Dismissed

Ram Kumar (Dead) Thru. Akhilesh Kumar and Others v. Smt. Kamla Mishra

Allahabad HC16 Jan 2024/9/2024

Case brief

AI extract

What is this about?

This appeal challenges the validity of a Will and the appellate court's rejection of a request for written arguments. The bench found no error in proving the Will and in dismissing the appeal under the action plan. The Second Appeal was dismissed.

What did the court decide?

The Second Appeal is dismissed.

What the court decided

Ram Kumar (Dead) Thru. Akhilesh Kumar and… — Succession and Inheritance | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:4062

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Court No. - 4

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Case :- SECOND APPEAL No. - 9 of 2024

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Appellant :- Ram Kumar (Dead) Thru. Akhilesh Kumar And Others Respondent :- Smt. Kamla Mishra Counsel for Appellant :- Om Prakash Singh Counsel for Respondent :- Ram Asarey Verma

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Hon'ble Rajnish Kumar,J.

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Heard Sri Om Prakash Singh, learned counsel for the appellants and Sri Ram Asarey Verma, learned counsel for the respondent.

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This Second Appeal under Section 100 of Civil Procedure Code has been filed against the judgment and order dated 11.10.2023 passed in Civil Appeal No.62/2007 by the Additional District Judge, Lakhimpur Kheri together with the judgment and order dated 18.09.2007 alongwith decree dated 03.10.2007 passed in R.S. No.704 of 1999 by Civil Judge(Senior Division), Lakhimpur Kheri.

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Learned counsel for the appellants submits that in the first appeal, the appellants had sought time for filing written arguments but the same was not granted and on the same date, the judgement was delivered by the appellate court. He further submits that the predecessor-in-interest of the appellants Ram Het had executed the alleged Will deed on 21.06.1999 in favour of the respondent-Smt.Kamla Mishra, whereas he was ill on the said date and was referred to the KGMC, Lucknow for treatment, therefore he was not in good condition to execute the Will deed. He further submits that one attesting witness of the Will had expired and another witness D.W.1 was produced, who stated in his evidence that he was clerk of the Advocate and on the same day, on the request of the predecessor-in-interest of the appellants Ram Het, he had put the signature on the Will and he was not known to him prior to that but without considering it the trial court as well as the appellate court have passed the impugned orders.

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Learned counsel for the respondent/Caveator opposed the submissions of learned counsel for the appellants and submitted that after knowing the Will executed by the predecessor-ininterest of the appellants, no suit for cancellation of Will deed has been filed. He further submits that the trial court as well as the appellate court, after considering the evidence adduced before it and the pleadings on record, have passed the impugned judgment and orders in accordance with law and there is no

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illegality or error in them.

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I have considered the submissions of learned counsel for the parties and perused the records.

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Admittedly, registered Will was executed by the predecessorin-interest of the appellants Ram Het on 21.06.1999,which has been proved by one of the attesting witnesses of the Will Vishun Lal Sharma. He stated that Ram Het had come alongwith Sri Bharat Prasad,Advocate and requested to become witness in the Will. He came to know about him on the same date and he was not known to him before that. However he proved the Will and nothing could be extracted in the cross examination which could raise any doubt about the veracity of evidence of the said attesting witness. Therefore the Will was proved in accordance with law therefore merely because he was not known to him prior to that does not make any difference.

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As per the pleadings of the parties as recorded in the impugned judgment and orders, the appellants had come to know about the execution of the Will after execution of the Will deed but no suit for cancellation of the Will deed has been filed.

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So far as the plea of the learned counsel for the appellants that the request for filing written arguments before the appellate court was rejected and on the same date the judgment was pronounced is concerned, the appellate court after considering the relevant provision of the C.P.C. had passed the order dated 11.10.2023 rejecting the request after recording a finding that the oral arguments were already advanced by the parties and the appellants had right to file the written arguments prior to oral arguments and the appeal is of the year 2007, which is under the action plan.

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In view of above and considering the overall facts and circumstances of the case, there is no illegality or error in the impugned orders and no substantial question of law arises in the matter.

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The appeal is, accordingly, dismissed.

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Order Date :- 16.1.2024 Akanksha

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Digitally signed by :- AKANKSHA SRIVASTAVA High Court of Judicature at Allahabad, Lucknow Bench

Ram Kumar (Dead) Thru. Akhilesh Kumar and Others v. Smt. Kamla Mishra

Case brief

What is this about?

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What the court decided

Ram Kumar (Dead) Thru. Akhilesh Kumar and Others v. Smt. Kamla Mishra

Case brief

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