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PETITIONER: PHOOLCHAND AND ANR.

       Vs.

RESPONDENT: GOPAL LAL

DATE OF JUDGMENT: 10/03/1967

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. BACHAWAT, R.S. RAMASWAMI, V.

CITATION:  1967 AIR 1470            1967 SCR  (3) 153  CITATOR INFO :  RF         1972 SC 414  (32)

ACT: Code  of  Civil  Procedure  (Act 5 of  1908),  O.41,  r.  1- Preliminary decree in partition suit-Death of some  parties- Redistribution  of shares-No fresh preliminary decree  drawn up-Appeal    without   copy   of    preliminary    decree-If maintainable. Practice-If  court  could  pass more  than  one  preliminary decree in a partition suit. Hindu law-Agarwala Jains--Share given to mother in partition suit-Right, whether absolute or limited. Will-Circumstances showing genuineness of.

HEADNOTE: The appellant filed a suit for partition against his father, mother,  brother (the -respondent) and the adopted son of  a predeceased  brother.  The parties were Agarwala  Jains.   A preliminary  decree was passed specifying the shares of  the parties,  but before the final decree could be  passed,  the father  died.,  and soon after, the mother also  died.   The respondent claimed the father’s share under a will  executed by  the father in his favour, and the appellant claimed  the mother’s  share  under a sale deed executed by  her  in  his favour.   The  appellant challenged the genuineness  of  the will,  and the respondent contended that as she was  only  a limited  owner,  the  mother was not entitled  to  sell  her share.   The trial Court held in favour of the appellant  on both  contentions,  and passed an order  redistributing  the shares, but did not prepare a fresh preliminary decree.  The respondent  appealed  to  the High Court but was  not  in  a position to file a copy of the decree with the appeal.  Even when  time was granted by the High Court and the  respondent moved the trial Court for framing a formal decree, the trial Court  refused  to do so.  The High Court  disposed  of  the appeal holding that (i) the appeal was maintainable  without a copy of the decree; (ii) the varying of the share,, by the trial Court, in the preliminary decree already passed by  it was  a decree in the circumstances of the present case,  and the  respondent could appeal from it; (iii) the  mother  was not entitled to sell her share and so the sale in favour  of

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the  appellant was invalid; and (iv) the will in  favour  of the respondent was genuine. In appeal to this Court. HELD:(i)  Normally a copy of the decree must  accompany  the memorandum  of appeal.  But the defect in the filing of  the appeal  in the present case was not due to any fault of  the respondent  and  it  could not be held  that  be  should  be deprived  of his right of appeal, simply because  the  trial Court did not do its duty. [157 D, H] Jagat  Dhish  Bhargava  v. Jawahar Lal  Bhargava,  [1961]  2 S.C.R. 918, referred to. (ii) So  far as partition suits are concerned, if  an  event happens  after  the preliminary decree and  before  a  final decree   is   passed,  and  a  change  in  the   shares   is necessitated,  the trial court can and should pass a  second Sup. C.1.167-11 154 preliminary decree correcting the shares; and, if there is a dispute in that behalf the order of the court deciding  that dispute  and making a variation in the shares  specified  in the preliminary decree already passed is a decree in  itself which  would be liable to appeal.  A partition suit  is  not finally disposed of till the final decree is passed and  the court has jurisdiction to decide all disputes that may arise due  to  the  death  of  some  of  the  Parties  after   the preliminary  decree  and  before the passing  of  the  final decree.  There is nothing in the Civil Procedure Code  which prohibits the passing of more than one preliminary decree in a  partition suit if circumstances justify it and if  it  is convenient  and advantageous to do so. [158 E, F, H; 159  A, D-E] Kasi v. Ramanathan Chettiar, [1947] 2 M.L.J. 523, Raja Peary Mohan v. Manohar, (1923) 27 Cal.  W.N. 989 and Parshuram  v. Hirabai, A.I.R. 1957 Bom. 59, approved.  Bharat  Indu  v. Yakub Hasan, (1913) I.L.R.  35  All.  159, Kedernath v. Pattu Lal, I.L.R.     [1954] Luck, 557 and Joti Parshad v. Ganeshi Lal, A.I.R. 1961 Punj. 120, overruled. (iii)In the absence of a custom to the contrary a Jain widow takes a limited interest in her husband’s estate similar  to the  widow’s estate.A custom., however, to the contrary  has been proved Agarwala Jains that the widow takes an  absolute estate  in the required property of her husband,  with  full powers of alienation.  But there is no such custom entitling her to an absolute estate in ancestral property. [160 D-E] In the present case, the share allotted to the mother by the preliminary  decree  was  out  of  ancestral  property,  and therefore,  the  appellant could not take advantage  of  the sale  of  that  share by the mother,  and  it  must  descend equally   to  the  three  surviving  parties   namely,   the appellant,  the  -respondent  and the  adopted  son  of  the deceased brother. [160 E-F] Tulsiram  Khirchand v. Chunnilal Panchamsao  Parwar,  A.I.R. 1938 Nag. 391, referred to. (iv) The  will was duly executed by the father in favour  of the  respondent.   It  was genuine,  and  the  testator  was competent   to   will  away  not  only   his   self-acquired properties,  but  also  the share he got out  of  the  joint family property by severance of status and specification  of shares. [162 C-F] The  will  was executed after the partition  suit  had  been filed  and after a preliminary decree, by which shares  were allotted  to  the members of the family,  had  been  passed. Though  the  testator was 70 years old at the  time  of  the execution  of  the will -and though the  respondent  took  a prominent  part in its execution, the testator lived  for  7

