APPELLANT/: (Plaintiff) HIGH COURT OF CHHATTISGARH. BILASPUR Second Appeal No.296 of 2011 Lalit, aged about 45 years, S/o Chakra Sanwra, R/o Village Sighanpur, Tahsil Saraipali, District Mahasamund (C.G.) RESPONDENTS/: (Defendants) Versys 1. Shoukilal, aged about 53 years, S/o Chakra, ^ 2. Umashanker, aged about 34 years, S/o Jagdish, 3. Parvati Wd/o Jagdish, aged about 60 years, ^AII R/o Village Sighanpur, R.l. Circle Khamharpali, Tahsil Saraipali, Distt. Mahasamund (C.G.) {Second appeal under Section 1 00 of Civil Procedure Code} Present: Mr. L.C. Dash, counsel for the appellant. Mr. R.S. Patel, counsel for respondents No.2 & 3. Single Bench: Hon'ble IVIr. T.P. Sharma, J JUDGMENT (25-11-2011) 1. By this second appeal under Section 100 of the CPC, the appellant has challenged legality and propriety of the judgment & decree dated 5-7-2011 passed by the 2 Additional District Judge, Mahasamund, in Civil Appeal No.29A/2011, affirming thejudgment & decree dated 26-8-2009 passed by the 2nd Civil Judge Class-1, Saraipali in Civil Suit No.13A/2009, whereby while denying the execution of will in favour of the appellant herein by Bhuneshwar both the Courts below have decreed the suit on the ground of non-testamentary succession and has excluded the testamentary succession on the basis of alleged will deed, alleged to have been executed by Bhuneshwar - uncle of the appellant herein, respondent No.1 herein & respondent No.2 herern and brSther-in-law of respondent No.3 herein. 2. I have heard learned counsel for the parties, perused judgments & decrees and records of both the Courts below. 3. As per claim pf the parties, father of the appellant Chakro were three brothers namely Ctiakro, Jagdish & Bhuneshwar. Bhuneshwar died issueless. As per claim of the appellant herein, Bhuneshwar had executed will in favour of the appellant herein ahd after death of Bhuneshwar dispute arose, then suit was filed in which respondeht No,1 herein i.e. brother of the appellant herein, respondent No.2 herein i.e. son of uncle of respondent No.1 and respondent No.3 herein i.e. wife of uncle of respondent No.1 have specifically claimed that Bhuneshwar died issueless without executing any will and they along with the appellant herein are non-testamentary heirs of Bhuneshwar. After affording opportunity of hearing to the parties, the trial Court has decreed the suit on the basis of non-testamentary succession which has been upheld by the lower appellate Court. 4. Especially in the light of evidence of the appellant herein which has been considered by the trial Court and the lower appellate Court, it is clear that at the time of alleged execution ofwill Bhuneshwar was not in conscious mind, he was aged about 85 years and at the time of his consciousness he used to sign in Oriya language, but he had put his thumb impression in the document because he was not in conscious mind at the time of execution of will. This evidence is sufficient to prove the fact that will has not been duly executed or execution of will was not genuine. Considering the evidence of the appellant himself, both the Courts below have denied the claim of the appellant of succession on the basis of will but has decreed the suit on the basis of non-testamentary succession. By decreeing the suit on the basis of non-testamentary succession and denying the claim of succession on the basis of will i.e. testamentary succession, both the Courts below have not committed any illegality. 1 do not find any substance or substantial question of law for decision of this appeal. 5. Consequently, the appeal is liable to be dismissed and it is hereby dismissed, at the admission stage itself. No order as to costs. 6. I.A.No.1 stands disposed of. T.P, Soma Sd/- Shan Judge