NARBDESHWAR Vs. RAM NARESH CHAUDHARI

JUDGEMENT

(1.) Heard Sri S. N. Tripathi for the petitioners; Sri Prem Prakash Sharma for the respondent; and perused the record.

(2.) Briefly stated the facts giving rise to this petition are as follows: Jagjeevan and Bhagwanti instituted Original Suit No.210 of 1996 against the petitioners for cancellation of sale deed dated 15.11.1991. During the pendency of the suit, Bhagwanti, who was issue less widow of Lakhan (the brother of Jagjeevan), died on 18.11.2009. Later, Jagjeevan also died on 17.12.2010. Ram Naresh Chaudhary (the respondent), by alleging that Jagjeevan had executed a registered Will dated 26.02.2010 in his favour, applied for substitution as legal representative of the deceased plaintiff. The defendants-petitioners opposed the substitution application of the respondent by claiming: (a) that the will is forged, bogus and not executed by the deceased plaintiff; (b) that the respondent was not a natural heir of the deceased plaintiffs as both plaintiffs had left no natural heir; and (c) that the defendants as purchaser of the disputed property alone could represent the estate of the deceased plaintiffs, hence the suit had abated on death of the plaintiffs.

(3.) By the order impugned, dated 05.07.2012, the trial court, without taking any evidence to prove execution of the Will, allowed the substitution application by observing that since there exist no dispute amongst the heirs of the deceased plaintiffs the respondent, having a registered Will in his favour, is entitled to pursue the suit as a legal representative of the deceased plaintiffs. Against the order of the trial court, Revision No.148 of 2012 was filed by the defendant-petitioners which was dismissed by impugned order dated 25.05.2013 passed by the court of Additional District Judge, Gorakhpur. While affirming the order of the trial court, the Revisional Court observed that the defendants were free to file an additional written statement disputing the Will where after an issue could be framed and decided with the suit.