The central legal point established in the judgment is the application of the Schedule of Section 8 of the Hindu Succession Act to determine the order of succession for heirs in a dispute over property.

JUDGMENT

Amit Rawal, J. - CM No. 5940-C of 2019

1. The application for impleading the legal representatives of deceased-respondent No. 1 is allowed subject to all just exceptions and the legal representatives are ordered to be brought on record for the purpose of adjudication of present appeal.

The amended memo of parties is taken on record and the registry is directed to put the same at appropriate place.

RSA No. 2312 of 1988

The present regular second appeal is directed against the judgment and decree of the lower Appellate Court whereby plaintiffs suit dismissed by the trial Court has been partly allowed and decree for possession of 1/6th share in the land in dispute has been passed.

2. The case revolves around succession of shop of one Dalipa Plaintiff is nephew from the maternal side of Dalipa i.e., sons of sister of Dalipa whereas defendants are nephews i.e. sons of Dalipa's brother. Plaintiff propounded the registered Will dated 20.04.1981 alleged to have been attested by PW 4 Rajinder Mehta, Municipal Commissioner, Sunder Nagar and J.C. Khanna, PW 5 whereas defendants also propounded registered Will dated 08.09.1977.

3. Both the parties led extensive evidence.

4. Mr. Umesh Aggarwal, learned counsel appearing on behalf of the appellant submitted that the Will dated 08.09.1977 was duly registered and attested by two witnesses DW 3 Kabal Singh and Amar Singh, DW 4 and scribed by DW 5 Ajit Singh whereas the beneficiaries were defendants. Dalipa died on 19.05.1981. The plaintiff had managed to procure the Will in their favour as from cross-examination of PW 4, it revealed that Dalipa was admitted in hospital at Sunder Nagar on 18.04.1981 and the Sub Registrar was brought to the hospital. A complaint was registered qua his abduction, resulting into registration of FIR The testimony of witnesses brought by defendants in support of Will was in compliance of requirement of Section 68 of the Indian Evidence Act and Section 63(c) of the Indian Succession Act but the lower Appellate Court discarded the Will in the manner aforementioned In the subsequent Will propounded by the plaintiff, there was no reference of beneficiary of the first Will or its revocation.

5. Per contra, Mr. P.S. Jammu, learned counsel appearing for legal representative of plaintiff submitted that the aforementioned witnesses Rajinder Mehta and J.C. Khanna complied with the provisions of law aforementioned and had been coherent and categoric with regard to attestation of the Will in the presence of each other i.e. witnesses and on direction of the testator. PW 2 also admitted that he had appeared before the Assistant Collector for the purpose of effecting the mutation. In fact, he was keeping ill health and was resident of Dharampur. Dalipa was taken to Sunder Nagar with Bhagat Singh whose relative was residing where testator's health deteriorated, resulting into admission in the hospital. The execution of Will is always a deviation from the time of succession. Non-mentioning of the previous Will is not sine qua non for rejecting the Will. There was hardly any suspicious circumstances. The accused in the FIR had already been acquitted, thus, urges this Court for dismissal of the appeal and acceptance of the cross objection by taking into consideration the Will Ex. P1.

6. I have heard learned counsel for the parties, appraised the paper book and of the view that following Substantial Question of Law arises for determination:-

"Whether as per the natural succession, children of brother of Dalipa vis--vis children of sister of Dalipa would have a right as per Schedule 1 of Section 8 of the Hindu Succession Act and judgment and decree of the trial Court and lower Appellate Court discarding the 'Will' suffer from illegality and perversity?"

7. It would be apt to reproduce Schedule of Section 8 of Hindu Succession Act, which reads as under.-

THE SCHEDULE

[Section 8]

HEIRS IN CLASS 1 AND CLASS II

CLASS 1

Son; daughter; widow; mother; son of a pre-deceased son; daughter of a predeceas