judgment of the Court was delivered by
 KAILASAM, J.---This appeal is preferred by the defendant
 in the suit on a certificate of fitness granted by the High
 Court of Jammu & Kashmir under Article 133 of the Constitu-
 tion.
 The respondent, Ishroo Devi, filed a suit for a decree
 for possession of all the three items of property mentioned
 in the plaint and for future mesne profits. It was al-
 leged that the three items of property mentioned in the'-
 plaint were the self-acquired properties of one Purohit
 Mani Ram. He executed a will on 25th May, 1959, out of
 his own free will in favour of the respondent. The origi-
 nal will was attached to the plaint. Purohit Mani Ram
 died on 24th March, 1960, at Jammu and the respondent
 claimed to be the sole owner of the properties.
 The first appellant is the son, the second appellant is
 the wife and the third appellant is the grand-daughter of
 Purohit Mani Ram. In the plaint it is alleged that the
 first appellant after the death of Purohit Mani Ram got
 rent deed executed in his favour and also recorded mutations
 in his name and dispossessed the respondent. The respond-
 ent also claimed that the three items of property were the
 separate properties of Purohit Mani Ram and that he was
 entitled to dispose of them under a will. In the written
 statement the appellants averred that the properties be-
 longed to the joint family of which the first appellant and
 his father, Purohit Mani Ram, were members and as the
 properties were joint family properties, they cannot be
 disposed of by will. It was further alleged that the will
 was a forged one and is fictitious.
 The respondent examined Janak Lal Sehgal, an advocate
 of the Supreme Court, and the scribe of the will one Bodh
 Raj. P.W. 1, the advocate, stated that Mani Ram executed
 the will on 25th May, 1959, in favour of the respondent.
 He saw Mani Ram affix his signature on the will the words
 (in vernacular) under which Janak Lal had signed as wit-
 ness, were under the words (in vernacular) where Purohit
 Mani Ram had signed. Janak Lal had given the date with his
 own hand where he had signed as witness. The witness also
 testified that the mental condition of Purohit Mani Ram was
 good and he executed the will of his own free will and no
 pressure or fraud was played on him. P.W. 2 Bodh Raj, is
 the scribe of the will. He stated that he wrote the will at
 the instance of Mani Ram and after reading the. will and
 explaining it to the testator, the testator affixed his
 signature and admitted it to be correct. According to the
 witness the will was executed on 25th May, 1959, and on the
 same date the signature of the testator and those of the
 witnesses were affixed. At the time of the examination the
 witness stated that the physical and the mental condition of
 the testator was good and he read out the will at the
 house of Janak Lal Sehgal and obtained the signatures of
 Mani Ram and that of P.W. 1, the advocate. P.W. 3, Lodra
 Mani, stated that Mani Ram was the A.D.C. of Maharaja Pratap
 Singh and was in service for Maharaja's Puja, and that the
 Maharaja was giving
 403
 lot of money to Purohit Mani Ram as present. The witness
 also stated that item 1 of the properties was constructed by
 Mani Ram with his own income.
 On behalf of the appellants a handwriting expert, Philip
 Hardless, and three witnesses were examined in addition to
 the first appellant.
 The trial court accepted the evidence of P.W. 1, the
 advocate, and P.W. 2, the scribe and held that the will was
 proved. Holding that items 1 (b) and 2 of the plaint
 schedule properties were ancestral properties found that
 Mani Ram had no authority to dispose of these two items of
 properties by will. Therefore while decreeing the suit as
 regards item No. (1)(a) of the plaint schedule properties
 dismissed the claim as regards items 1 (b).and 2.
 On appeal by the appellants a Bench of the Jammu &
 Kashmir High Court agreeing with the finding of the trial
 court and accepting the testimony of P.W. 1, the advocate,
 and P.W. 2, the scribe of the will, found it to be genuine
 and executed by Mani Ram. The appellate court also con-
 firmed the finding of the trial court that the item l(a) of
 the property is self-acquired property of Mani Ram while
 items l(b) and 2 are the ancestral properties. While
 confirming the decree of the trial court as regards item
 l(a) it allowed the respondent's claim regarding items 1
 (b) and 2 to the extent of one.half share holding that under
 section 27 of the Jammu & Kashmir Hindu Succession Act,
 Mani Ram was entitled to dispose of his interest in the
 joint family property by will. Aggrieved by the decision
 of the Bench of the Jammu & Kashmir High Court the appel-
 lants have preferred this appeal.
