K.S. HEGDE, J.
1. This is plaintiff's appeal by special leave. He sued the original respondent Vidya Wanti for possession of the suit properties on the basis of his title to the same The trial court dismissed the suit and the first appellate court affirmed the decision of the trial court. His appeal to the High Court was summarily dismissed.
2. The facts of the case in brief are: The two brothers by name Amin Chand and Lakhmi Chand owned considerable agricultural and non-agricultural properties. Their agricultural property was situate in Shahpur District which is now a part of Pakistan. Two brothers appear to have partitioned their non-agricultural properties some time in 1944. Thereafter Lakhmi Chand died leaving behind him, the appellant his son by his pre-deceased wife, his second wife Subhrai Bai and his daughter by the second wife Vidya Wanti. Thereafter there was a regular partition between Amin Chand, the appellant and Subhrai Bai under a registered document, dated September 3, 1945. As per that document one portion of the agricultural property was allotted to Amin Chand, another to the appellant and the 3rd to Subhrai Bai. That document provided that Subhrai Bai “will be entitled only to the used of this land. She will have on right to alienate it in any manner. She will have only life interest in it”. At about the time of entering into the deed Amin Chand was heavily indebted. To discharge his debts the appellant paid a sum of Rs 66,000. Consequently Amin Chand was allotted 90 Kanals, the Appellant 671 Kanals and Subhrai Bai 358 Kanals of land. On the creation of Pakistan in the year 1947, the entire family shifted to India leaving behind their agricultural property in Pakistan. In this country they were separately allotted agricultural lands in lieu of the lands left by them in Pakistan. Subhrai Bai bequeathed the property got by her under the deed of September 3, 1945 to her daughter Vidya Wanti as per her Will of June 18, 1957. Sometime thereafter she died and the properties in question were mutuated in the name of Vidya Wanti on December 19, 1958. At this stage it may be noted that the Hindu Succession Act (Act 30 of 1956) came into force on June 17, 1956. The suit from which this appeal has arisen was instituted on March 5, 1959.
3. The only contention advanced in this appeal is that when the parties were residing in Pakistan they were governed by the customary Hindu Law under which Subhrai Bai had no right to any portion of the agricultural properties which was the subject-matter of the partition under the deed, dated September 3, 1945. She obtained a right to the suit properties only under that deed and therefore it must be held that she got that property subject to the conditions prescribed in that deed. Hence it was urged that the present case falls within sub-section (2) of the Hindu Succession Act and consequently she had no right to bequeath the suit properties to her daughter.
4. Before examining the above contention we must dispose of the preliminary objection taken by the respondents to the maintainability of this appeal. It was contended on their behalf that this appeal had abated as the legal representatives of Vidya Wanti who died on December 27, 1967 had not been brought on record within the period of limitation. It is true that there was some confusion in the matter of bringing on record the legal representatives of the original respondent. An application to bring on record the legal representatives was filed in this Court on February 6, 1968 well within the time prescribed, but then under the relevant rule that had to be filed in the High Court. An application in the High Court was made on March 12, 1968 and the required certificate was issued on September 20, 1968. Thereafter a second application to bring on record the legal representatives of the deceased respondent was made in this Court on November 12, 1968. The application made on February 6, 1968 was not pressed and accordingly it was dismissed. The learned Chamber Judge allowed the application made on November 12, 1968 “subject to just exceptions”. On the facts set out above, it is true that the application for bringing on record the legal representatives of the original respondent was made beyond the time prescribed but in the circumstances of this case and particularly in view of the changes effected in the rules of this Court which appear to have mis-led the appellant we are of opinion that this is a fit case where we should condone the delay in making the application. We order accordingly.
5. Now coming to the merits of the case, the contention taken on behalf of the appellant and noticed earlier, had not been taken either in the trial court or in the first appellate court. It was taken for the first time in the second appeal. The High Court summarily dismissed that appeal. Evidently it was not willing to entertain the new plea taken. We are unable to agree with Mr Mehta learned Counsel for the appellant that the plea in question raises a pure question of law on the basis of the admitted facts. There is no material before us from which we can conclude that Subhrai Bai had been given any share in the non-agricultural properties owned by her husband. Admittedly she was entitled to a share in the same. It is possible that the suit properties were given to her in lieu of her share in the non-agricultural properties. Further we do not know whether the customary law prevailing at the place where the parties were residing applied to the family and whether under it Subhrai Bai was entitled to a share in the agricultural properties left behind by her husband. Under these circumstances it is not proper to entertain the new plea.
6. If Subhrai Bai was entitled to a share in her husband's properties then the suit properties must be held to have been allotted to her in accordance with law. As the law then stood she had only a life interest in the properties taken by her. Therefore the recital in the deed in question that she would have only a life interest in the properties allotted to her share is merely recording the true legal position. Hence it is not possible to conclude that the properties in question were given to her subject to the condition of her enjoying it for a life time. Therefore the trial court as well as the first appellate court were right in holding that the facts of the case do not fall within Section 14(2) of the Hindu Succession Act, 1956. Consequently Subhrai Bai must be held to have had an absolute right in the suit properties, in view of Section 14(1) of the Hindu Succession Act.
7. In the result this appeal fails and the same is dismissed but in the circumstances of the case we direct the parties to bear their own costs in this appeal.