KANCHANBAI Vs. KANHAIYALAL AND ORS.

JUDGEMENT

(1.) This second appeal filed by the appellant Kanchanbai being aggrieved by judgment and decree passed by the Additional District Judge in Civil Appeal No. 9-A/98 confirming the judgment and decree passed in Civil Suit No. 56-A/93 by Civil Judge Class-I Kukshi. This second appeal has been admitted for hearing on 08.12.1999, it came about that during the pendency of this appeal; sole respondent Kanhaiyalal, died on 02.08.2006 and the appellant moved an application for substituting the name of legal representatives and the substitution was duly made on 05.05.2008.

(2.) In the peculiar facts of circumstances of the case it so happened that the sole appellant Kanchanbai also died on 06.05.2011 and the application I.A. No. 3633/2011 under Order 22 Rule 3 CPC dated 28.06.2013 was moved by Manoramabai to be substituted as legal representative of deceased Kanchanbai. This application was moved by Manoramabai on the ground that Kanchanbai had left a Will regarding the disputed house in her favour. This application was vehemently opposed by the legal representative of respondents Kanhaiyalal. He claimed that there was no such Will and it was a forged and fraudulent Will. The reply I.A. No. 11851/2006 dated 09.09.2011 has been filed by the legal representative of respondents. Thereafter, this Court vide order dated 21.09.2011 directed the Additional District Judge, Kukshi to give a report and finding whether the Will was genuine or not after holding the inquiry as contemplated under Order 22 Rule 5 CPC report dated 04.04.2012 by the ADJ, Kukshi was received by this Court.

(3.) However Counsel for the appellant raised an objection that the discharge certificate of the Mission Hospital, Jobat has been filed but was not being considered by learned ADJ, Kukshi and certain name had also being wrongly been mentioned in the report. Therefore, this Court again on 10.03.2014 directed that the discharge certificate of Kanchanbai be also placed on record and the lower Appellate Court was directed to give proper opportunity of hearing to both sides to lead evidence. The order/report was set aside and the matter was remitted to the lower Court to give a fresh finding after appreciation of the entire evidence and taking the discharge certificate on record. The entire exercise was to be completed within a period of three months and the final order/report by ADJ, Kukshi dated 09.5.2014 has been received by this Court and matter is taken up for hearing today. It is in this factual background that the fact of second appeal may be considered in brief.