1. This is a second appeal by a plaintiff who sues for possession of a certain house which he purchased by a sale-deed of 25th June 1929, from one Kishun Lal, the eon of the sister of Hulasi. It is found by the lower appellate Court that Hulasi was the last male owner of the house. The defendants were in possession of the house under a sale-deed executed by one Mt. Rukia, dated 22nd September 1928. By implication it was held that Mt. Rukia, the wife of Karwa Chhote Lal was not the owner of the house entitled to make a sale-deed. The written statement alleged that Kishun Lal was not the son of the sister and had no right of inheritance from Hulasi. As the question had not been clearly before the parties, I remanded the following issue:
Were there any nearer reversioners of Hulasi than Kishun Lal when the succession opened out in 1921 on the death of Mt. Sliugan Devi.
2. Evidence was produced by the parties and the lower appellate Court has, come to a finding that Kishun Lal was the nearest reversioner of Hulasi and that the plaintiff is entitled to possession of the house. Objection has been taken by the respondent on the ground that the burden of proof was wrongly thrown on defendant and that the lower Court was wrong in calling on the defendant to disclose the names of nearer reversioners before the plaintiff produced his evidence. According to the view of learned counsel, the plaintiff should have produced his evidence merely to show that in the opinion of the witness there was no nearer heir than Kishun Lal and when the evidence for the plaintiff had closed the defendant would have produced evidence alleging that certain persons were near heirs. On this view it would have been impossible for the plaintiff to produce evidence to show that these persons were not nearer heirs. I consider that the procedure of the lower Court was correct. It is necessary that the pleadings should be definite in order that evidence should be produced bearing on the issues. Therefore the lower Court was correct in requiring the defendant to state whom the defendant claimed to be nearer heirs, that is Mt. Ram Devi and her alleged brother Tikoli. Having understood that that was the case for the defendant, the plaintiff then was able to produce evidence showing exactly who these people were.
3. Some further argument was made in regard to the observation of the lower Court that the succession having opened out in 1921, Mt. Ram Devi was not at that time the legal heir to Hulsai deceased. Learned Counsel argued that the Hindu Law of Inheritance (Amendment) Act, 2 of 1929, was retrospective. The Act docs not purport to be retrospective and in Section 2 the tense used is the future. I consider therefore that this Act of 1929 cannot be applied to determine the succession which opened out in 1921. On the finding of fact of the lower appellate Court I hold that the plaintiff is entitled to possession and accordingly I restore the decree of the Court of first instance with costs throughout. Permission is granted for a Letters Patent Appeal.