- (1.) This order shall dispose of two appeals bearing RSA No.3361 and 3448 of 2011 as both the appeals have been filed by the same set of appellants in respect of the same property in dispute.
(2.) The brief facts of the case are that one Jhandu Ram had three sons and six daughters. He executed a registered Will on 15.9.1988 and while executed another Will dated 12.4.1989, cancelled the earlier will and by virtue of the subsequent Will, he bequeathed his entire land, in equal share, in favour of his three sons and his wife. Accordingly, Jhandu Ram had excluded all his daughters from inheriting any share in his property. After about eight months of the execution of the Will dated 12.4.1989, Jhandu Ram expired. His widow sold her share to one Deewan Singh resident of village Mandhar and later on she also died on 27.6.1999. Two suits were filed bearing Civil Suit No. 772 of 2004/2005 by Ram Nath and Duni Chand, both sons of Jhandu Ram against their brother Ram Dass and all the six sisters whereas another suit bearing No. 807 of 2006 by three daughters of Jhandu Ram against all the three brothers and other three sisters. In suit No. 772 of 2004/2005, two sons of Jhandu Ram sought declaration to the effect that they have become the owners of the property in dispute along with their brother as per Will dated 12.4.1989 and in another suit No.807 of 2006, three sisters, daughters of Jhandu Ram, claimed natural succession to the property of Jhandu Ram, who died on 21.12.1989, on the ground that he died as intestate and the Will dated 15.9.1988 and 12.4.1989 are illegal and are not binding on their rights. Both the suits were consolidated by the trial Court on 13.9.2007 and the suit No.807 of 2006 filed by Banto Devi was taken as the lead case in which the entire evidence for the purpose of another suit was also recorded. The trial Court dismissed the suit No.772 of 2004/2005 filed by Ram Nath and Dhuni Chand and decreed the suit No. 807 of 2006 filed by Banto Devi and others declaring them to be the joint owners in possession in equal share (1/9th share each of the land measuring 34 kanal 13 marlas). Against the judgment and decree of the trial Court as many as four appeals were filed namely Civil Appeal No.148 of 2010 titled as Ram Nath and another Vs. Ram Dass and others; Civil Appeal No.149 of 2010 titeld as Ram Nath and another Vs. Banto Devi and others; Civil Appeal No. 168 of 2010 title as Neelam Kumar Vs. Banto Devi and others and Civil Appeal No. 169 of 2010 titled as Neelam Kumar Vs. Ram Nath and others. All the four appeals were dismissed by the common order of the Appellate Court as a result thereof the judgment and decree of the trial Court in favour of Banto Devi rendered in Civil Suit No. 807 of 2006 was upheld to the effect that all the children of Jhandu Ram would succeed to his property in equal share as he has been treated to have died intestate.
(3.) The Courts below have not relied upon the Will set up by the plaintiffs dated 12.4.1989 as it bear the right hand thumb impression of Jhandu Ram which could not be compared and was stated to be surrounded by suspicious circumstance. Learned counsel for the appellants has framed a question of law "as to whether, the Will in question, proved by the attesting witnesses, could be discarded by the Courts below on the ground that the thumb-impression of the testator appended on the disputed Will is of the right hand";