IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA. No. 515 of 2001. Judgment reserved on 11.7.2011. Date of Decision: August 5, 2011. _______________________________________________ Tota Ram ….Appellant. Versus. Sant Ram and others. ….Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1?. No. For the appellant. :Mr. Bimal Gupta, Advocate. For Respondents. :Mr. G.D.Verma, Sr. Advocate with Mr.Romesh Verma, Advocate. Dev Darshan Sud, J. This is the plaintiff’s appeal against the judgment of two courts below dismissing the suit praying for decree of declaration that he has become owner of the entire estate of one late Sh. Hiru, who died issueless. Bhimi had two wives, namely, Ramku and Faquiria. Bhimi had two sons Tota Ram and Hiru. Hiru died issueless on 5.3.1990 and at the time of his death, he was owner in possession of suit land measuring 22 bighas being half share of land comprised in khata No.7 khatauni No. 7 to 11, measuring 43 bighas 19 biswas. The plaintiff Whether reporters of the Local papers are allowed to see the judgment.yes. 2 pleads that after the death of Hiru, the entire land has devolved upon him as Hiru was issueless and he was the only legal heir entitled to inherit the land. Ram Dei is the daughter of Faqiria. Learned trial Court, on the basis of testamentary succession, Will Ext.PW4/A which was executed by Hiru in favour of Ram Dei wife of Sh. Sant Ram upheld the Will and dismissed the suit. The Will states that she is looking after her mother as also the testator. The learned trial Court has considered in detail that the execution of the Will has been proved beyond any reasonable doubt and, therefore, the plaintiff is not entitled to inherit the land. In appeal, the validity of the execution of the will was challenged and the learned District Judge holds that the submission made on behalf of the plaintiff-appellant before the learned appellate Court that the Will was fake cannot be adjudicated as Ram Dei daughter of Sh.Fakiria in whose favour the will was executed was not a party respondent before that Court. Learned District Judge then observes that: “Though this Court has its reservation regarding the due execution of the Will, but, the Court has not intentionally entered into detail merits of the case regarding the due execution of the Will for the simple reason that Sh.Tota Ram plaintiff had no locus-standi to file the present suit in respect of estate of his real brother namely Hiru in the presence of Smt. Ramku, who is Class-I heir to the estate of late Hiru. Therefore, the suit filed by the plaintiff claiming the estate of late Hiru under the provisions of Hindu Succession Act on the ground that Hiru died in intestate and mutation No.155 dated 13.6.1990 Ext.PW1/A is not legally maintainable for the detailed reason given hereinbefore. Point No.1 is answered accordingly”. 3 I find that the observations made by learned District Judge are totally un-called for the reason being that once he held that Ram Dei was not a party to the proceedings before the Court below and the learned trial Court having held that the execution of the will was duly proved in accordance with Section 63 of the Succession Act, it was not open to the learned appellate Court to make this observation. This appeal was admitted on two questions of law: 1. Whether in the facts and circumstances of the case, the learned Additional District Judge has committed an error of law in holding without any plea of defendant that on the death of Sh.Hiru his share would go to Smt. Ramku Devi, his mother, and the plaintiff has no locus standi to file the suit against the defendant and challenge the Will Ext.PW4/A of Sh. Hiru in favour of the defendant. 2. Whether in the alternative the plaintiff being the co- sharer of late Sh. Hiru is entitled to decree as prayed against the defendant who has no title against the plaintiff, more particularly, when the learned Additional District Judge has shown his reservation in the impugned judgment, decree regarding the due execution of Will Ext.PW4/A by Sh. Hiru in favour of the defendant.” Both these questions can be disposed of together. I do not find that any error has been committed by the learned appellate Court, more especially, when the learned trial Court considered due execution of the Will Ext.PW4/A. If the learned appellate Court expressed its reservation regarding due execution of the Will, it was not entitled to do so, since Ram Dei in whose favour the Will was executed was not party. Once the Will had been set up it was but obvious that the succession of the estate could be determined only after adjudication on the question of the validity of the Will. The suit was improperly constituted. 4 In these circumstances, the questions of law are decided against the appellant. There is, thus, no merit in this appeal which is accordingly dismissed. (Dev Darshan Sud), Judge. August 5 , 2011(R)