IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No. 489 of 2002 Date of decision : 30.6.2008 Harjinder Kaur and others Petitioners Versus Sunita and others. Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 Yes. For the petitioners: Mr. Sanjeev Sood, Advocate vice Mr. K.D.Sood, Advocate. For the Respondent: Mr. Bimal Gupta, Advocate. No.3 Deepak Gupta, J. (Oral) This revision petition under Section 115 of the Code of Civil Procedure (CPC) is directed against the order dated 8th May, 1995 passed by the learned Sub Judge Ist Class, Sundernagar, whereby he dismissed the application filed by the petitioners under Order 22 Rule 3 read with Section 151 CPC and dismissed the suit of the plaintiffs as having abated. Briefly stated, the facts of the case are that the plaintiffs Smt. Harjinder Kaur, Smt. Ranjit Kaur, 1 Whether the reporters of the local papers may be allowed to see the Judgment? Sh. Kulwant Singh and Sh. Gurdit Singh filed a suit against Sh. Dwarka Nath Pathak, Shri Bhanu Kant Pathak and Shri Ravi Kant Pathak, for grant of decree of permanent prohibitory injunction. The plaintiffs alleged that they have half share in the suit property and the defendant No.1 is the owner of the remaining half share. According to the plaintiffs, though no partition has taken place, the defendants have started digging holes in order to raise plantation over the best portion of the suit land. This suit was being contested by the defendants. In the meantime, plaintiff No.4 Gurdit Singh died. An application was filed by the remaining plaintiffs for deleting the name of plaintiff No.4 Gurdit Singh and in the said application it was alleged that plaintiff No.1 Harjinder Kaur is the sole legal representative of Gurdit Singh. This application was contested and the learned trial Court found that deceased had also left behind a widow and a female child. The learned trial Court held that the mother, widow and daughter are all class-I heirs. He came to the conclusion that the conduct of the plaintiffs is not fair and the, widow and minor child were being excluded without given any cogent reasons except that a reference was made to an oral Will allegedly executed by the deceased in favour of his mother. The trial Court, therefore, dismissed the application and also held that the suit had already abated. This order was challenged by the plaintiffs before the learned District Judge, Mandi and the appellate Court set-aside the same. Thereafter, some of the respondents herein filed Civil Revision No. 180 of 1999 and a learned Single Judge of this Court held that no appeal lay against the order rejecting an application for deleting the name of one of the plaintiffs and noting the fact that the suit had abated. Thereafter, the present Civil Revision was filed in this Court. An application for condonation of delay was also filed, which has already been allowed. In my view the learned trial Court was absolutely right in observing that the conduct of the plaintiffs was unfair as far as they were attempting to exclude the widow and minor child of Gurdit Singh from the proceedings. It would be pertinent to mention that the plaintiffs in the application filed for deleting the name of Gurdit Singh did not make any mention of the fact that Gurdit Singh was married or that he had left behind a widow and a minor daughter. It is only the respondents who apprised the Court of this fact and it stands proved on record that the deceased was married to one lady, namely, Supreet who had given birth to a daughter Radhika on 19.3.1994. It was at this stage that the plaintiffs produced the Jamabandi Ext.PA, in which in the column of remarks it was noted that Gurdit Singh deceased had executed an oral Will in favour of his mother-plaintiff No.1. Section 63 of the Indian Succession Act, 1925 deals with the execution of unprivileged Wills. Every such Will has to be in writing, signed and attested in the manner prescribed in the Section. Section 65 of the Indian Succession Act, 1925 deals with privileged Wills. These can be executed only by a soldier or airman employed in an expedition or engaged in actual warfare or any mariner being at sea. Under Section 66 of the Indian Succession Act, a privileged Will can be executed by a word of mouth. There is no other oral Will recognized by law. There is nothing on record to show that the deceased Gurdit Singh fell in the category of person entitled to execute an oral Will. It is, therefore, clear that the plaintiffs were trying to mislead the Court and were also trying to divest the widow and minor child of their shares in the estate of Gurdit Singh. This so called oral Will is no Will in the eyes of law. The rights of the widow and minor children could not have been set at naught by the so called oral Will that too without hearing the parties. However, since the mother, who is definitely one of the heirs of the deceased, was already on record, the learned trial Court was wrong in dismissing the suit as having abated. Once the estate of the deceased was represented, the suit of the plaintiffs could not have been dismissed as having abated. Therefore, the order of the trial Court is set aside to this extent. However to ensure that widow and minor are not condemned unheard, I direct that the plaintiffs shall on or before the date now fixed for appearance before the trial Court file an affidavit giving the names and complete addresses of the widow and the minor daughter. The trial Court shall thereafter issue notices to the minor daughter and the widow of the deceased Gurdit Singh who shall also be arrayed as parties in the suit and the matter shall be heard thereafter. The original suit was filed in the year 1993. Fifteen years have elapsed. Therefore, it is ordered that after all the heirs are served as ordered here-in-above, the learned trial Court shall proceed to hear and decide the matter as early as possible and shall make an earnest endeavour to decide the same latest by 30th June, 2009. Keeping in view the conduct of the plaintiffs, this petition is allowed subject to payment of Rs.5,000/- as costs. Costs be paid before the trial Court on or before the next date of hearing. The parties are directed to appear before the trial Court on 13th August, 2008. In case, costs are not paid, or the affidavit as directed here-in-above is not filed on or before 13th August, 2008 the trial Court shall dismiss the suit for non prosecution. The Registry is directed to ensure that the records of the Court below are sent back so as to reach the trial Court well before the next date. 30th June, 2008 ( Deepak Gupta ), J. ™