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years after its execution and he was mentally and physically competent  at the time of its execution.  Further, the  will was  registered.  The will was also natural,  because,,  (a) the   testator  was  disgusted  with  the  conduct  of   the appellant;  (b) he was pleased with that of the  respondent; (c)  he  did not give any share to the adopted  son  of  his deceased  son, because, the adopted son was the natural  son of  the appellant; and (d) he did not provide for  his  wife for  she  had already been allotted one-fifth share  by  the trial Court’s preliminary decree. [161 C-H; 162 A]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1313  of 1966. 155 Appeal from the judgment and decree dated April 29, 1964  of the Rajasthan High Court in D. B. Civil Regular First Appeal No. 118 of 1961. J.   P.  Goyal and B. P. Jha, for the appellants. B.   P. Maheshwari for the respondent. The Judgment of the Court was delivered by Wanchoo,  J. This is an appeal on a certificate  granted  by the  Rajasthan  High  Court  and  arises  in  the  following circumstances’  Phool  Chand appellant had filed a  suit  in 1937  for  partition  of  his  one-fifth  share  in  certain properties  mentioned  in the schedule to the  plaint.   The defendants  to  the  suit  were  Sohanlal,  father  of   the appellant, Gopal Lal, brother of the appellant, and  Rajmal, minor  adopted son of Gokalchand (deceased) who was  another brother of the appellant and Smt.  Gulab Bai, mother of  the appellant.  There were two other defendants with whom we are not concerned now.  The suit was resisted by the  defendants and  a large number of pleas were raised with which  we  are also not concerned now.  That suit was fought right upto the Mahkma  Khas (Privy Council) of the former State  of  Jaipur and a preliminary decree for partition was passed specifying the  shares  of  the  appellant  and  the  four   defendants mentioned above on August 1, 1942.  Before, however, a final decree could be passed on the report of the Commissioner  in terms  of the preliminary decree, Sohan Lal died on May  13, 1947 and soon after his widow, Smt.  Gulab Bai also died  on November  22, 1947.  Disputes seem to have arisen about  the shares allotted to these two persons.  It appears that Gopal Lal claimed that his father Sohan Lal had made a will in his favour on June 2, 1940, according to which he bequeathed all his  property  to  Gopal Lal.  Phool  Chand  challenged  the genuineness of the will.  As to the share of Smt.  Gulab Bai Phool Chand claimed that she had executed a sale deed  dated October 19, 1947 and registered on January 10, 1948 by which she  sold all her share in movable and immovable  properties which  came to her by the decree of August 1, 1942 to  Phool Chand.   Gopal Lal, however, contended that Smt.  Gulab  Bai was  not  entitled to sell the share which she  got  in  the ancestral property as she was a limited owner and  therefore her share must be held to have devolved on Gopal La],  Phool Chand  and Rajmal.  These disputes were brought  before  the court  soon  after the deaths of Sohan Lal and  Smt.   Gulab Bai, but nothing seems to have been done for many years.  It was  only on July 12, 1961 that the trial court decided  the disputes  with respect to the shares of Sohan Lal  and  Smt. Gulab Bai.  It came to the conclusion that the will had  not been  proved.   It also upheld, the sale deed in  favour  of Phool  Chand  appellant.   In consequence  the  trial  court

