The court affirmed the validity of a Will and upheld its execution despite claims of suspicion, indicating that the exclusion of a child does not inherently nullify a Will.

Order :

SUDESH BANSAL, J.

1. This Civil First Appeal under Section 96 of CPC has been filed by defendant No.2 against the final order dated 03.11.2023 passed by the Additional District Judge No.6, Jaipur Metropolitan-I declaring 1/3^rd share of defendant No.1 (now deceased), to be of plaintiff (in addition to his own 1/3^rd share) on the basis of registered Will dated 15.11.2003 (Exhibit-22) executed by defendant No.1 and thereby amending the preliminary decree of partition dated 23.10.2001 in the manner that plaintiff shall be entitled for 2/3^rd share and defendant No.2 for 1/3^rd share in the suit properties.

2. Heard counsel for both parties at length and perused the material available on record. With consent of counsel for both parties, this first appeal, vide order dated 10.10.2025, was posted for the final hearing at the stage of admission and has been heard finally on merits.

3. Dispute in this appeal is between appellant-defendant no. 2 and respondent No.1-plaintiff in respect of 1/3^rd share of respondent No.2-defendant no.1 (now deceased) in the suit properties.

4. It will be apropos to disclose the nomenclature of parties as they were called before the trial Court. Respondent No.1 is the plaintiff. Respondent No.2 was defendant No.1 (now deceased). Appellant is defendant No.2. Respondent No.2 (now deceased) happens to be father of appellant & respondent No.1 and they are two brothers. Respondents No.3, 4 and 5 are three daughters of Respondent No.2 (now deceased) and Respondent No.6 is Bank-formal party.

5. At the outset, it is necessary to take note of the fact that, it is not in dispute that vide preliminary decree of partition dated 23.10.2001 passed in Civil Suit for partition bearing No. 57/2001 by the Additional District Judge No.6, Jaipur Metropolitan, suit properties including movable and immovable properties of late Smt. Mohan Kanwar were divided in equal share of 1/3^rd-1/3^rd among her husband and two sons (plaintiff and defendant no. 1 & 2). Since her daughters expressly relinquished their shares and did not opt/claim any share in the suit properties, hence, suit properties were divided in equal three shares amongst husband and two sons only. It is noteworthy that the preliminary decree of partition declaring 1/3^rd – 1/3^rd share of each plaintiff and defendants No.1 & 2 in the suit properties, was not assailed by any party.

6. It appears that during course of proceedings of final decree, in furtherance to the preliminary decree of partition dated 23.10.2001, defendant No.1- father of plaintiff and defendant No.2 passed away on 09.11.2012.

7. Defendant No.2 (Appellant herein) claimed that 1/3^rd share of defendant No.1 should be further equally divided between his two sons viz. Plaintiff and defendant No.2 and preliminary decree be amended accordingly, whereas plaintiff relied upon a Will dated 15.11.2003 asserted that his father-defendant No.1 has bequeathed his 1/3^rd share in plaintiff’s favour, hence, on the basis of Will, 1/3^rd share of defendant No.1 (now deceased) be declared to be given to plaintiff. On filing misc. applications in this regard, an enquiry was ordered to be conducted by the trial Court, purportedly under Order 20 Rule 18 CPC, in order to decide the further allocation of 1/3^rd share of defendant No.1 (died after preliminary decree) either exclusively to the plaintiff on the basis of registered Will of defendant No.1 or equally between plaintiff and defendant No.2, who are two sons of defendant No.1, if his Will is not proved as lawful, valid