JOGINDER SINGH Vs. SURINDER SINGH

JUDGEMENT

(1.) Delay is condoned. Application for substitution is allowed. Special leave granted. Heard learned counsel for the parties,

(2.) The estate of Smt Sham Kaur was in dispute and to claim succession two wills were projected one dated 18/01/1963 and the other dated 7/08/1970. The former was in favour of a son and the latter was in favour of a daughter. Both the Wills excluded other natural heirs. It appears that when the matter went in for contest before the trial court, the validity of both these Wills was doubted and intestate succession was ordered. The first appellate court, however, upheld the validity of the 1963 Will and kept the latter Will invalidated. Some of the left-out heirs filed Regular Second Appeal No. 1119 of 1980 in the High court of Punjab and Haryana which was dismissed in limine by an order dated 21/05/1980'. The Regular Second Appeal No. 1570 of 1980 preferred by another set of heirs was admitted and the same was dismissed on 22/05/1986 on the ground that the earlier dismissal of the appeal in limine operated as resjudicata.

(3.) As is evident, each party had an independent right to question the Wills by filing separate appeals. Dismissal of a regular second appeal preferred by some of the parties could not operate as resjudicata against the others coming in appeal, more so when they were not heard in the matter at the earlier occasion. The view taken by the High court that there was a bar of res judicata in these circumstances obviously was erroneous. We are of the view that the matter should have been decided on merits. Accordingly, we allow this appeal, set aside the impugned judgment under appeal and remit the matter back to the high court for decision on merits in accordance with law. Parties to bear their own costs.