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redistributed the shares indicated in the preliminary 156 decree  of  August 1, 1942.  By  this  re-distribution,  the share  of Phool Chand was increased from one-fifth  to  one- half; the share of Gopal Lal was increased from one-fifth to one-fourth, and the share of Rajmal was increased from  one- fifth  to  one-fourth.   The trial  court  however  did  not prepare  another formal ’preliminary decree on the basis  of this re-distribution of shares. Thereupon  Gopal  Lal went in appeal to the High  Court  and wanted stay of proceedings relating to preparation of  final decree.  In these proceedings Phool Chand objected that  the appeal  was not maintainable as no decree had been  prepared by the trial court and no copy of the decree had been  filed along  with  the  memorandum  of  appeal.   The  High  Court thereupon  passed an order adjourning the matter  to  enable Gopal  Lal  to  move the trial court to  draw  up  a  formal decree.   Gopal  Lal thereafter moved the  trial  court  for amending  the preliminary decree.  But that application  was rejected in September 1962.  Thus the appeal of Gopal Lal in the High Court proceeded without a copy of the decree  being on the record. A  preliminary  objection was raised in the  High  Court  on behalf of Phool Chand appellant on the date of hearing  that as  no  copy  of the decree had been filed  along  with  the memorandum  of appeal, the appeal was not maintainable.   It was also objected that in any case there could be no  second preliminary  decree  and that the order of the  trial  court varying  the  shares  in the  preliminary  decree  could  be appealed  from, if at all, after the final decree  had  been prepared.   The High Court repelled both  these  contentions and   held  that  the  order  of  July  12,   1961   varying specification of shares in the preliminary decree passed  on August  1, 1942 was a decree in the facts and  circumstances of  this case and Gopal Lal could appeal from it.  The  High Court  further held that as the trial court had  refused  to frame  a  formal decree on the basis of  this  variation  of shares  it  was not possible for Gopal Lal to  file  a  copy thereof  with the memorandum of appeal, but that  would  not take away the right of Gopal Lal to appeal. The  next point raised in the High Court was that the  trial court  was  wrong in holding that under the  Jain  custom  a widow had the same right as a male co-parcener in  ancestral property coming to her share on partition.  It was therefore contended that the sale deed by Smt.  Gulab Bai in favour of Phool  Chand appellant was invalid and her  one-fifth  share descended  on  the remaining three defendants to  the  suit, namely,  Phool Chand, Gopal Lal and Rajmal.  The High  Court accepted the contention and held that Smt.  Gulab Bai  being a  limited  owner could not sell the  property.   The  third contention raised before the High Court was that the will of Sohan  Lal in favour of Gopal Lal was genuine and the  trial court’s  finding  that it was not proved was.  not  correct. The 157 High  Court accepted this contention also.  The  result  was that  the High Court redistributed the shares  and  declared that  Phool Chand was entitled to four-fifteenths  share  of the property, Gopal Lal to seven-fifteenths share and Rajmal to  four-fifteenths share.  The High Court decree being  one of  variance,  it  (,ranted certificate to  Phool  Chand  to appeal to this Court.  Learned counsel for Phool Chand appellant has attacked  the findings  of  the High Court on all the  three  points.   He first  contends that as a copy of the decree was  not  filed

