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2025 DIGILAW 1698 (RAJ)

Ratan Singh S/o Narayan Singh Panwar v. Rajendra Singh Panwar S/o Narayan Singh Panwar

2025-11-01

SUDESH BANSAL

body2025
Order : SUDESH BANSAL, J. 1. This Civil First Appeal under Section 96 of CPC has been filed by defendant No.2 against the final order dated 03.11.2023 passed by the Additional District Judge No.6, Jaipur Metropolitan-I declaring 1/3 rd share of defendant No.1 (now deceased), to be of plaintiff (in addition to his own 1/3 rd share) on the basis of registered Will dated 15.11.2003 (Exhibit-22) executed by defendant No.1 and thereby amending the preliminary decree of partition dated 23.10.2001 in the manner that plaintiff shall be entitled for 2/3 rd share and defendant No.2 for 1/3 rd share in the suit properties. 2. Heard counsel for both parties at length and perused the material available on record. With consent of counsel for both parties, this first appeal, vide order dated 10.10.2025, was posted for the final hearing at the stage of admission and has been heard finally on merits. 3. Dispute in this appeal is between appellant-defendant no. 2 and respondent No.1-plaintiff in respect of 1/3 rd share of respondent No.2-defendant no.1 (now deceased) in the suit properties. 4. It will be apropos to disclose the nomenclature of parties as they were called before the trial Court. Respondent No.1 is the plaintiff. Respondent No.2 was defendant No.1 (now deceased). Appellant is defendant No.2. Respondent No.2 (now deceased) happens to be father of appellant & respondent No.1 and they are two brothers. Respondents No.3, 4 and 5 are three daughters of Respondent No.2 (now deceased) and Respondent No.6 is Bank-formal party. 5. At the outset, it is necessary to take note of the fact that, it is not in dispute that vide preliminary decree of partition dated 23.10.2001 passed in Civil Suit for partition bearing No. 57/2001 by the Additional District Judge No.6, Jaipur Metropolitan, suit properties including movable and immovable properties of late Smt. Mohan Kanwar were divided in equal share of 1/3 rd -1/3 rd among her husband and two sons (plaintiff and defendant no. 1 & 2). Since her daughters expressly relinquished their shares and did not opt/claim any share in the suit properties, hence, suit properties were divided in equal three shares amongst husband and two sons only. It is noteworthy that the preliminary decree of partition declaring 1/3 rd – 1/3 rd share of each plaintiff and defendants No.1 & 2 in the suit properties, was not assailed by any party. 6. It is noteworthy that the preliminary decree of partition declaring 1/3 rd – 1/3 rd share of each plaintiff and defendants No.1 & 2 in the suit properties, was not assailed by any party. 6. It appears that during course of proceedings of final decree, in furtherance to the preliminary decree of partition dated 23.10.2001, defendant No.1- father of plaintiff and defendant No.2 passed away on 09.11.2012. 7. Defendant No.2 (Appellant herein) claimed that 1/3 rd share of defendant No.1 should be further equally divided between his two sons viz. Plaintiff and defendant No.2 and preliminary decree be amended accordingly, whereas plaintiff relied upon a Will dated 15.11.2003 asserted that his father-defendant No.1 has bequeathed his 1/3 rd share in plaintiff’s favour, hence, on the basis of Will, 1/3 rd share of defendant No.1 (now deceased) be declared to be given to plaintiff. On filing misc. applications in this regard, an enquiry was ordered to be conducted by the trial Court, purportedly under Order 20 Rule 18 CPC, in order to decide the further allocation of 1/3 rd share of defendant No.1 (died after preliminary decree) either exclusively to the plaintiff on the basis of registered Will of defendant No.1 or equally between plaintiff and defendant No.2, who are two sons of defendant No.1, if his Will is not proved as lawful, valid and genuine. 8. Vide order impugned herein dated 03.11.2023, after the detailed enquiry and recording evidence of parties, the trial Court held that registered Will dated 15.11.2003, executed by defendant No.1-Narayan Singh Panwar is genuine, lawful and valid, hence, his 1/3 rd share in the suit properties as declared in the preliminary decree of partition dated 23.10.2001 has been directed to be given to the plaintiff and accordingly the preliminary decree of partition dated 23.10.2001 has been amended allowing division of suit properties in 2/3 rd : 1/3 rd ratio between plaintiff & defendant No.2, where against the present first appeal has been filed by defendant No.2. 