Court No. - 53
Case :- SECOND APPEAL No. - 952 of 2008 Appellant :- Ashok Kumar And Others Respondent :- Smt. Laung Shree Counsel for Appellant :- A.B.L. Verma,Rajendra Prasad Shukla,Satyendra Pratap Singh Counsel for Respondent :- ,Akhilesh Singh,Manoj Kumar Yadav,Pradeep Kumar Singh
Hon'ble Vivek Agarwal,J.
Heard Sri R.P. Shukla, learned counsel for the appellants and learned counsel for the respondents.
This Second Appeal has been filed by the appellants-defendants being aggrieved by the judgment passed by Additional District Judge, Court No.3, Farrukhabad in regular Civil Appeal No.69 of 2007 on 23.09.2008 setting aside the judgment and decree passed by the Trial Court on 19.04.2007 whereby suit filed by the plaintiff challenging the validity of the Will on the basis of which admittedly appellants are claiming their rights over the suit property was dismissed.
It is the contention of the appellants, who were defendants before the Trial Court that plaintiff Smt. Laung Shree, is wife of Sri Udai Chandra. Udai Chandra entered is their maternal uncle. Sri Udai Chandra had executed an unregistered will on 11.06.1993 bequeathing his property after life time of his wife in favour of the appellants.
After death of Udai Chandra on 12.06.1993, Smt. Laung Shree got her name mutated in the revenue records but it was subject to several litigations, when a suit came to be filed by Smt. Laung Shree challenging the validity of such Will.
Learned Trial Court recorded a finding in regard to Issue no.2 that Will dated 11.06.1993 was neither forged nor ineffective on the basis of the evidence given by D.W.-2, Sri Ramesh Chandra Dixit, who admitted that he had typed such Will.
It is submitted that once a person who had typed the will was examined before the Trial Court, then the 1st Appellate Court erred in reversing the findings recorded by the Trial Court. Order of reversal is contrary to the provisions contained in the Evidence Act.
To appreciate the arguments of the learned counsel for the appellant, it will be proper to refer to them.
In fact, as per the provisions contained in Section 68 of the Indian Evidence Act, proof of execution of document required by law to be attested can be held to be a valid proof, until and unless, one attesting witness has been called for the purpose of its execution, if there being an attesting witness alive and subject to the process of the Court and capable of giving evidence.
There is a proviso below Section 68 of the Evidence Act, which specifically provides that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied.
Thus, it is evident that to prove a Will whether being a registered will or otherwise, examination of one of the attesting witness is mandatory.
Learned counsel for the appellant fairly admits that attesting witness to the Will was not examined. He submits that one of the attesting witness was dead and another attesting witness could not be examined before the Trial Court, therefore, in absence of attesting witness being examined to prove the Will, Trial Court erred in deciding the Issue no.2 against the plaintiff.
It is also an admitted fact that suit was filed by the plaintiff on 24.12.1997 claiming that she got knowledge of the Will on 01.11.1996. However, Trial Court has discussed a fact that plaintiff, Smt. Laung Shree has admitted in her cross examination that she had filed a case before the Court at Kayamganj where Umesh and others had raised objection and had threatened her on the basis of the Will. Accordingly, the Trial Court held that suit having been filed after more than three years of expiry of the date of knowledge of the will, was barred by the provisions contained in Article 56 of the Limitation Act.
Learned counsel for the appellant points out that he had filed application under Order-41 Rule-27 enclosing along with that a copy of the proceedings before the Collector, Farrukhabad wherein a revision was filed by the plaintiff-Smt. Laung Shree on 06.09.1993 seeking quashment of the order dated 08.07.1993 in which, she has taken a ground that opposite party had prepared a forged Will (unregistered) dated 11.06.1993 but this document as was filed along with the application under Order 41 Rule-27 has not been considered by the 1st Appellate Court, though, a certified copy is available on record.
Appellant has filed copy of the application under Order 41 Rule-27 as was filed before the Court of Additional District Judge, Court No.3, Farrukhabad in Civil Appeal No.69 of 2007 as Annexure-18 and this application is dated 17.03.2008 whereas the judgment by the Additional District Judge has been passed on 23.09.2008. Additional District Judge has not adverted to such application under Order-41 Rule-27 C.P.C. too and has passed the judgment and decree reversing the findings of the Trial Court.
In view of documentary evidence available on record, Smt. Laung Shree had filed a revision before the Collector of the district challenging the orders cancelling mutation made in her favour and in such revision, which is available on record as Annexure-4 dated 06.09.1993, there is a specific mention of defendants who are appellants before this Court claiming their rights on the basis of a forged and unregistered Will, how suit was within the period of limitation as was admittedly filed on 24.12.1997 is an issue, not adverted too by the 1st Appellate Court.
In view of such facts, it will be in the interest of justice that matter is remanded back to the Additional District Judge, Court No.3, Farrukhabad to advert to the application under Order-41 Rule 27 as was filed by the defendants to take a decision on it and decide the appeal afresh on the basis of such documents, if, they are admitted in evidence by the 1st Appellate Court in its discretion and as per law.
Accordingly, the impugned judgment and decree passed by the 1st Appellate Court is set aside.
Parties as are represented before this Court are directed to appear before the Court of Additional District Judge, Court No.3, Farrukhabad on 22nd January, 2020 for which, no separate notice will be required where the 1st Appellate Court will first advert to the merits of the maintainability of an application under Order-41 Rule-27 and, thereafter, shall proceed to decide the appeal afresh and, if possible, within a period of six months starting from 22nd January, 2020.
It is made clear that none of the discussion made above will be construed as opinion of this Court. This Court has not expressed any opinion on the merits of the case.
Let record of the Trial Court and the 1st Appellate Court be sent back forthwith so to reach such Court on or before 19th January, 2020.
With the aforesaid directions, Appeal is disposed off.
Order Date :- 19.12.2019 Ashutosh