Anand Kumar and Others vs Mahaveer

Sanjay Misra, J.—Heard Sri K.K. Tripathi learned Counsel for the Defendant Appellants and Sri K.K. Nirkhi who has put in appearance on behalf of Plaintiff Respondent.

This second appeal u/s 100 of the CPC is directed against the judgment and decree dated 7.8.2010 passed by the Additional District Judge, Court No. 2, Ram Bai Nagar in Civil Appeal No. 70 of 2009 (Mahaveer v. Anand Kumar and Ors Civil Appeal No 70 of 2009) whereby the appeal filed by the Plaintiff Respondent has been partly allowed.

Sri K.K. Tripathi has submitted that earlier the Plaintiff Respondent had filed a Suit No. 519 of 1999 for injunction against the Defendant Appellants. In that suit for injunction issue No. 1 was as to whether the Plaintiff is owner in possession of the house in suit. He refers to the aforesaid judgment and submits that the Plaintiff failed in that suit to prove by any evidence that he was owner in possession of the house in suit.

Sri Tripathi submits that the suit for cancellation of will dated 31.8.1999 filed by the Plaintiff Respondent was dismissed by the Trial Court but in appeal the first appellate court has illegally allowed the appeal in part by holding that the Defendant Appellants would get 1/4 share by virtue of the will executed by Smt. Bhagni.

Sri Tripathi has further submitted that the suit filed by the Plaintiff Respondent was for a declaration that the will dated 31.8.1999 be declared as void and ineffective. According to Sri Tripathi both the courts below have committed an error in accepting the will as genuine and bonafide.

Upon considering the submission of learned Counsel for the Defendant Appellants and perusal of the record a concurrent finding of fact has been recorded by both the courts below that the will dated 31.8.1999 is a registered and genuine document. By this will Smt. Bhagni has been bequeathed 1/2 share to the Defendant Appellant. The aforesaid will was found genuine by both the courts below but it was held that the property is ancestral in the hands of the testator and the testator inherited only 1/4 share of the property therefore she could not execute a will deed of more than her share. The first appellate court considered this aspect of the matter and set aside the finding of the Trial Court and held that the testator could only will that property of which she was owner. Since Smt. Bhagni was found to be owner of 1/4 share in the property the first appellate court has accepted the will to the extent of 1/4 share and has declared it as illegal and void with respect to more than 1/4 share of Smt. Bhagni.

In so far as the finding recorded in the earlier suit for injunction is concerned the aforesaid suit was admittedly filed by the Plaintiff for injunction and it was ultimately dismissed also for the reason of non joinder of necessary parties. In that suit the Plaintiff Respondent could not prove is title or possession over the house in question. Even if the Plaintiff could not prove his title and possession over the house in question in that suit it would not divest him of his rights to inherit the ancestral property since admittedly it was not self acquired property of either Smt. Bhagni or her husband Bhadai. They had inherited the property and it was not self acquired. Consequently, the finding of the first appellate court that the decision in the earlier injunction suit would not have any adverse effect on the title of the Plaintiff Respondent cannot be said to be illegal or incorrect in any manner whatsoever.

In view of the aforesaid circumstances when there are concurrent findings of fact affirming the will dated 31.8.1999 with respect to the shares of the parties in the property in question no substantial question of law arises for decision in this second appeal.

The second appeal has no merit. It is accordingly dismissed.

No order is passed as to costs.