9. It has been argued by counsel for appellant-defendant No.2 that plaintiff could not prove due execution and attestation of the Will in question nor could prove the Will beyond suspicion. Both attesting witnesses of Will, although were produced by plaintiff in the witness box, they failed to prove the signature of testator on Will, by identifying his signature specifically. The Scriber of Will Shri Rajesh Mohan Sethi, Adv. Both attesting witnesses of Will, although were produced by plaintiff in the witness box, they failed to prove the signature of testator on Will, by identifying his signature specifically. The Scriber of Will Shri Rajesh Mohan Sethi, Adv. was not produced by plaintiff for no good reason. The reasons assigned in the Will to deprive the appellant-defendant No.2 to get any share out of 1/3 rd share of his father- defendant No.1, are false and since at the time of execution of Will, father was residing with plaintiff and plaintiff played vital role in execution of Will in his own favour, the Will in question suffers from various suspicious circumstances which have not been removed by the plaintiff, hence, the trial Court erred in accepting the Will as a genuine, valid and proved document. In addition, his submission is that, through the Will in question, father bequeathed his 1/3 rd share in the jewellery to his three daughters, hence, his 1/3 rd share in the jewellery cannot be declared to be of plaintiff and therefore, the preliminary decree as amended vide order impugned, is not sustainable on facts and law, as such liable to be quashed and deserves to be modified. His final prayer is that 1/3 rd share of defendant No.1 be declared to be divided equally between plaintiff & defendant No.2. 10. Per contra, counsel appearing on behalf of respondent No.1- plaintiff supported findings of the trial Court recorded in the impugned order, accepting the execution and attestation of the Will in question as lawful and valid and declaring 1/3 rd share of father- defendant No.1 to be of plaintiff, on the basis of his registered Will. In respect of giving 1/3 rd share of father in jewellery to his three daughters under the Will in question, learned counsel, on instructions of plaintiff, expressed no objection and is agreeable to honor the Will of his father as it is. 11. In respect of giving 1/3 rd share of father in jewellery to his three daughters under the Will in question, learned counsel, on instructions of plaintiff, expressed no objection and is agreeable to honor the Will of his father as it is. 11. Learned counsel appearing on behalf of respondents No.3, 4 and 5, who are three daughters of deceased defendant No.1, having instructions of their parties, states at bar that three daughters are not interested at all in taking any share in the jewellery and submits that, if 1/3 rd share of father in the suit properties as a whole including the share in the jewellery, is solely given to their brother Rajendra Singh Panwar (respondent No.1- plaintiff herein), on the basis of Will of their father-defendant No.1, they have no objection. 12. Learned counsel for respondents No.3, 4 and 5 does not dispute the execution and attestation of Will in question and does not oppose the impugned order dated 03.11.2023. 13. Having heard respect counsel for both parties and from perusal of the record, it is apparent that signature of testator (defendant No.1- now deceased) on the Will in question dated 15.11.2003 (Exhibit-22) is not under dispute since defendant No.2 does not question the signatures of defendant No.1 on the Will and Will is a registered instrument. It has also not been disputed by the defendant No.2 that at the relevant point of time, defendant No.1 was in fit and sound state of mind. That apart after execution of Will dated 15.11.2003, defendant No.1 also executed an another Will dated 29.12.2009 (Exhibit-23). The Will in question dated 15.11.2003 was executed by defendant No.1 in respect of his 1/3 rd share in the suit properties and subsequent Will dated 29.12.2009 was executed by him bequeathing his amount deposited in his saving Bank account in State Bank of Bikaner and Jaipur to his son (plaintiff herein). In the later Will dated 29.12.2009, which is also registered instrument, testator- defendant No.1 re-verified execution of his previous Will dated 15.11.2003. 14. It is apparently clear from the record that both original Wills were produced on record by the plaintiff. In respect of obtaining the custody of original Wills, plaintiff (PW-1) has deposed in his cross-examination that his father Narayan Singh Panwar handed over both original registered Wills to him before his death. 14. It is apparently clear from the record that both original Wills were produced on record by the plaintiff. In respect of obtaining the custody of original Wills, plaintiff (PW-1) has deposed in his cross-examination that his father Narayan Singh Panwar handed over both original registered Wills to him before his death. Plaintiff has clearly denied to play any role or his presence anywhere in the process of execution of two Wills by his father, although, in his evidence, signature of his father on every page of the Will has been identified marked as A to B on both Wills (Exhibit-22 & 23). Attesting witnesses on both Wills are same. Signature of attesting witness Sunil Joshi has also been identified by PW-1 as marked E to F and signature of attesting witness Mumtaz Hussain has been identified as C to D. Plaintiff categorically denied to know the scriber of Will i.e. Rajesh Mohan Sethi, Adv. He stated that he and his father resided in the same house but his father lived in an independent and separate room. He stated that attesting witnesses Sunil Joshi and Mumtaz Hussain used to come at his home and when his father disclosed him about executing two Wills and attestation of Wills by witnesses Sunil Joshi and Mumtaz Hussain, then he enquired from both the attesting witnesses about fact of execution of Wills and putting signatures by them on the Wills as attesting witnesses. 