 Though the Concurrent finding of both the courts below
 is that the will was a valid one and was executed by Mani
 Ram of his own free will and when possessed of all his
 faculties Mr. Pai, the Counsel for the appellants, strenous-
 ly contended that the finding should not be accepted. He
 submitted that a look at the signature of Mani Ram in the
 will and his signatures in admitted documents would prove
 that the signature in the will is not that of Mani Ram. He
 next contended that the will was antedated in order to
 escape the prohibition against alienation introduced by an
 Ordinance which came into force in July, 1959, Thirdly, he
 submitted that the will is a most unnatural one as it had
 not provided for the son, or the wife' or near relatives but
 had given the entire property to a distant relation.
 Fourthly, he submitted that in a suit which was filed by the
 son for partition against Mani Ram, the latter gave an
 undertaking not to alienate his properties and taking into
 account the proceedings it is most unlikely that he would
 have executed the will at time which it purports to be as he
 would have mentioned about his execution of the will in the
 proceedings. We have examined all these points very care-
 fully and we find that there is no substance in any one of
 them.
 The plea that the will was executed after July, 1959,
 when there was a prohibition against the alienation and it
 was pre-dated is without any substance. The will is dated
 25th May, 1959, and a contemporaneous record of the sub-
 stance of the will is made by P.W. 2
 404
 in one of his regularly kept books. We see no need for
 predating of the will and the basis of the argument that the
 will was not executed on the day on which it purports to be
 is without substance.
 Regarding the next contention that the will is an unnat-
 ural one it has to be seen that the son had filed a suit for
 partition and in the written statement the father had gone
 so far as to disown his paternity. It is common ground that
 the relationship between Mani Ram and his son was greatly
 strained and it is not surprising that he has disowned him,
 in unmistakable terms in the will. The submission that
 the will would not have been executed in mid 1959 is based
 on the plea that he had made a statement in December, 1959,
 that he had not alienated any property. The son in the
 suit prayed for an order against Mani Ram restraining him
 from alienating the joint family properties except with the
 permission of the court. A consent order was passed di-
 recting Mani Ram not to alienate joint family properties.
 There was no need for Mani Ram to mention about the will
 for it is not an alienation and in any event the will ac-
 cording to Mani Ram did not relate to joint family proper-
 ties. The nondisclosure of the execution of the will is
 understandable because Mani Ram did not want anyone particu-
 larly his son to know about his dispossessing of the proper-
 ty by will. This ground also is without substance.
 The main ground of attack was that on the face of it, it
 is apparent that the signature is not that of Mani Ram.
 The appellate court has found that Mani Ram was an illiter-
 ate person and that he had no standard signature. His
 signature is not well formed, but his signature in the
 Vakalatnama and in the will bear striking, resemblance as
 found by the Bench of the High Court. Though there are
 certain dissimilarities between the signature in the will
 and in those of admitted documents we are unable to say that
 the signature in the will is not that of Mani Ram. In this
 connection we have examined the evidence of the handwriting
 expert who gave evidence on behalf of the appellants. We
 feel that his qualifications are not such as to accept him
 as a handwriting expert. He has hardly done any work as an
 expert after 1950 and we find in his deposition that he
 has exceeded the limits as an expert and supported the
 appellants in matters which were not within his province.
 We have no hesitation in agreeing with the High Court and
 rejecting his testimony. A comment was made on the fact
 that the date and endorsement in the will is in a different
 ink and probably was not written at the same time. In this
 connection a discrepancy in the evidence of the scribe, P.W.
