ASHOK KUMAR Vs. SURINDER KUMAR

JUDGEMENT

(1.) The present appeal has been directed against the judgments and decrees passed by the Courts below whereby the suit filed by the plaintiff (appellant herein) claiming 1/5th share in the land in dispute left behind by his father Jagdish Rai, has been disallowed.

(2.) The appellant staked his claim to 1/5th share in the suit property on the basis of natural succession and challenged the Will dated 15.03.1995 alleged to be executed by Jagdish Rai in favour of his another son Surinder Kumar (respondent No. 1). The Courts below non-suited the appellant primarily on the ground that in the proceedings for santion of mutation in respect of suit land on the basis of Will dated 15.03.1995 propounded by Sh. Surinder Kumar, the Class I heirs including the appellant of Sh. Jagdish Rai made a statement admitting correctness and genuineness of the Will in question and on that basis, contested mutation No. 1977 was sanctioned in favour of Sh. Surinder Kumar by the Sub Divisional Officer (Civil), Ellenabad on 26.07.2001 and thereafter Sh. Jagdish Rai being the sole owner of the property alienated the suit land in favour of respondents No. 2 to 6 vide registered sale deed dated 29.08.2001.

(3.) Counsel for the appellant has submitted that Will dated 15.03.1995 propounded by Sh. Surinder Kumar, the brother of the appellant has not been proved in accordance with law and the same is surrounded by suspicious circumstances and thus liable to be discarded. It is further argued that the Will was allegedly scribed by the brother-in-law of Surinder Kumar and there are material contradictions in the statements of scribe vis-a-vis the attesting witness of the Will. It is further argued that both the courts have failed to take into consideration vital lacunae in the case of respondent No. 1 and thus, the judgments passed by the Courts below cannot be allowed to sustain.