15. This Court finds that it is established from the record that both attesting witnesses Sunil Joshi (PW-2) and Mumtaz Hussain (PW-3) appeared in the witness box to prove the attestation of the Wills (Exhibit-22 & 23). Both witnesses deposed on oath that testator Narayan Singh Panwar made his signatures on the Wills in front of them and they made their respective signatures as attesting witnesses, on instructions of testator Narayan Singh Panwar. Both witnesses not only acknowledged signing of Will by testator in their presence but also verified presence and signatures of each other on both the Wills and categorically denied presence of plaintiff Rajendra Singh Panwar at any time in the process of execution and registration of both the Wills. The testimony of both attesting witnesses PW-2 & PW-3 remained unshaken in their respective cross-examination by the counsel for defendant No.2. The testimony of both attesting witnesses PW-2 & PW-3 remained unshaken in their respective cross-examination by the counsel for defendant No.2. In the opinion of this Court, attestation of Will dated 15.11.2003 (Exhibit-22) and Will dated 29.12.2009 (Exhibit-23) has been proved by both witnesses of Wills in conformity to Section 63 (c) of the Indian Succession Act, 1925 and for ready reference provision of (c) of the Indian Succession Act, reads as under:- “ 63 (c) . The Will shall be attested by two or more 1 witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.” 16. It appears that defendant No.2 took a plea that Will was got prepared by plaintiff, by taking defendant No.1 under his influence and having collusion with both the attesting witnesses, but defendant No.2 miserably failed to establish such plea and except his oral statements and denial, no other cogent and convincing evidence either oral or documentary was produced by defendant No.2. As has been noted herein above that defendant No.2 never disputed the signature of his father-defendant No.1 on the Will in question nor questioned fitness and soundness of physical and mental health of his father at the time of execution of Will. In the opinion of this Court, merely on the basis of disputing the execution of Will, in his oral statements by defendant no.2, may not be held sufficient to assume the execution of Wills doubtful, more so, when the execution of Wills have been proved by the propounder of Will, as required under the law and both attesting witnesses of Will have appeared before the Court to prove the execution and attestation of Will, in accordance with law. 17. The Hon’ble Supreme Court in its judgment passed in case of H. Venkatachala Iyengar vs. B.N. Thimmajamma & others, [ AIR 1959 SC 443 ] , observed and held as under:- “……. 17. The Hon’ble Supreme Court in its judgment passed in case of H. Venkatachala Iyengar vs. B.N. Thimmajamma & others, [ AIR 1959 SC 443 ] , observed and held as under:- “……. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator’s mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.” The aforesaid observation and view of Hon’ble Supreme Court has further been affirmed and followed by the Hon’ble Supreme Court recently in case of Ganesan (D) through LRs. Vs. Kalanjiam & Ors. [ (2020) 11 SCC 715 ]. 18. The objection of counsel for appellant- defendant No.2 that in the evidence-in-chief deposed by attesting witnesses PW-2 & PW-3, they have not specifically recognized the signature of testator on Will by marking as X or A to B, is too technical and does not worth any merit. Will in question is a registered instrument and signature of testator on each and every page of Will has clearly been acknowledged and proved by the attesting witnesses. It has come on record that the attesting witnesses were known to testator as they usually visit at home, hence, it is not of much material worth that they were closely known to the plaintiff as well. Further, in view of the established fact that testator executed the Will in question in sound state of mind, there is no force in the contention of counsel for appellant that Will was executed by defendant no.1 under the influence and pressure of plaintiff and the attesting witnesses were in collusion with the plaintiff, more particularly, when such factual plea has not been supported by any contemporary evidence and has not been proved. 