ASHOK KUMAR Vs. KULDIP KUMAR AND ANOTHER

JUDGEMENT

(1.) Appellant-plaintiff filed a suit for separate possession by way of partition of three storied shop bearing Municipal No.BIII- 1250/1, Bazar Sheikhan, Jalandhar, by metes and bounds and as well as for rendition of accounts of the partnership firm M/s Kumar Watch Company from the date of death of Mehar Chand till date on the premise that parties to the suit are none-else, but brothers, and Pushpa Wati was the owner of the property on the basis of the registered sale deed dated 28.01.1972. It was alleged that Pushpa Wati on 16.12.1986 died intestate and therefore, parties to the suit are co-sharers of the property in dispute. Defendants No.1 and 2 propounded to have forged and fabricated the Will dated 8.1.1986 in the previous litigation between the parties and culminated in favour of the plaintiff. On account of death of Mehar Chand, father of the parties, the plaintiff stepped into shoes of deceased Mehar Chand qua his share to the extent of 1/3rd.

(2.) The aforesaid suit was contested by both the parties by raising preliminary objections, vis-a-vis, locus standi, maintainability and barred by provisions of Order 2 Rule 2 CPC. It has been stated that Pushpa Wati executed a valid Will dated 08.01.1986, whereby, she bequeathed the property in question in favour of defendants No.1 and 2 and late Mehar Chand in equal shares. Mehar Chand got 1/3rd share in the property, in question and during his life time, executed valid registered Will dated 24.04.1992 bequeathing his rights in the property, i.e., 1/3rd share in favour of Kuldip Kumar and Naresh Kumar, defendants No.1 and 2, respectively. The cash capital of Mehar Chand in the firm M/s Kumar Watch Company was bequeathed, as per Will dated 24.04.1992 in three shares and the plaintiff also received his share of cash capital.

(3.) Mr. H.K.Aurora, learned counsel appearing on behalf of the appellant-plaintiff submits that Will dated 08.01.1986, executed by Pushpa Wati has not been proved in accordance with law. Though the trial Court dismissed the suit on the ground that it was hit by the provisions of Order 2 Rule 2 CPC, but the lower Appellate Court returned the finding in favour of the plaintiff, vis-a-vis non-applicability of the aforesaid provisions, but by relying upon the provisions of Section 33 of the Indian Evidence Act, dismissed the appeal. In essence, Will of Pushpa Wati was proved into evidence in the earlier instituted suit, was tendered in the present suit, therefore, the mandatory requirement of law, i.e., provisions of Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act, have not been complied with. Therefore, illegality and perversity have been committed, much less, following substantial questions of law, would arise to be determined by this Court:-