 2, as to where actually the date was noted whether it was in
 his house or that of the lawyer's was made much of. We do
 not think that this discrepancy would affect the. truth of
 the matter. It is seen that P.W. 2 in his record entered
 summary of the will on the same day. It is significant that
 in the cross examination no question was asked challenging
 the genuineness. The entry with regard to the will was
 made by P.W. 2 in the Register which is a public register
 and on examination we find there is nothing suspicious about
 it. It
 405
 may also be noted that the first appellant, the son of Mani
 Ram, has not stated that the signature found in the will is
 not that of his father. Apart from all these circumstances
 we find the evidence of P.W. 1 a respectable advocate, who
 speaks of his advising in the preparation of the will, his
 seeing the executant sign the will in his presence can be
 safely accepted. Excepting that a statement which he made
 as a witness was rebutted by a District Judge nothing else
 has been suggested against him. We have no hesitation in
 accepting the evidence of these two witnesses, as the two
 lower courts have done. There is no ground at all for
 rejecting the evidence of P.W. 2, the scribe, whose evidence
 has been accepted by both the courts. The scribe had
 immediately noted the gist of the will in one of his regu-
 larly kept records which has not been challenged. We have,
 therefore, no hesitation in accepting the finding of the two
 lower courts that the will is a genuine one. and was execut-
 ed by Mani Ram of his own free will.
 Mr. Pai, counsel for the appellants, submitted that the
 High Court was in error in holding that item 1 (a) of the
 properties is the self acquired property of Mani Ram.
 According to the learned counsel the hereditary profession
 of Mani Ram was that of a priest and whatever he earned
 while practising that profession and all his acquisisions
 should be held to be joint family property. The evidence
 is that Main Ram was not only a priest but worked in three
 posts. He was a priest and at the same time was in the
 private office of the Maharaja and was also an A.D.C. of the
 Maharaja and the Maharaja used to give presents to him. It
 is in evidence that the Maharaja had given. the land and
 himself constructed the Kothi before giving it to Mani
 Ram. In support of the contention that the income
 derived from practice of a hereditary profession should be
 construed as ancestral property, the learned counsel re-
 ferred us to two decisions in Ghelabhai Gavrishankar v.
 Hargowan Ramit & Others(1), and Hanso Pathak v. Harmandil
 Pathak and Another.(2). Neither of the cases support the
 contention of the learned counsel. In the first case the
 question that arose for consideration was about the nature
 of the office of a hereditary priest. It was held that the
 hereditary right of the priest is immovable property.
 Chandavarkar J. pointed out that hereditary priesthood
 vested in particular families is regarded as vritti or
 immoveable property but we do not find any support for the
 contention that the income of the hereditary priest will
 also be hereditary property. In fact in Hanso Pathak v.
 Harmandil Pathak and Anr. (supra) it has been made clear
 that in the United Provinces the income received as amounts
 paid by Yajamans at their discretion either by way of chari-
 ty or by way of remuneration for personal services rendered
 by the priest, cannot be claimed as of right, and cannot
 amount to a family property. Chief Justice Sulaiman ex-
 pressed his view that the income received as amounts paid by
 people at their discretion either by way of charity or by
 way of remuneration for personal services rendered cannot be
 claimed as of right amount to family property. Mukerji,
 J.in a concurring judgment after distinguishing
 1. I.L.R. 36 Bom. 94.
 2. A.I.R. 1934. All. 351.
 406
 Ghelabhai Gavrishankar v. Hargowan RamIi & Others (supra)
 held that the income is "Vidyadhana" which is the same thing
 as "gains of science" or what has been acquired by exercise
 of learning cannot be divided by partition. We agree with
 the view thus expressed by the Allahabad High Court and find
 that the income from the practice of a hereditary profession
 will not be joint family property.
 Mani Ram was getting Rs. 100 as A.D.C. and was in addi-
 tion drawing a salary of Rs. 140 a month as an employee in
 the private Department of the Maharaja. Thus he had ample
 means to acquire item 1 (a) of the property from his self-
 acquisition. On the other hand there is hardly any evi-
 dence to prove that he had any ancestral nucleus. It is
 stated that the family had some jewels and cash which were
 kept in the safe of the Maharaja and there is nothing to
 indicate that any thing out of the cash or jewellery was
 used in purchasing item 1 (a) of the property. I was
 also contended that the property that belonged to Mani Ram
 was only the house and not the land attached to the house.
 We have no hesitation in rejecting this desperate plea. The
 result is we confirm the findings of the courts below that
 item 1 (a) of the property is the self-acquisition and the
 decree of the appellate court so far as item 1 (a) is
 concerned is confirmed.