19. The objection of counsel for appellant-defendant No.2, for non-production of scriber of the Will i.e. Rajesh Mohan Sethi, Adv. by the plaintiff in his evidence, has rightly been turned down by the trial Court specific findings and observation that production of scriber of Will is not an essential requirement in law and the execution of Will can be proved otherwise. The objection of counsel for appellant-defendant No.2, for non-production of scriber of the Will i.e. Rajesh Mohan Sethi, Adv. by the plaintiff in his evidence, has rightly been turned down by the trial Court specific findings and observation that production of scriber of Will is not an essential requirement in law and the execution of Will can be proved otherwise. It may be noted that, Section 68 of the Indian Evidence Act (now Section 67 of the Bharatiya Sakshya Adhiniyam, 2023) and Section 63 of the Indian Succession Act, do not stipulate any essential requirement for appearance of scriber of Will to prove the execution of Will. The necessary requirement of Law to prove the execution of Will by producing at least one of the attesting witness has been fulfilled in the present case. The evidence led by the plaintiff in proof of due attestation of the Will, cannot be said to be deficient in any legal requirement. The finding of the trial Court that Will was duly attested in accordance with the requirement of law, is based on analytical discussion and consideration of the evidence. The material available on record in entirety has been appreciated and the fact findings of trial Court, are neither perverse nor suffer from any arbitrariness or manifest illegality on merits, hence, do not warrant any interference and are hereby affirmed by this Court. The contention of counsel for appellant-defendant No.2 that Will in question is surrounded by suspicious circumstances and same have not been removed by the plaintiff, does not find any worth consideration. Mere fact that defendant No.1 was residing with plaintiff in the same house, at the time of execution of Wills in question, itself does not create any suspicion about due execution of Wills by defendant No.1 out of his free will and volition and in conscious state of mind. In addition, his signatures on the Wills and soundness of mind and physical fitness is not at all in question and controversy herein. 20. In the opinion of this court, the celebrated and landmark judgment of the Hon’ble Supreme Court delivered in case of Kavita Kanwar Vs. Pamela Mehta & Ors. [(2021) 11 SCC 209] , on which counsel for appellant has strongly placed reliance, do not support the case of appellant herein. 20. In the opinion of this court, the celebrated and landmark judgment of the Hon’ble Supreme Court delivered in case of Kavita Kanwar Vs. Pamela Mehta & Ors. [(2021) 11 SCC 209] , on which counsel for appellant has strongly placed reliance, do not support the case of appellant herein. In this judgment, the Hon’ble Supreme Court held and observed that the suspicious features must be “real, germane and valid” and not merely “fantasy of the doubting minds”. It was observed that a shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the Will by the beneficiary thereunder etc. are some of the circumstances which may give rise to suspicion. Whereas, in the case at hand, none of the above illustrated facts and circumstances exists. There is no issue at all on the testamentary capacity and soundness of mind of the testator and genuineness of his signatures on the Will in question and factum of registration of Will are also not in controversy. 21. In a later judgment of the Hon’ble Supreme Court delivered in case of Swarnalatha & Ors. Vs. Kalavathy & Ors. [AIR 2022 SC 1585; MANU/SC/0381/2022], the factum of suspicious circumstances surrounding the execution of Will came up for consideration and while considering the judgment of the Hon’ble Supreme Court in case of Kavita Kanwar (supra) following observations were made in Para No. 25 of the judgment, as under:- “25. The law relating to suspicious circumstances surrounding the execution of a Will is already well- settled and it needs no reiteration. It is enough if we make reference to one of the recent decisions of this Court in Kavita Kanwar Vs. Mrs. Pamla Mehta and Ors. where this Court referred to almost all previous decisions right from H. Venkatachala Iyengar Vs. B.N. Thimmajamma. But cases in which a suspicion is created are essentially those where either the signature of the testator is disputed or the mental capacity of the testator is questioned. This can be seen from the fact that almost all previous decisions of this Court referred to in Kavita Kanwar (supra) list out circumstances, which in the context of the lack of sound and disposing state of mind of the testator, became suspicious circumstances. This can be seen from the fact that almost all previous decisions of this Court referred to in Kavita Kanwar (supra) list out circumstances, which in the context of the lack of sound and disposing state of mind of the testator, became suspicious circumstances. In the matter of appreciating the genuineness of execution of a Will, there is no place for the Court to see whether the distribution made by the testator was fair and equitable to all of his children. The court does not apply Article 14 to dispositions under a Will.” (emphasis supplied) 22. In view of above, in the present appeal, this court finds that no suspicious circumstances exist to show that the Will in question is surrounded by the unexplained or any legitimate suspicious circumstances. The contention of counsel for the appellant is worthless. 