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along   with  the  memorandum  of  appeal  the  appeal   was incompetent and relies in this connection on the decision of this   Court  in  Jagat  Dhish  Bhargava  v.   Jawahar   Lal Bhargava(1).   In  that  case it  was  observed  that  every memorandum of appeal has to be accompanied by a copy of  the decree  appealed from, that this requirement of O. XLI r.  1 of  the  Code  of Civil Procedure is mandatory  and  in  the absence  of  a copy of the decree the filing of  the  appeal would  be  incomplete, defective and incompetent.   That  no doubt is the correct position in law; but as was pointed out in that case, there may be circumstances where an appeal may be  competent even though a copy of the decree may not  have been  filed along with the memorandum of appeal.   One  such exceptional  case was dealt with in Jagat  Dhish  Bhargava’s case(1).   We  consider  that the present  case  is  another exceptional case where in the absence of the copy of  decree the  appeal could be maintained.  We have already  indicated that  the trial court did not frame a formal decree when  it varied  the  shares  and naturally Gopal Lal was  not  in  a position to -file a copy of the decree when he presented the memorandum of appeal to the High Court.  Even when time  was granted  by  the High Court and Gopal Lal  moved  the  trial court  for framing a formal decree, the trial court  refused to  do  so.  In those circumstances it  was  impossible  for Gopal  Lal  to  file a copy of the  formal  decree.   It  is unfortunate  that when the matter was brought to  the  know- ledge of the High Court it did not order the trial court  to frame  a  formal decree; if it had done  so,  the  appellant could have obtained a copy of the formal decree and filed it and  the defect would have been cured.  We do not  think  it was  necessary for Gopal La] to file a revision against  the order of the trial court refusing to frame a formal  decree, for Gopal Lal’s appeal was pending in the High Court and the High Court should and could have directed the trial court in that appeal to frame a decree to enable Gopal Lal to file it and  cure the defect.  In such circumstances we fail to  see what more Gopal Lal could have done in the matter of  filing a copy of the decree.  The fact that the trial court refused to frame a formal decree cannot in law deprive Gopal Lal  of his right to appeal.  The defect in the filing of the appeal in  the circumstances was not due to any fault of Gopal  Lal and it cannot be held that he should be (1) [1961] 2 S.C.R. 918. 158 deprived  of  the  right to appeal, if  he  had  it,  simply because  the court did not do its duty.  We therefore  agree with the High Court that in the circumstances the absence of the copy of decree would not deprive Gopal Lal of his  right to appeal. The next contention is that there cannot be two  preliminary decrees and therefore when the trial court varied the shares as  indicated  in the preliminary decree of August  1,  1942 there  was no fresh preliminary decree passed by  the  trial court.   It  is not disputed that in a  partition  suit  the court has jurisdiction to amend the shares suitably even  if the preliminary decree has been passed if some member of the family  to  whom an allotment was made  in  the  preliminary decree dies thereafter : (see Parshuram v. Hirabai"1’).   So the trial court was justified in amending the shares on  the deaths of Sohan Lal and Smt.  Gulab Bai.  The only  question then  is whether this amendment amounted to a fresh  decree. The Allahabad High Court in Bharat Indo v. Yakub Hassan (  2 ) the Oudh Chief Court in Kedemath v. Pattu Lal ( 3 ) ,  and the  Punjab High Court in Joti Parshad v. Ganeshi Lal ( 4  ) seem to take the view that there can be only one preliminary

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decree and one final decree thereafter.  The Madras,  Bombay and  Calcutta High Courts seem to take the view  that  there can  be more than one preliminary decree : (see Kasi  v.  V. Ramanathan  Chettiar(5) Raja Peary Mohan v. Manohar(6),  and Parshuram v. Hirabai. We are of opinion that there is nothing in the Code of Civil Procedure  which  prohibits  the passing of  more  than  one preliminary  decree  if circumstances justify the  same  and that it may be necessary to do so particularly in  partition suits when after the preliminary decree some parties die and shares  of  other parties are thereby  augmented.   We  have already said that it is not disputed that in partition suits the  court  can do so even after the preliminary  decree  is passed.  It would in our opinion be convenient to the  court and  advantageous  to the parties,  specially  in  partition suits,   to  have  disputed  rights  finally   settled   and specification  of  shares in the preliminary  decree  varied before  a final decree is prepared.  If this is done,  there is  a  clear determination of the rights of parties  to  the suit on the question in dispute and we see no difficulty  in holding that in such cases there is a decree deciding  these disputed  rights;  if so, there is no reason  why  a  second preliminary decree correcting the shares in a partition suit cannot  be  passed  by  the  court.   So  far  therefore  as partition  suits are concerned we have no doubt that  if  an event   transpires  after  the  preliminary   decree   which necessitates a change in shares, the court can and should (1)  A.I.R. 1957 Bom. 59. (3)  (1945) I.L.R. 29 Luck, 557. (5)  [1947] II Mad.  L.J. 523. (2)  (1913) I.L.R. 35 All. 159. (4)  A.I.R. 1961 Puni. 120. (6)  [1923] 27 Cal.  W.N. 989. 159 do  so; and if there is a dispute in that behalf, the  order of  the court deciding that dispute and making variation  in shares specified in the preliminary decree already passed is a  decree  in itself which would be liable  to  appeal.   We should  however  like to point out that what we  are  saying must  be  confined  to  partition  suits,  for  we  are  not concerned in the present appeal with other kinds of suits in which also preliminary and final decrees are passed.   There is  no  prohibition in the Code of Civil  Procedure  against passing  a second preliminary decree in  such  circumstances and  we  do  not  see  why  we  should  rule  out  a  second preliminary decree in such circumstances only on the  ground that the Code of Civil Procedure does not contemplate such a possibility.   In  any case if two  views  are  possible-and obviously  this is so because the High Courts have  differed on  the question-we would prefer the view taken by the  High Courts  which hold that a second preliminary decree  can  be passed,  particularly in partition suits where parties  have died  after the preliminary decree and shares  specified  in the  preliminary  decree  have to be adjusted.   We  see  no reason why in such a case if there is dispute, it should not be decided by the court which passed the preliminary decree, for it must not be forgotten that the suit is not over  till the final decree is passed and the court has jurisdiction to decide  all  disputes that may arise after  the  preliminary decree,  particularly in a partition suit due to  deaths  of some  of  the parties.  Whether there can be more  than  one final  decree  does not arise in the present appeal  and  on that  we express no opinion.  We therefore hold that in  the circumstances of this case it was open to the court to  draw up a fresh preliminary decree as two of the parties had died

