The execution and attestation of the Will dated 25.02.1990 was proved as per Section 63 of the Indian Succession Act 1925, and the latest Will prevails over the earlier Will.

P.S. Rana, J.

Present RSA is filed against the judgment and decree passed by Presiding Officer/Additional District Judge Fast Track Court Hamirpur H.P. in Civil Appeal No.71/1998 RBT No.11 of 2004 title Sh. Puran Singh & others Vs. Sh. Yoginder Pal & others wherein learned Additional District Judge affirmed the judgment and decree passed by learned Trial Court except findings upon issue No.1.

Brief facts of the case:

2. Sh. Puran Singh & others plaintiffs filed civil suit for declaration to the effect that plaintiffs are owners in possession of suit land on the basis of Will dated 27.12.1982 executed by Smt. Janki Devi widow of Sh. Paras Ram resident of Tika Kakkriar Distt. Hamirpur H.P. who expired on 23.05.1990. It is pleaded that defendants No.1 to 3 have no right to interfere over the suit land in any manner forcibly. Consequential relief of permanent injunction restraining co-defendants No.1 to 3 from interfering over suit land in any manner sought. Further relief of possession also sought in case co-defendants No.1 to 3 succeed in dispossessing the plaintiffs from suit land during pendency of the civil suit.

3. Per contra written statement filed on behalf of codefendants No.1 to 3 pleaded therein that plaintiffs have got no locus-standi in filing the present suit. It is further pleaded that plaintiffs are estopped by their own act and conduct. It is further pleaded that Smt. Janki Devi deceased executed latest Will dated 25.02.1990 in favour of plaintiff No.1 and defendants in sound disposing state of mind. It is further pleaded that latest Will dated 25.02.1990 is binding upon plaintiffs. It is further pleaded that Smt. Janki Devi did not execute any Will on dated 27.12.1982 as alleged. It is further pleaded that plaintiffs have no cause of action to file the present suit. It is further pleaded that present suit is bad for non-joinder of necessary parties. Prayer for dismissal of suit sought.

4. Per contra written statement filed on behalf of codefendants No.4 to 6. Co-defendants No.4 to 6 admitted the case of plaintiffs and pleaded that suit filed by plaintiffs be decreed as prayed. As per pleadings of parties learned Trial Court framed following issues on 24.06.1992:

1. Whether late Smt. Janki Devi had executed valid Will dated 27.12.1982 in favour of plaintiffs if so its effect? ………….OPD

2. Whether late Smt. Janki Devi had executed a valid Will dated 25.02.1990 in favour of plaintiffs and defendants as alleged, if so its effect? ……..OPD

3. Whether plaintiffs have no locus-standi to file the suit? ……OPD

4. Whether plaintiffs are estopped from filing the suit by their own act and conduct? …….OPD

5. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? ……OPD

6. Relief.

5. Learned Trial Court decided issues No.1 & 2 in affirmative and issues No. 3, 4 & 5 in negative. Learned Trial Court dismissed the suit filed by plaintiffs. Learned Trial Court held that both Wills dated 27.12.1982 & 25.02.1990 proved to be legal and valid Wills. Learned Trial Court further held that latest Will dated 25.02.1990 would prevail. Thereafter Sh. Puran Singh and others filed civil appeal before Presiding Officer/Additional District Judge Fast Track Court Hamirpur H.P. and civil appeal was dismissed. However learned First Appellate Court set-aside findings upon issue No.1 and learned First Appellate Court held that Will dated 27.12.1982 is not proved on record. Feeling aggrieved against the judgment and decree passed by learned First Appellate Court present RSA is filed. Following substantial question of law framed on 17.07.2006 by H.P. High Court.

1. Whether appellant/plaintiff has been materially prejudiced on account of non-consideration of his application for the comparison by a Finger Print Expert of the allegedly admitted thumb impression of deceased Janki Devi appearing on Power of Attorney with the disputed thumb impression on the Will Ext. DA?

6. Court heard learned Advocate appearing on behalf of appellant and le