Banshidhar S/O Shiv Narayan vs Biharilal S/O Shivnarayan
2022 Latest Caselaw 7528 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

              S.B. Civil Second Appeal No. 246/2020

Banshidhar S/o Shiv Narayan,
                                                                   ----Appellant
                                   Versus
Biharilal S/o Shivnarayan, (since died) through LRs & ors.
                                                                ----Respondents

For Appellant(s) : Mr. Abhimanyu Singh Yaduvanshi For Respondent(s) : Mr. Gaurav Gupta

HON'BLE MR. JUSTICE SUDESH BANSAL

Order

29/11/2022

1. The instant second appeal under Section 100 CPC has been

preferred by appellant-plaintiff assailing the judgment and decree

dated 22.07.2020 passed in Regular First Appeal No. 36/2013

(01/2011) (CIS No.136/2014) by the Additional District Judge

No.2, Behror, District Alwar affirming the judgment and decree

dated 30.11.2010 passed in Civil Suit No.38/2009 (105/1999) by

the Additional Civil Judge (Sr. Division) No.1, Behror, District Alwar

whereby and whereunder the plaintiff's suit for cancellation of

'Will' and permanent injunction has been dismissed.

2. It appears from the record that the issue is in respect of

challenge to the 'Will' dated 25.05.1981 (Ex.1) executed by one

Smt. Mishri Devi in favour of respondent-defendants and which

was challenged by the appellant-plaintiff. One of the witness of

this 'Will' namely Dayala has appeared from the side of plaintiff as

PW-2. The counsel for appellant submits that from the statements

of PW-2 the execution of 'Will' is not proved.

                                                                (2 of 2)                                    [CSA-246/2020]


                                   3.      Per   contra,   learned        counsel       for    respondent-defendants

submits that one person Shri Jagdish who identify the signature of

executant Smt. Mishri Devi has appeared as DW-4. The counsel

admits none of the witness of 'Will' from his side has appeared.

4. Heard learned counsel for both parties, the matter requires

admission and consideration on the following substantial question

of law:-

"Whether the findings of issue No.3 treating the 'Will' dated 25.05.1981 in question is lawful and valid, can be sustained, when one of the attesting witness of 'Will' (appeared as PW-2) declines execution of the 'Will' ?"

5. Admit.

6. Issue notice.

Since respondent-defendants have appeared through their

counsel, no need to issue notice. Service stands complete.

7. Record has already been received.

8. This Court vide order dated 11.09.2020 after hearing learned

counsel for both parties has passed the following interim stay

order:-

"Respondents are restrained from alienating the property in question".

9. The interim stay order dated 11.09.2020 is confirmed during

the pendency of second appeal.

10. Accordingly, the stay application stands disposed of.

(SUDESH BANSAL),J

TN/58

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