23. As far as other contention of counsel for appellant - defendant No.2 that the reason assigned in the Will to exclude defendant No.2 by his father from any disposition out of his 1/3 rd share in the suit properties, is false, is concerned, the argument of appellant’s advocate is that since there is no evidence on record that defendant No.2 ever assaulted his father, rather plaintiff himself admits in his cross-examination that there was no enmity between his father and defendant No.2, therefore such reason was falsely indicated in the Will, which shows falsity of Will. In this respect, Will in question dated 15.11.2003 (Exhibit-22) has been perused by this Court as a whole. In the Will, father has assigned various reasons and expressed his strong displeasure with his son Ratan Singh (appellant-defendant No.2 herein) due to his conduct and conduct of his family. It has been specifically stated that his son Ratan Singh never pay any respect to him and usually his behavior is quarrelsome, he and his wife and children often misbehaved and maltreated him and, when the quarrel between them was escalated, Ratan Singh left his company and started to reside with his wife & children elsewhere. In this sequence, it is also stated therein that his son Ratan Singh made an assault on him. This court is of the view that a close reading of the Will, undertakes its clear language and its unambiguous purport and effect. In this sequence, it is also stated therein that his son Ratan Singh made an assault on him. This court is of the view that a close reading of the Will, undertakes its clear language and its unambiguous purport and effect. The mind of testator is clearly discernible and the reasons for exclusion of his son Ratan Singh (appellant-defendant No.2 herein) are apparently mentioned in Will itself. Testator in clear words has disclosed his mind to be unhappy with the behavior of his son Ratan Singh and on the contrary being happy and more than satisfied with the behavior and service of his son Rajendra Singh Panwar (respondent No.1-plaintiff herein). 24. This Court is of the view that the testator was competent to will away his 1/3 rd share in the suit properties, which has been declared under the preliminary decree for partition dated 23.10.2001 and his competency to bequeath his 1/3 rd share in the suit properties by way of Will has not been disputed by the counsel for appellant before this Court. It is true that the testator, expressed his wish in the Will that his 1/3 rd share in the jewellery, locked up in the Bank Locker of Lt. Smt. Mohan Kanwar be given to his three daughters and Bank Locker be opened in their presence. From perusal of Will as whole, this Court does not find any unusual circumstance or situation, obtaining in the present appeal, that due to exclusion of defendant No.2 by his father from his 1/3 rd share in the suit properties, the Will in question should be assumed to be suffer from any unexplained suspicious circumstances, hence the contention of counsel for appellant in this regard is devoid of substance. 25. The counsel for the appellant has also relied upon the judgment of the Hon’ble Supreme Court delivered in case of Murthy & Ors. Vs. C. Saradambal & Ors. [ (2022) 3 SCC 209 ] and in case of Bharpur Singh Vs. Shamsher Singh [AIR 2009 SC 1766] , do not render any support to the case of appellant to show that Will in question is surrounded by any unusual and unexplained suspicious circumstances. Counsel for appellant has also relied upon the judgment of the Hon’ble Supreme Court in case of S. Srinivasa Vs. Shamsher Singh [AIR 2009 SC 1766] , do not render any support to the case of appellant to show that Will in question is surrounded by any unusual and unexplained suspicious circumstances. Counsel for appellant has also relied upon the judgment of the Hon’ble Supreme Court in case of S. Srinivasa Vs. S. Padmavathamma [(2010) 5 SCC 274] wherein it was expounded that mere registration of Will not by itself sufficient to remove the suspicion and where execution of Will was shrouded by suspicious circumstances, it was necessary for propounder of Will to explain such circumstances. It was also held that admission about making of Will does not amount to admission of due execution and genuineness of Will. There is no quarrel about the exposition of law made by the Hon’ble Supreme Court in this judgment, but as has been discussed hereinabove that in the present appeal, Will in question has not been found to be shrouded by any unexplained and unusual suspicious circumstances and further the execution of Will by the testator has been proved to be made by him consciously and in his sound state of mind. Further the attestation of Will by both the attesting witnesses has been found proved in accordance with law, hence, in the opinion of this Court, there is nothing on record to assume the Will in question, as ungenuine or invalid document in law. This Court finds that the trial Court has not committed any error of fact or law, in accepting the Will in question as genuine, lawful and valid testament. 