Sibghat Ullah Khan, J. - (1.) LIST revised. No one appears for the contesting Respondent. Heard learned Counsel for the Petitioner.
(2.) PETITIONERS filed a suit against contesting Respondents in the Court of Civil Judge, Kanpur Nagar. Number of the suit as mentioned in para -2 of the writ petition is not clearly legible. Either it is 1107 of 1994 or 1197 of 1994. Names of the parties are Pancham Lal and Ors. v. Dashrath Pal and Ors. The prayer in the suit was for specific performance of an alleged agreement for sale. Trial Court/ Civil Judge, Kanpur Nagar rejected the temporary injunction application through order dated 11.01.1995. Against the said order, Plaintiffs -Petitioners filed Misc. Appeal No. 72 of 1995. During pendency of appeal Defendant No. 1, Dasharath, who had executed the alleged agreement for sale, died leaving behind two sons Girish Chandra and Ram Chandra. A substitution application to bring them on record was filed by the Petitioners. Vipin Kumar son of Ram Chandra appeared and stated that his grand -father Dasharath Prasad had executed a Will on 27.07.1994 in his favour, hence only he and his uncle Girish Chandra were the legal representatives. The same thing was also said by Girish Chandra who was already a party in suit and the appeal. Appellate Court through impugned order dated 24.09.1997 accepted their version and held that Ram Chandra had been divested through the registered Will of his right in the property left behind by his father Dasharath, hence only Girish Chandra and Vipin Kumar should be substituted at the place of Dasarath. The said order has been challenged through this writ petition. In the impugned order, it is not mentioned as to whether notices had been issued and served upon Ram Chandra or not? From the perusal of the impugned order, it is quite clear that Ram Chandra had not accepted the position that through the Will he had been deprived of his father's property. In this writ petition also notices were served upon all the private Respondents including Respondent No. 5, Ram Chandra, however he did not appear. Counter affidavit has also been filed only by Girish Chandra, Respondent No. 3 on his own behalf and on behalf of Respondent No. 4 Vipin Kumar, his nephew and son of Ram Chandra.
(3.) UNLESS Ram Chandra himself admits the genuineness of the Will and the fact that he has got no right in his father's property, it is necessary or at least highly proper to substitute him as one of the heirs of his father along with his brother and son. Substitution does not mean final determination of right. The argument of learned Counsel for the Petitioner that in the absence of Ram Chandra, even if Petitioners' suit is decreed, the decree may very well be challenged by Ram Chandra by questioning the genuineness and validity of the Will is quite forceful hence accepted.;