IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CMP(M) No. 145 of 2011. And RSA No. 188 of 2000. Judgment reserved on: 17.03.2011. Date of decision: 21.03.2011. ___________________________________________________ Mehar Singh. …..Appellant. Versus Parkash Devi & Ors. ….Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. N.K.Thakur, Advocate. For the Respondents : Mr.Rajnish Maniktala, No. 1,3 and 4. Advocate. Kuldip Singh, Judge. Respondents have filed this application that the respondent No. 2 Rajinder Singh had died in the year 2002 leaving behind window and five daughters, who are heirs of deceased Rajinder Singh. On 17.10.2010, the name of Rajinder Singh was deleted on the statement made on behalf of the appellant that respondent No. 3 Gurcharan Singh and respondent No. 4 Dilbag Singh, brothers of respondent No.2 Rajinder Singh are already on record and the estate of deceased Rajinder Singh is sufficiently represented. The name of Rajinder Singh was deleted subject to just exceptions. It has been submitted on behalf of the respondents 1,3 and 4 that since legal representatives of deceased Rajinder Singh Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 have not been brought on record within the stipulated period, therefore, appeal has abated. 2. The appellant has filed no reply, but it was orally stated on behalf of the appellant that estate of deceased Rajinder Singh is represented by his brothers Gurcharan Singh and Dilbag Singh, therefore, appeal has not been abated. 3. I have heard the learned counsel for the parties and perused the record. In order to appreciate the question of abatement of the appeal, it is relevant to point out that Parkash Devi, Rajinder Singh, Gurcharan Singh and Dilbag Singh had filed a suit claiming estate of deceased Pritam Singh, father of first plaintiff and grand- father of remaining plaintiffs on the basis of the Will dated 30.03.1988. The suit was filed against Mehar Singh and Mukhatyar Devi. Mehar Singh contested this suit and denied the execution of the Will dated 30.03.1988 and pleaded execution of Will dated 22.09.1989 in his favour by Pritam Singh. 4. The Trial Court returned the findings that the Will dated 30.03.1988 was revoked by Will dated 22.09.1989, but Will dated 22.09.1989 is incapable of taking effect as genuine and valid Will. The Trial Court dismissed the suit on 08.06.1993. The first Appellate Court on 22.02.2000 affirmed the judgment, decree dated 08.06.1993. Mehar Singh, defendant No.1, has come in second appeal. 5. The case of deceased Rajinder Singh as plaintiff was that Will dated 22.09.1989 was un-natural and was the result of fraud and undue influence. Mehar Singh appellant/ defendant No.1 has no 3 right, title or interest in the suit property. Mehar Singh has propounded the Will dated 22.09.1989 of Pritam Singh in his favour. This Will has been held to be not genuine by two Courts below and this finding of the two Courts below as of today is very much in existence. 6. Rajinder Singh deceased-respondent has left behind surviving widow and five daughters. Gurcharan Singh and Dilbag Singh are brothers of deceased Rajinder Singh, but how they are heirs of Rajinder Singh in the presence of surviving widow and daughters of Rajinder Singh that has not been elaborated. It is not the case of the appellant that Gurcharan Singh and Dilbag Singh are inter-meddlers of the estate of Rajinder Singh. Thus, taken from any angle, Gurcharan Singh and Dilbag Singh in the presence of surviving widow and daughters of Rajinder Singh cannot represent the estate of Rajinder Singh in the appeal. The surviving widow and daughters of deceased Rajinder Singh have not been brought on record. 7. The finding of two Courts below regarding Will dated 22.09.1989 so far deceased Rajinder Singh is concerned, has attained finality in the absence of legal representatives of Rajinder Singh on record. The possibility of contradicting judgment in second appeal upholding the validity of the Will dated 22.09.1989 cannot be ruled out in case the second appeal is heard on merits, which is not possible as the surviving widow and daughters of deceased Rajinder Singh have not been brought on record. In absence of legal representatives of Rajinder Singh deceased the appeal is not competent. The abatement of appeal is automatic. It has not been 4 denied that Rajinder Singh died in the year 2002, his heirs namely surviving widow and daughters have not been brought on record. The appeal stands abated. 8. In view of above discussion, the application is allowed, the appeal is dismissed as abated. (Kuldip Singh), Judge. 21st March, 2011. (krt)