Sibghat Ullah Khan, J. - (1.) HEARD learned counsel for the parties at the admission stage. Both the appeals are directed against common decree. Accordingly, the necessity of filing certified copy of judgment of the Trial court in Second Appeal Defective No. 423 of 2010 is dispensed with and the said appeal is treated to be in order. Office shall immediately allot regular number to that.
(2.) THE three appellants and respondent No. 1 are real brotheRs. Respondent No. 2 is wife of respondent No. 1. These appeals arise out of Original suit No. 51 of 1998 filed by the appellants against the respondents and Original Suit No. 72 of 1998 filed by the respondents against the appellants. Both the suits were consolidated and decided by Additional Civil Judge (Senior Division) Court No. 2, Varanasi on 30.1.2009. Appellants suit was dismissed and respondents suit was decreed. Will dated 16.5.1997 alleged by the appellants to have been executed by their father Lallu Ram (who died on 25.7.1997) on 16.5.1997 was declared to be null and void. Against the said judgments and decrees appellants filed two appeals being Civil Appeal No. 21 of 2009 and 22 of 2009. Both the appeals were dismissed on 17.9.2010 by Additional District Judge, Court No. 12, Varanasi hence these Second Appeals. The case of the respondents was that father of appellants and respondent No. 1 Lallu Ram executed a Will on 25.10.1994 which was registered on 11.11.1994 in favour of respondent No. 1 and his wife -respondent No. 2. The case of the appellants was that Lallu Ram executed another un -registered Will on 16.5.1997 in favour of all the four sons and through the said Will earlier registered Will was cancelled.
(3.) BOTH the courts below on the basis of following grounds/circumstances held that the second alleged Will by Lallu Ram had not been proved to have been executed and suspicious circumstances surrounding the same had not been explained. 1. Lallu Ram was literate had signed the first Will however, the second Will contained his thumb impression only and even though in the said Will it was mentioned that Lallu Ram was not in a position to sign however, appellants did not adduce any evidence to prove that Lallu Ram was so weak, infirm and ill on 16.5.1997 that he could not put his signatures on the Will. 2. Thumb impression of Lallu Ram on the alleged Will dated 16.5.1997 was blurred which fact was also admitted by the finger print expert adduced by the appellants hence it was not possible to fully establish that thumb impression on the alleged Will dated 16.5.1997 was of Lallu Ram. 3. It was admitted that none of the appellants was present at the time of execution of the alleged Will dated 16.5.1997. 4. It was stated by the witnesses of the appellants that an advocate had brought the Will which was already typed on which Lallu Ram put his signatures while it could not be proved that the Will which was got typed by the Advocate was written on the direction of Lallu Ram.;