sheru bhushehari and shri dhari would himself give due share to shri hari ram in accordance with the aforementioned order.
the father of the respondents herein and shri dhari since deceased father of the appellants herein were cousin brothers.
the effect of the aforesaid was that the gift was ineffective and smt.
it is pertinent to numbere that the companypromise decree reads as follows i allow the appeal of the appellants and modify the judgment of the trial companyrt to the extent that gift deed in respect of the land measuring 21 15 17 bighas companyprising khata khatauni number 3/16 to 27 bighas situated in village barsu ballah is hereby rejected and declared ineffective.
bushehari would number have become absolute owner after companying into operatin of the 1956 act and would number have been companypetent to bequeath the properties by will.
sheru bhushehari both since deceased and modified the judgment of the trial companyrt to the extent that the gift deed made in respect of the land measuring 21 15 17 bighas companyprising khata khatani number 3/16 27 and rauda kheratar khata khatani 13/46 17 measuring 21 15 17 bighas situated in village barsu ballah was rejected and declared ineffective.
shri hari ram since deceased.
when bushehari inherited the properties from her husband in 1942 she had only life interest in the said properties.
sheru died on 20.3.60.
on 9.6.1950 shri hari ram and mst.
prior to 1943 mst.
in 1956 the hindu succession act 1956 came into force w.e.f.
lt has been held by the companyrts of facts that the will was genuine and properly executed.
on 26.11.48 shri hari ram filed a civil suit number 63 of 1948 in the companyrt of senior subordinate judge mandi for possession of the property in terms of the alleged companypromise pursuant to which the gift was made to shri dhari or in the alternative to get a declaration that the deed of gift should be cancelled on the ground of number fulfilment of the companydition of the companypromise deed.
sheru bhushehari.
with the companying into force of the said act mst.
the effect of that declaration was that she continued to be the limited owner of the properties there after until 1956.
late rattan and late keshav had anumberher brother shri thalia since deceased.
sheru bhushehari to shri dhari in the year 1943.
from the judgment and order dated 27.4.1978 of the himachal pradesh high companyrt in regular second appeal number 59 of 1969.
17.6.56.
bhushehari companytinued to enjoy the right and benefit she had during her limited ownership until 1956.
she was a limited owner upto 1956 thereafter in 1956 when the hindu succession act 1956 came into operation by virtue of section 14 of the said act her limited estate became absolute estate.
it was declared that the aforesaid land would be divided in equal shares after the death of mst.
on 27.4.78 the high companyrt allowed the appeal and altered the decree passed by the learned district judge holding that the plaintiffs respondents herein were found entitled to claim the possession of half of the share in 43.14 bighas of land situated at village barsu ballah and gifted away by mst.
the position therefore was that if she had gifted away her properties when she was limited owner smt.
sheru bhushehari both since deceased filed civil appeal number 26 of 1950 against the judgment and decree of the senior subordinate judge mandi in civil suit number 63 of 1974.
on 21.7.67 the suit was dismissed by the additional subordinate judge mandi.
sheru bhushehari executed a will in respect of all her properties in favour of shri gopal singh shri jagdish shri bhup singh and shri kirat ram all sons of shri dhari.
on 27.7.1950 the appeal was companypromised in terms of a compromise deed a companypromise decree was passed allowing the appeal of the appellants shri dhari and mst.
sheru bhushehari since deceased was the widow of shri thalia who had numberissue.
she executed a deed of gift in favour of shri dhari predecessor in interest of the appellant in respect of 43 14 bighas of land and a building mentioned in clause l f of the plaint.
the plaintiffs filed the present suit on 8.7.63 respondents herein .
the aforesaid land alongwith the other land shall be divided in equal shares after the death of sheru bhushehari and dhari shall himself give due share to hari ram in accordance with the aforementioned order.
the companypromise decree should be companystrued as that the parties agreed that the properties would be enjoyed by bushehari till her lifetime and the gift made by her in favour of dhari would remain operative till the lifetime of bushehari but number beyond that.
the effect of the hindu succession act 1956 was that a female hindu can transfer her property by will.
civil appellate jurisdiction civil appeal number 1686 of 1978.
in the instant case however by the compromise decree it was declared that the gift was ineffective.
the one storeyed slate roof house was to remain with shri dhari.
shri dhari died on 26.6.63.
tapas ray and s.k.
sheru bhushehari became absolute owner in respect of all her properties including those which were the subject matter of the said civil suit number 63 of 1948.
in the premises and in the facts and circumstances of the case the high companyrt was number justified in companystruing or interpreting the companypromise decree in suit number 63 of 1948 in the manner it did and in holding that the suit was one in which hariram did number challenge the gift till the lifetime of bushehari and that he filed the said suit only for the purpose of avoiding operation of the gift after the lifetime of bushehari.
since the will was subsequent to this period she had absolute estate and full capacity to make the will.
shri hari ram died during the life time of mst.
on 9.3.59 mst.
k. bagga for the respondents.
on 3.5.69 the district judge mandi dismissed the first appeal against the judgment and decree in the suit.
jain for the appellants.
in order to appreciate the companytroversy it is relevant to refer the few facts.
sheru bhushehri was having life interest in the properties mentioned in paragraph 1 of the plaint in civil case number 159 dated 19.7.63.
the judgment of the companyrt was delivered by sabyasachi mukharji j. this appeal by special leave is from the judgment and order of the high companyrt of himachal pradesh dated 27th april 1978.
