ASHUTOSH SHARMA Vs. SITA DEVI

JUDGEMENT

(1.) THIS appeal has impugned the judgment and decree dated 24.01.2004 which has endorsed the findings of the trial Judge dated 19.01.2002 whereby the suit filed by the plaintiffs (seeking a declaration to the effect that they be declared the owners/heirs of late Har Prasad Sharma in terms of his Will and the amount of Rs.92,500/- having fallen to the share of the deceased be released to them) had been dismissed.

(2.) THE plaintiffs are the descendants of Hira Lal. Hira Lal had four sons namely (i) Chhuttan Lal, (ii) Kanwal Lal, (iii) Bala Prasad and (iv) Har Prasad Sharma. Admittedly Kanwar Lal and Chhuttan Lal had predeceased Har Prasad Sharma. Har Prasad Sharma had died on 13.12.1983. As per the plaintiffs, he had left a Will dated 20.08.1973 in favour of sons of Bala Prasad who was the only surviving brother of Har Prasad Sharma at the time of his death. THE contention of the appellants/ plaintiffs is that at the time of death of Har Prasad Sharma, their father Bala Prasad was the only surviving heir of Har Prasad Sharma; he fell in Entry II of Class II of the Schedule of the class of heirs under the Hindu Succession Act, 1956 (hereinafter referred to as the ,,said Act). Attention has been drawn to the provisions of Sections 8 and 9 of the said Act. It is pointed out that when Har Prasad died, he was not having any other legal heir except his brother Bala Prasad. THE order of succession as per Section 9 postulates that the heirs in the first entry shall be preferred to those in the second entry and so on. Contention is that on the death of Har Prasad Sharma, Bala Prasad was the only surviving heir of Har Prasad Sharma and after the death of Bala Prasad the property would have fallen to the share of his sons who are the appellants/ plaintiffs. It is submitted that defendants No. 2 and 3 who are from the families of Kanwar Lal and Chhuttan Lal (other predeceased brothers of Har Prasad Sharma) had no right to object to the Will left by Har Prasad Sharma as they had fallen in the subsequent entry i.e. entry IV of the class II heirs in the Schedule. In these circumstances the judgments of the two courts below holding that it was incumbent upon the plaintiffs/ appellants to have proved the Will of Har Prasad Sharma are illegal findings and are liable to be set aside. It is pointed out that Bala Prasad who was the only successor of Har Prasad Sharma at the time of his death had filed his written statement wherein he had given a no objection to the Will of Har Prasad Sharma. THE second written statement filed on behalf of the legal heirs of deceased defendant No. 1 which was contrary to the earlier version of defendant No. 1 could not have been read. It was in fact incumbent upon the courts below to have adverted to the provisions of Order XII Rule 6 of the Code of Civil Procedure (hereinafter referred to as the ,,Code) and decreed the claim of the plaintiffs in terms of the categorical admission of defendant No. 1 who had given a no objection to the Will of Har Prasad Sharma. THE legal heirs of families of Chhuttan Lal and Kanwar Lal who were arrayed as defendants No. 2 and 3 had no right to object to the Will; their objections could not have been considered.

(3.) SUBSTANTIAL question of law No. 1 is answered accordingly.