 Regarding items 1 (b) and 2 the appellate court has
 found that they are joint family properties. It is admit-
 ted by both the parties that under section 27 of the Jammu &
 Kashmir Hindu Succession Act, 1956, the interest of the
 coparacener in a joint Hindu family property can be disposed
 of by will. Section 27 provides that any Hindu may
 dispose of by will any property which is capable of being
 disposed by him in law. The EXplanation to the section
 makes it clear that the interest of a male Hindu in a Mitak-
 shara coparacenary property be deemed to be property capa-
 ble of being disposed of by him within the meaning of the
 sub-section. As the joint family consisted of Mani Ram and
 his son, the first appellant, the appellate court gave a
 decree in favour of the respondent so far as one-half share
 of items 1 (b) and 2 of the properties are concerned. The
 counsel for the appellant submitted that the appellate court
 was in error in determining the interest of the testator as
 one-half share in the two items of joint family property.
 He submitted that according to Mitakshara law except in
 Madras when there is a partition between the son and his
 father, mother is entitled to a share equal to that of the
 son. In support of his contention the learned counsel
 referred to Mulla's Hindu Law, 14th Ed., p.403, paragraph
 315, where it is stated that while the wife cannot demand a
 partition, but if a partition does take place between her
 husband and his sons, she is entitled to receive a share
 equal to that of a son and to hold and enjoy that share
 separately even from her husband. To the same effect is the
 passage in Mayne's Hindu Law, 11th Ed., p. 534, paragraph
 434, where it is stated "According to the Mitakshara law,
 the mother or the. grandmother is entitled to a share when
 sons or grandsons divide the family estate between them-
 selves, but she cannot be recognised as the owner of such
 share until the division is actually made, as she has no
 pre-existing right in the estate except a right of mainte-
 nance." Reference
 407
 was also made to the decisions reported in Dular Koeri v.
 Dwarkanath Misser(1), where it was held that under the
 Mitakshara law when partition of joint family property
 takes place during the father's lifetime at the,instance of
 the son, the mother of the son is entitled to a share equal
 to that of her husband and her son and she is entitled o
 have the share separately allotted and to enjoy that share
 when so allotted. In Sumrun Thakoor v. Chunder Mun Misser
 & Others ,(2) it was held that under the Mitakshara law
 where a paration takes place between a father and a son, the
 wife of the father is entitled to a share. In Hosbanna
 Devanna Naik v. Devenna Sannappa Naik and Others(3), it was
 held that a step-mother is entitled to a share on parti-
 tion between the father and his sons. In Partap Singh v.
 Dalip Singh, (4) in a partition between a Hindu father and
 his son it was held that the wife of the .father has a right
 to a share equal to that of the father or the sons. In
 Madras, though Mitakshara law is applicable it has been
 held that on a partition between the sons and the father,
 the mother is not entitled to any share. (Mulla's Hindu
 Law, 14th Ed., p.403--"Madras State.--In Southern India the
 practice of allotting shares upon partition to females has
 long since become obsolete."). So far as Jammu & Kashmir is
 concerned there is no decisions regarding the interest of a
 male Hindu in property. This question as. to what is the
 interest of Mani Ram in the joint family property at the
 time of his death was not, raised before the High Court. In
 fact, the case first appellant was that the joint family
 consisted of himself and his father alone, though in the
 partition suit filed by him he claimed onethird share con-
 ceding that his father and mother are entitled to the other
 two-third share. Though the question was not raised in any
 of the courts below, we feel that being a pure question of
 law, interests of justice require that the question be
 decided. The High Court will decide the interest which Mani
 Ram had in the joint family property at the time of his
 death which he could dispose of by his will. In remitting
 this question to the High Court, we decree he suit of the
 respondent in respect of item 1 (a) one-third share in items
 1 (b) and 2 of the plaint schedule properties as to that
 extent her share is not questioned. The question as to what
 is the extent of the interest as regards items 1 (b) and 2
 of the plaint schedule properties which can be bequeathed by
 Mani Ram in favour of the respondent is remitted to the High
 Court for its determination. If the High Court finds that
 the respondent is entitled to one-third share it will decide
 accordingly. If it comes to the conclusion that Mani Ram
 was. entitled to bequeath a greater share it will grant a
 decree accordingly. There will be no order as to
 costs--appeal disposed of accordingly.
 S.R. Decree granted.
 (1) I.L.R. 32 Cal. 234.
 (2)I.L.R. 8 Cal. 17.
 (3) I.L.R. 48 Bom. 468.
 (4)I.L.R. 52 All. 596.
 408

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