Hon''ble Sibghat Ullah Khan, J.@mdashHeard learned counsel for the parties at the admission stage.
2. Through order dated 2.12.2003 records were directed to be summoned at appellant''s costs which was accordingly done.
3. This appeal was dismissed in default on 18.5.2011. However, the said order was recalled by order dated 28.7.2011 passed on the order sheet on payment of Rs.5000/- as cost. The cost has been paid, receipt given by the learned counsel for the respondent is on record.
4. This is plaintiff''s Second Appeal arising out of O.S. no.948 of 1993 which was dismissed on 25.9.2002 by Additional Civil Judge (J.D.) court no.4, Varanasi. Against the said judgment and decree Civil appeal no.142 of 2002 was filed which was dismissed on 9.9.2003 by A.D.J. Court no.3, Varanasi, hence this Second Appeal.
5. The suit was filed for cancellation of will dated 3.1.1986 executed by late Sri Ram Shanker Upadhyay who was real brother of the plaintiff. The will was executed by Ram Shanker Upadhyay in favour of his three daughters who all were married at that time. Sri Ram Shanker Upadhyay had no son. In the absence of the will plaintiff would have inherited the agricultural land regarding which will was executed u/s 171 of U.P.Z.A.L.R. Act as it stood at that time. Regarding limitation the case of the plaintiff was that dispute was going on between the parties before revenue courts in mutation proceedings, however, the defendants filed the original will before the Court of A.S.D.O. on 4.9.1993 hence suit for cancellation was filed within a week therefrom i.e. on 10.9.1993. The ground taken in the plaint to challenge the will was that it was sham, illegal and result of fraud and it did not bear the signatures of late Sri Ram Shanker Upadhyay.
6. Initially, the suit was dismissed on 19.8.1995 against which civil appeal no.189 of 1985 was filed which was allowed by IV A.D.J., Varanasi and matter was remanded to the trial court. After remand suit was again dismissed on 25.9.2002.
7. Late Sri Ram Shanker Upadhyay was highly qualified person. Initially he worked in Indian Railways at Calcutta and after retirement he worked as teacher in Railway school. His signatures on the will were in English. The will was registered on 7.1.1986. Both the courts below held that the will bore the signatures of Sri Ram Shanker Upadhyay and there was absolutely nothing suspicious surrounding the will. As the will was executed by Sri Ram Shanker Upadhyay in favour of his three married daughters, so that, they could get his agricultural land after his death was quite natural. In normal course no man will give preference to his brother over his daughters. It was a strange provision in U.P.Z.A.L.R. Act that even in the presence of married daughters, agricultural land left behind by a person was to be inherited by his brothers. However, now the legislature has corrected the error and under the amended Section 171 of U.P.Z.A.L.R. Act unmarried daughters as well as married daughters have got preference over brother in the matter of inheritance of agricultural land.
8. The plaintiff himself appeared in the witness box as P.W. 1. In para 22 of the judgment of the lower appellate court it is mentioned that plaintiff in his cross examination admitted that his late brother Ram Shanker Upadhyay usully signed in English and he could not recognise his signatures as he did not know English. This virtually amounted to the admission in the form of absence of denial. Defendants asserted that the will contained signatures of their father R.S. Upadhya. Plaintiff stated that he could not recognise as to whether signatures were or were not of Ram Shanker Upadhyay.
9. On behalf of the defendants three witness were examined; Kailash Pati Pandey, Udai Nath Tiwari and Jagdish Pandey who all proved the signatures of Ram Shanker Upadhyay on the will. Jagdish Pandey and Udai Nath Tiwari were attesting witness of the will.
10. Both the parties had examined expert evidence also. The courts below after examination of the expert evidence held that the signatures were of Sri Ram Shanker Upadhyay and evidence of handwriting expert examined on behalf of plaintiff was not accepted. The courts below also held that non examination of any of the defendants was not fatal. The plaintiff in his oral statement could not even give the reason of death of Ram Shanker Upadhyay, he also could not prove that he participated in the last rites of Sri Ram Shanker Upadhyay. He stated that Sri Ram Shanker Upadhyay died in Varanasi but at which place he did not know. Plaintiff also admitted that final rites were performed by Manoj son of Krishn Murari Shukla and one of the daughters of late R.S. Shukla.
11. I do not find least error in the impugned findings. Plaintiff could not point out least suspicious circumstance surrounding the will. It was an absolutely natural will, father giving his agricultural land to his married daughters. Plaintiff could not show such strong liking for him by his deceased brother that his deceased brother could decide not to give the land to his daughters but to him. Plaintiff also could not show that he took any special care of his deceased brother.
12. The following authorities cited by learned counsel for the appellant do not advance appellant''s case:
1.
2. H. Venkatachala Iyengar v. Thimmajamma AIR 2010 SC 1950
3. Bharpur Singh v. Shamsher Singh, U.P. Revenue Judgments 2009(2) RJ 896
4. Gurdial Kaur v. Kartar Kaur R.D.1998, 388 SC
13. Accordingly, I do not find least error in the impugned findings regarding genuineness of the will. I do not propose to decide the question of limitation as the findings regarding genuineness of the will are perfectly valid. The argument of learned counsel for the appellant that after holding the suit to be barred by time, findings of on other issue should not have been given by the courts below is not at all acceptable. Under Order 14 Rule 2 C.P.C. court is required to pronounce judgment on all issues even if case may be disposed of on a preliminary issue. Court would have been precluded from deciding other issues only if question of limitation had been decided as a preliminary issue and in favour of the defendants. The authority of the Supreme Court reported in State of Bihar v. A.P. Rajak 2009 Allahabad, C.J. 1243 is not at all applicable as in the said authority it has been held that when appeal is dismissed as barred by time appellate court should not say anything on the merit of the case. Second Appeal is, therefore, dismissed under Order 41 Rule 11 C.P.C.