26. In case of Ved Mitra Verma Vs. Dharam Deo Verma [ (2014) 15 SCC 578 ] , the Hon’ble Supreme Court held that the exclusion of children of the testator and execution of the Will for the sole benefit of one of the sons by the testator, is not a suspicious circumstances. Relevant Para No.8 of the judgment reads as under:- “8. The exclusion of the other children of the testator and the execution of the Will for the sole benefit of one of the sons i.e. the respondent, by itself, is not a suspicious circumstance. The property being self- acquired, it is the will of the testator that has to prevail.” (emphasis supplied) This judgment has further been followed and relied upon by the Hon’ble Supreme Court in a subsequent judgment delivered in case of Dhanpat Vs. The property being self- acquired, it is the will of the testator that has to prevail.” (emphasis supplied) This judgment has further been followed and relied upon by the Hon’ble Supreme Court in a subsequent judgment delivered in case of Dhanpat Vs. Sheoram [ (2020) 16 SCC 209 ]. 27. Thus, in the present case, it is not an unusual or suspicious circumstances, that the defendant No.1 bequeathed his 1/3 rd share in the suit property to his son (plaintiff herein), excluding his another son (defendant No.2 herein) and the trial Court has not erred in declaring to give 1/ 3 rd share of defendant No.1 in the suit properties to the plaintiff and amending the preliminary decree for partition dated 23.10.2001 accordingly. 28. As far as contention of counsel for appellant defendant No.2 that even if the Will in question dated 15.11.2003 is accepted, as it is, as per this Will, 1/3 rd share of defendant No.1 in the jewellery was given to his three daughters, respondent Nos.3, 4 and 5 herein and not to the plaintiff, hence, to this extent, the preliminary decree for partition dated 23.10.2001 as amended vide impugned order dated 03.11.2023 needs further correction and modification, hence for such reasons, at least the impugned order dated 03.11.2023 is unsustainable. In this respect, it is suffice to notice that firstly there is no appeal against the impugned order dated 03.11.2023 from the side of respondent Nos.3, 4 and 5, rather counsel appearing on behalf of respondent Nos.3, 4 and 5 in this appeal, has clearly stated at bar that three daughters of defendant No.1 are not interested at all in taking any share in the jewellery and do not have any objection to give entire 1/3 rd share of defendant No.1 including in the jewellery in question to the respondent No.1-plaintiff. Hence counsel for respondent Nos.3, 4 and 5, in consensus to affirm the impugned order dated 03.11.2023. Secondly, this Court has noticed that in the judgment and preliminary decree of partition dated 23.10.2001, the trial Court had clearly observed that three daughters of late Smt. Mohan Kanwar do not claim and undertake not to claim any share in the jewellery left by their mother. Secondly, this Court has noticed that in the judgment and preliminary decree of partition dated 23.10.2001, the trial Court had clearly observed that three daughters of late Smt. Mohan Kanwar do not claim and undertake not to claim any share in the jewellery left by their mother. In that view, the jewellery of Late Smt. Mohan Kanwar was divided in equal 1/ 3 rd – 1/ 3 rd share among husband and two sons of late Smt. Mohan Kanwar. Now since husband Narayan Singh Panwar- defendant No.1- respondent No.2 herein, in his Will dated 25.11.2003 (Exhibit-22) has desired to give his 1/3 rd share in the jewellery, to his three daughters, who is beneficiary of other 1/3 rd share of defendant No.1 has been given to plaintiff respondent No.1 under the same Will as much as the plaintiff, is agreeable to honor the Will of his father-defendant No.1, this Court leave this open at the discretion of respondent No.1-plaintiff, to give 1/ 3 rd share of his father in the jewellery to three daughters of defendant No.1 or to keep with him. Since three daughters of defendant No.1, respondent No.3, 4 and 5 herein, have clearly denied before this Court through their counsel, to take 1/ 3 rd share of their father in the jewellery, rather has expressed no objection to give this 1/ 3 rd share of their father in jewellery to plaintiff, hence merely on the objection of appellant defendant no.2 impugned final order does not warrant any correction/ modification. 29. For such reasons, this Court does not find it necessary, just and proper to interfere in the final order dated 03.11.2023 and in view of the above discussion, it is not required at all to further amend the preliminary decree of partition dated 23.10.2001 in any other manner than the way same has been amended in the final order dated 03.11.2023 by the trial Court. 30. As a final result, the present first appeal fails and is hereby dismissed. Parties shall bear their own costs. 31. Decree be framed accordingly. 32. Record of the trial Court be sent back forthwith. 33. Stay application and other pending application(s), if any, stand disposed of.