FAFO/283/2015 of RAJBALI BHAGAURI KOHAR AND 2 OTHERS Vs ASHOK KUMAR AND 2 OTHERS on 11 May 2026

1. Heard learned counsel for the appellants and Shri Kapil Dev Tiwari, learned counsel for the respondents.

2. Present appeal has been filed challenging the order dated 01.11.2014 whereby the application filed by the appellants seeking recall of the order dated 17.04.2011 came to be rejected.

3. The family tree of the family which has led to the dispute arising inter se in between the parties is as under:

4. The claim of the appellants was based upon succession after the death of second wife Sumaribai who died on 03.03.1997 whereas the claim of the respondents is based upon a Will executed in favour of Sumaribai by the original owner on 02.12.1942. It was claimed that after the death of Sumaribai one Bhagelu, the adopted son, succeeded to the properties. It is also claimed that during her lifetime, Sumaribai had executed a Will in favour of her grandchildren namely Ashok and Om Prakash. Respondents had filed an application for grant of probate in respect of the Will executed by Sumaribai in favour of Ashok and Om Prakash on 14.12.1981 and after considering the relevant claims, the probate was granted by the District Judge vide order dated 17.04.2011. The appellants claiming the rights flowing in their favour by virtue of succession moved an application for recall of the said order which has been rejected.

5. Contention of learned counsel for the appellants is that as the son of Sumaribai namely Bhagelu claims to be an adopted son was not an adopted son, the Will executed in favour of his son namely Ashok and Om Prakash on 14.12.1981 itself was bad in law and thus, the appellants ought to have been heard prior to grant of probate.

6. Learned counsel for the respondents, on the other hand, argues that initially the claim of the appellants was based upon a will allegedly executed in the year 1940 in favour of Fulsibai and Sulsibai by Lurkhur Angan whereas the claim of the respondents was based upon a Will executed by original owner on 02.12.1942 in favour of his second wife Sumaribai.

7. The said issue was agitated before the Bombay High Court and vide its judgment dated 17.01.1951 wherein it was specifically held that the Will executed in favour of Sumaribai in the year 1942 was a genuine Will. The said order was passed by the Bombay High Court on its original side in Cross Appeal No.185 and 313 of 1946. There is no challenge to the said judgment of the Bombay High Court.

8. In the absence of any challenge to the judgment of the Bombay High Court, the claim of the appellants based upon succession loses relevance as the Bombay High Court has categorically held with regard to veracity of the Will executed on 02.12.1942.

9. In the absence of any challenge to the Will executed by Sumaribai in favour of her grandsons or any declaration suit by the appellants, no claim of the appellants appears to be subsisting on the basis of succession.

10. In view thereof, no error can be seen in the impugned order warranting interference. The appeal preferred by the appellants is liable to be dismissed and is accordingly dismissed.

11. It is, however, made clear that this Court has not restrained the appellants from available such remedies as may be available under law. (Pankaj Bhatia,J.) May 12, 2026 nishant Digitally signed by :- NISHANT MOHAN High Court of Judicature at Allahabad