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after the preliminary decree and before the final decree was passed.  Further as there was dispute between the  surviving parties  as to devolution of the shares of the  parties  who were dead and that dispute was decided by the trial court in the  present case and thereafter the preliminary decree  al- ready passed was amended, the decision amounted to a  decree and was liable to appeal.  We therefore agree with the  view taken by the High Court that in such circumstances a  second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can  be  amended and if there is dispute  between  surviving parties  in  that  behalf and that dispute  is  decided  the decision  amounts  to a decree.  We should however  like  to make  it  clear that this can only be done so  long  as  the final decree has not been passed.  We therefore reject  this contention of the appellant. This brings us to the question whether the appellant was en- titled to the share of Smt.  Gulab Bai by virtue of the sale deed  dated October 19, 1947 in his favour.  Now it must  be remembered  that we are concerned in the present  case  with only  the sale of the share allotted to Smt.  Gulab Bai  out of the ancestral property 160 by  the  preliminary decree passed on August 1,  1942.   The trial  :-court  held  that High Courts  had  recognised  the custom amongst Jain-Agarwals that the rights of Jain  widows were absolute and ,not in the nature of a limited owner.  It relied   on  Tulsiram  Khirchand  v.  Chunnilal   Panchamsao Parwar(1).  The High Court however held otherwise and we are of  opinion that the High Court was right.  It is true  that in  Tulsiram’s  case(1), the Nagpur High Court  stated  that "the  widow takes an absolute estate among Jains in  general and not merely in some particular sub-sects".  The two cases relied on in Tulsiram’s case(1) were cases of  non-ancestral ’property, namely, (i) Mt.  Sano v. Puran Singh(2) and  (ii) Trimbakdas v. Mt.  Mathabai(3).  It is not clear whether the property  in  Tulsiram’s  case(1)  was  ancestral  or   non- ancestral.  In any case we cannot read Tulsiram’s case(1) as laying  down that a Jain widow has absolute rights  even  in the  share she gets on partition out of ancestral  property. We  may in this connection refer to Mulla’s Hindu Law,  13th Edn.  p.  585,  para 616 where it is  stated  that  "in  the absence  of  custom to the contrary, a Jain  widow  takes  a limited  interest  in her husband’s estate  similar  to  the widow’s estate.  A custom however, to the contrary has  been proved  in  several ,cases that amongst Agarwala  Jains  the widow takes an absolute estate in the self-acquired property of her husband and that she has full power of alienation  in respect  of  such property.  But there is  no  custom  which entitled  her  to an absolute estate in  ancestral  property left  by her husband.  In the latter case she takes  only  a widow’s  estate".   This  appears  to us  to  be  a  correct statement  of  the  law.  We are concerned  in  the  present appeal  with the share which Smt.  Gulab Bai got out of  the ancestral  property by the preliminary decree of  August  1, 1942;  she obviously had only a limited estate or a  widow’s estate in that share and not an absolute estate.   Therefore she could not sell it in the manner in which she sold to the appellant.   The High Court therefore was right  in  holding that  the appellant could not take advantage of the sale  of the share of the widow and it must descend on the  remaining three surviving parties equally, namely, Phool Chand,  Gopal Lal and Rajmal.  The contention therefore on this head  also fails. Then  we come to the question whether the will by Sohan  Lal

