Narinder Kumar and another vs Pawan Kumar and others

L.N. Mittal, J.

CM No. 14335-C of 2010

For reasons mentioned in the application, delay of 13 days in re-filing the appeal is condoned.

RSA No.4811 of 2010

Plaintiffs Narinder Kumar and Ravinder Kumar both sons of Babu Ram having been non-suited by both the courts below have filed this second appeal.

Plaintiffs/appellants filed suit against respondents/defendants. Defendants No.1 and 2 are brothers of the plaintiffs whereas defendants No.3 and 4 are their sisters. The dispute relates to inheritance of their father Babu Ram. Plaintiffs claimed share in the property of Babu Ram on the basis of natural succession.

Defendant No.1 claimed that Babu Ram executed registered Will dated 04.06.1996 in his favour and consequently he is sole owner in possession of the property left by Babu Ram and mutation on the basis of said Will has also been sanctioned in his favour. Defendant No.1 alleged that he had been maintaining his father Babu Ram and had been rendering services to him and had also discharged his loan. Various other pleas were also raised.

Defendant No.2 broadly supported the claim of the plaintiffs whereas defendants No.3 and 4 supported the claim of defendant No.1.

Learned Civil Judge (Senior Division), Ambala vide judgment and decree dated 11.11.2009 dismissed the plaintiffs'' suit. First appeal preferred by plaintiffs has been dismissed by learned Additional District Judge (Fast Track Court), Ambala City vide judgment and decree dated 26.05.2010. Feeling aggrieved, plaintiffs have filed the instant second appeal.

I have heard learned counsel for the appellants and perused the case file.

Decision of the lis hinges around the alleged Will dated 04.06.1996. Defendant No.1 has led sufficient evidence to prove due execution of the said Will. Defendant No.1 has examined scribe as well as one attesting witness of the Will to prove due execution thereof. Moreover, the Will is registered one. Registration of the Will further adds to its authenticity. Defendant No.1 also rendered services to the testator and also discharged his loan. There was thus sufficient reason for Babu Ram to execute the aforesaid Will in favour of defendant No.1.

In addition to the aforesaid, Babu Ram had filed a suit against one Vinod Kumar. During pendency of that suit, Babu Ram died. Pawan Kumar defendant No.1 herein moved application for impleading himself as sole legal representative of Babu Ram in the said suit on the basis of Will dated 04.06.1996. Present plaintiffs and defendants No.3 and 4 made statement in the said suit admitting the aforesaid Will to be correct and stating that they had no objection to impleadment of Pawan Kumar only as legal representative of Babu Ram in the said suit. Accordingly Pawan Kumar was impleaded as sole legal representative of Babu Ram in the said suit. Said statement made by plaintiffs further establishes genuineness of Will dated 04.06.1996 set up by defendant No.1.

Counsel for appellants vehemently contended that plaintiffs/appellants herein by moving application withdrew the aforesaid statement made in the other suit and they along with defendants No.2 to 4 herein were also impleaded as legal representatives of Babu Ram in the said other suit. The contention does not merit acceptance. It is correct that as per order read by learned counsel for the appellants, present plaintiffs and defendants No.2 to 4 were also subsequently impleaded as legal representatives of Babu Ram in the other suit. However, nevertheless statement made by plaintiffs and defendants No.3 and 4 herein admitting the Will to be genuine was not allowed to be withdrawn by the said order. There is categorical admission by the plaintiffs in the said statement that the said Will is genuine. Plaintiffs moved application two years thereafter in the said other suit alleging fraud in the making of the aforesaid statement. However, nevertheless Court in that suit did not accept the said plea of the plaintiffs herein and simply ordered impleadment of all natural heirs of Babu Ram as his legal representatives. Plaintiffs have failed to depict that aforesaid statement by them admitting the Will to be genuine was made erroneously in any manner. Consequently said admission further fortifies due execution of the Will in question.

In addition to the aforesaid, defendants No.3 and 4 who are sisters of the remaining parties still support the version of defendant No.1 regarding the aforesaid Will executed by father of the parties.

For the reasons aforesaid, I find no merit in this second appeal. Concurrent finding recorded by the courts below to dismiss the suit of the plaintiffs is fully justified by the evidence on record. The said finding is not shown to be perverse or illegal nor it is based on misreading or missappreciation of evidence so as to call for interference in second appeal. On the contrary, the said finding is the only reasonable finding that can be arrived at on the basis of evidence adduced by the parties. No question of law, much less substantial question of law, arises for adjudication in this second appeal. Accordingly the appeal is dismissed in limine.