BANGALI SINGH Vs. RAMANUJ SHARMA

JUDGEMENT

(1.) THIS second appeal is directed against the judgment of first appellate court, 2nd, Additional District Judge, Patna, in Title Appeal No. 63 of 1983 whereby the appellate court confirmed the judgment and decree passed by Sri K.M. Agarwal, Subordinate Judge, Barh, passed in Title Suit No. 27 of 1978. The defendants of that suit and the appellants of the first appeal are the appellants before this Court.

(2.) IN a nut -shell the relevant facts are that Title Suit No. 27 of 1978 was filed by one Mostt. Daro Kuer seeking cancellation of a deed of gift allegedly executed by her in favour of defendants of the suit. However, during the course of hearing of the suit the original plaintiff Daro Keur died. Then Ramanuj Sharma, the respondent of this second appeal, was substituted in her place on the basis of a deed of will allegedly executed by the original plaintiff claiming himself to be son of the sister of the deceased Daro Kuer. The suit was decreed and in the appeal also the decree of the trial court was confirmed. Then the defendants of the suit and appellant in the first appeal preferred the present Second Appeal before this Court.

(3.) IT was contended before me by the appellants ' lawyer that under Section 213 of the Indian Succession Act nobody can claim any right or interest on the basis of an unprobated will. Therefore, when the original plaintiff died, Ramanuj Sharma could not be substituted in her place on the basis of the deed of will which was not probated. Hence, the decree passed by the trial court and the appellate court in his favour were illegal and invalid.