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in  favour  of  Gopal  La] was  genuine.   We  have  already indicated  that the trial court held that it was not,  while the  High  Court was of opinion that it  was  genuine.   The trial  court based its finding mainly on some  inconsistency in the statements made by Laxmichand, an attesting  witness, on  two  different occasions.  It Seems that  in  this  suit Laxmichand  duly proved the will but on an earlier  occasion he had stated that he had not attested the will.  There was (1) A.I.R. 1938 Nag. 391.  (2) A.I.R. 1925 Nag..174. (3)  A.I.R. 1930 Nag. 225. 161 another  attesting  witness who also was  produced,  namely, Chhotey  Lal,  whose  evidence  did  not  suffer  from   any infirmity.   Besides  that Basanti Lal, the  scribe  of  the will,  was also produced, though he was not present  at  the time of the execution of the will.  His evidence is that  he prepared  the draft of the will on the instruction of  Sohan Lal and handed over the written document either to Gopal Lal or  to Sohan Lal.  Finally there was the statement of  Gopal Lal  to prove due execution of the will for he  was  present when it was executed though he was not an attesting witness. Thus  except for the inconsistency in the two statements  of Laxmichand the evidence of the due execution of the will was over-whelming. But it is urged that Gopal Lal in whose favour the will  was made  had taken a prominent part in its execution and  Sohan Lal  was  an  old man of about 70 years when  the  will  was executed and therefore we should require strict proof of the due execution of the will.  There are several  circumstances which  in  our opinion clearly show that the will  was  duly executed by Sohan Lal in favour of Gopal Lal. Firstly,  Phool Chand was obviously a thorn in the  side  of the  father and had dragged him into litigation.   The  will says that Phool Chand separated from the father long  before and picked up quarrels with him.  It further says that Phool Chand  had  no  regard for his duty as a son  and  had  been behaving  with the testator in a most improper and  shameful way.   It goes on to say that the testator was fed  up  with the  improper behaviour of Phool Chand.  The  testator  then says  in the will that contrary to it, Gopal Lal lived  with him, served him and was obedient to him and he was impressed with  the  services of Gopal Lal.  He therefore  wanted  his property to go to Gopal Lal and was making the will in order that Gopal Lal may not be put to any trouble after his death and  might live comfortably.  The will therefore appears  to be  a  very natural will in the  circumstances.   Sohan  Lal obviously  did  not provide for his wife for  she  had  been allotted  one-fifth  share in the -property already  by  the trial  court’s preliminary decree.  As for Rajmal minor,  it appears that he was the natural son of Phool Chand and there was  dispute  whether he had been  adopted  by  Gokalchand’s widow,  though the dispute was eventually settled in  favour of  Rajmal  minor by the court.  In these  circumstances  we would not expect Sohan Lal to make any provision for  Rajmal minor  either  who had got one-fifth share on the  basis  of adoption.   The  will  therefore appears to us  to  be  very natural  and  the  fact  that Gopal La]  took  part  in  the execution  has under the circumstances no significance.   It is true that Sohan Lal was about 70 years old when the  will was  executed.   But he lived almost seven years  after  the execution of the will and it is no one’s case that he was in any way mentally or physically incompetent to 162 make the will when he did so in 1940.  It may be added  that the will was later registered also, though the Registrar has

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not  been  examined  as a witness.   Finally  there  is  the circumstance  that the appellant knew about the will as  far back as March 1941 but he never seems to have talked to  his father Sohan Lal about it.  In these circumstances we  agree with  the High Court that the due execution of the will  has been proved. The  last  point  that  had been  urged  on  behalf  of  the appellant is that Gopal Lal was not entitled to any  movable or immovable ancestral property by virtue of the will, as  a Hindu  cannot  will away joint family property.  We  are  of opinion  that  there  is nothing in  this  contention.   The present suit had already been filed by the appellant in 1937 and  immediately  on  the  filing  of  the  suit  there  was severance  of  status among the members of the  joint  Hindu family,  even  if Phool Chand had not separated  earlier  as stated  by  Sohan Lal in the will.   Further  a  preliminary decree had also been passed by the trial court in April 1938 by which various shares were allotted to various members  of the family.  In these circumstances Sohan Lal was  perfectly competent  to  will away the share he got out of  the  joint family  property and that is what he did.  He has stated  in the  will that Gopal Lal would be the rightful owner of  his self-acquired  immovable property.  He further  stated  that Gopal  Lal would be the rightful owner of his share  in  the ancestral  property  and finally he stated  that  Gopal  Lal would  be the rightful owner of all of his  articles,  i.e., jewellery,  ornaments, clothes, utensils and other  domestic articles.   The  last clause relating  to  movable  property clearly  refers both to the share that Sohan Lal got in  the movable property by severance of status and specification of shares  in the preliminary decree and to  any  self-acquired movable  property.   There  is therefore no  force  in  this contention. The  appeal  therefore fails and is  hereby  dismissed  with costs. V. P. S.                               Appeal dismissed 163