2 and 3 had preferred an appeal before the High Court challenging the finding recorded by the trial companyrt.
The defendant No.
Being of this view, he set aside the judgment and decree passed by the learned trial Judge and dismissed the suit with companyts.
85 of 2007 before the High Court.
It was the case of the plaintiff that the will was number executed voluntarily by his father, Shiv Singh, and it was a forged one and, therefore, numberright companyld flow in favour of the said defendants.
The plaintiff entered into a settlement with the companytesting defendants who had preferred the appeal.
2 to 4, his grandsons, was validly executed and that the finding recorded by the learned trial Judge on that score was unsustainable.
1 to 4 to the exclusion of the other rightful owners.
It was set forth that by virtue of the will, the plaintiff and the defendant Nos.
1 had died , the learned appellate Judge came to hold that the property held by Shiv Singh, the predecessor in interest of the parties to the suit, was number ancestral, but self acquired and, hence, he was companypetent to alienate the same in any manner as he liked that the will dated 6.7.1989, Exh.
It was set forth by him that the suit land was ancestral, a Joint Hindu Coparcenary property and his father Shiv Singh, being the Karta, had numberright to bequeath the same in favour of defendant Nos.
The claim of the plaintiff was strongly disputed on the ground that the will had already been worked out since the revenue records had been companyrected.
Another aspect which was addressed by the Bench was whether the finding would operate as res judicata in the subsequent proceeding.
It was set forth in the plaint that the suit land in the hands of his father, Shiv Singh, was ancestral companyarcenary and Joint Hindu Family property and he, along with his brothers, the defendant Nos.
The defendant Nos.
5 and 6, companystituted a Joint Hindu Family with the father and mother.
It was alleged that the defendant Nos.
It was opined that if the defendants 2 and 3 companyld be said to have been aggrieved by the preliminary decree, it was certainly companypetent for them to challenge that decree in appeal, but as they had number filed an appeal against the preliminary decree, the question whether they were aggrieved by that decree and companyld file an appeal therefrom was irrelevant.
1 to 4 as null and void with the companysequential prayer for restraining them from alienating the suit property in any manner.
In that case, the defendant Nos.
1 to 4 and 6 had accepted the judgment and decree that the defendant No.
As indicated earlier, to arrive at such a companyclusion, reliance was placed on the decision in Smt.
While accepting the preliminary objection, the High Court has opined that the plaintiff and the defendant Nos.
The learned trial Judge framed as many as four issues.
That apart, it was companytended that the rights of defendant No.
The defendant No.5 supported the evidence led by the plaintiff.
29 of 1995 for possession of the suit land to the extent of his share treating the will alleged to have been executed in favour of the defendant Nos.
1, his wife who had expired by the time the appeal was filed and the defendant Nos.
The plaintiff examined himself as PW 1 and tendered number of documents in evidence which were marked as Exts.
5 preferred R.S.A. No.
72 of 1959 filed by defendants 2 and 3 was number maintainable as it was directed against a mere finding recorded by the trial companyrt.
The defendant Nos.
5 cannot be regarded as an aggrieved party to assail the impugned decree invoking the jurisdiction of the High Court under Section 100 of the Code that appeal being a creature of the statute, the right to appeal inheres in one and it stands in a distinct position than that of a suit and, hence, numberappeal companyld lie against a mere finding for the simple reason that the Code does number provide for such an appeal and that the suit having been dismissed by virtue of the dislodging of the decree by the first appellate companyrt, the regular second appeal companyld number be filed by the defendant No.
P 18 to P 19A. The learned trial Judge, on appreciation of the evidence brought on record, came to hold that the suit land was a Joint Hindu Family property that defendant Nos.
1 to 4 and, hence, the will was null and void that the mutation did number create any impediment on the rights of the plaintiff and other natural heirs of the testator and that they are entitled to get joint possession of the suit land as per their shares in accordance with the law of natural succession.
5 had number been affected as a registered gift was executed on 31.3.1980 by late Shiv Singh.
The defendant No.
P 1 to P 17.
1 to 4, the judgment and decree was overturned.
A prayer was made to put him in possession of the suit land after carving out his share.
That apart, it was companytended that the will was vitiated by fraud.
1 to 4, on the basis of a forged will, forcibly took possession of the land.
5 and 6, the companyowners, have been deprived of the legal rights in the suit land.
In rebuttal, the plaintiff examined the Record Keeper of Medical College Rohtak as PW 2 and Dr. A.K. Verma as PW 3 and brought on record four forms, Exts.
Be it numbered, the learned appellate Judge took numbere of the fact that Sarabjit Singh had challenged the said will but, on account of settlement with the appellants before the appellate companyrt, had practically withdrawn from the litigation.
1 to 4 entered companytest and supported the execution of the will on the basis that it was voluntary and without any pressure or companyrcion.
6 resisted the stand of the plaintiff companytending, inter alia, that the property was self acquired and the execution of the will was absolutely voluntary.
5 filed an independent written statement admitting the claim of the plaintiff.
1 to 4 examined number of witnesses and got seven documents exhibited.
2 and 3 were aggrieved by the preliminary decree and opined that the appeal was against a mere finding and the preliminary decree, in fact, remained unchallenged for a long period.
One Sarabjit Singh filed Civil Suit No.
Dipak Misra, J. Leave granted.
Ganga Bai v. Vijay Kumar and others supra wherein a distinction was drawn between the inherent right to file a suit unless the suit is statutorily barred and the limitations in maintaining an appeal.
Thereafter, a challenge was made partly to the preliminary decree.
Thereafter, the Court opined that the High Court mixed up two distinct issues, namely, i whether the defendants 2 and 3 were companypetent to file an appeal if they were aggrieved by the preliminary decree and whether the appeal as filed by them was maintainable.
On an appeal being preferred by the three beneficiaries of the will as the original defendant No.
Hence, the present appeal by the said defendant appellant.
1 to 4 had failed to dispel the suspicious circumstances in the execution of the will in favour of defendant Nos.
