Kanhaiya Singh vs Jamaluddin And Others

Ravindra Maithani, J

The challenge in this petition is made to an order dated 12.02.2025, passed in Civil Suit No.81 of 2014, Jamaluddin Vs. Nafees Ahmad and others, by the court of Civil Judge (Jr. Div.), Kotdwar, District Pauri Garhwal, by which, an application filed by the petitioner for summoning Sub Registrar from the office of the Sub Registrar, Kotdwar to prove the will-in-dispute dated 05.04.1990 has been rejected.

Heard learned counsel for the parties and perused the record.

The suit was filed by the respondent no.1 against the petitioner and other respondents for permanent injunction and cancellation of will dated 05.04.1990 allegedly executed in favour of the petitioner by his father. The will was challenged on the ground that it was forged, void and was got executed by the petitioner by impersonating some person as his father. In the suit at the stage of defendant/petitioner’s evidence, an application under Section 139-C was filed by the petitioner, which is as follows:-

“In the above matter, it is respectfully submitted on behalf of defendant that matter is fixed for remaining defence evidence. The defendant wish to produce Sub-registrar / appropriate authority from the office of Sub-registrar, Kotdwara, as defence witnesses, to prove the subjected ‘will’ dt. 05-4-1990 executed by Lungi Singh Ji in favour of his son Kannayya Lal and power of attorney dt. 06-04-1990, executed by Lungi Singh Ji in favour of Ruknuddin S/o Aminuddin.

It is therefore, prayed that in the interest of justice, defendant may kindly be allowed and permitted to summon Sub-registrar / appropriate authority from the office of Sub-registrar, Kotdwara, who may bring relevant records for relevant period / date, as defence witnesses.”

The respondent no.1 filed objections to it. It has been the case of the respondent no.1 that the Sub-Registrar is not the eye witness of the disputed will.

Learned Senior Counsel appearing for the petitioner would submit that the original will is not in the possession of the petitioner; it has been registered. It is submitted that earlier on 03.03.1990, the deceased Lungi Singh had executed a will in favour of respondent no.1, but subsequently, by the will-in-dispute dated 05.04.1990, he revoked the earlier will and executed the will in favour of the petitioner, who happened to be his son. It is argued that the attesting witnesses are not available now. It is submitted that the will-in-dispute records that while registering it, Rule 230 of the Registration Manual Uttar Pradesh has been complied with and in the will that was executed in favour of the respondent no.1, an endorsement is made that pursuant to the subsequent will, the will executed in favour of the respondent no.1 gets affected. Learned Senior Counsel would submit that the endorsement needs to be proved.

Learned counsel for the respondent no.1 would submit that it is delaying tactic of the petitioner and the writ petition, as such is not maintainable.

The original will in the instant case is not produced which the petitioner claims to have been executed in his favour by his father. What is being argued is that the original will had never been given to the petitioner by the Sub Registrar office. The certified copies of both the wills are on record. Any endorsement made on it need not be proved separately. The authenticity and the truthfulness of the averments need to be proved. For that matter, it is not the case that this endorsement was made by a particular person who is proposed to be summoned. It is a document prepared by a public servant in discharge of his official duties.

As stated, what is stated in these certified copies may be read, but they are true, it is required to be proved. What is the allegation against the petitioner is that will dated 05.04.1990 allegedly executed in his favour by his father is forged and have been executed by him by impersonation. That is required to be proved.

The court below has rightly discussed the rival contention and arrived at a conclusion that there is no need to summon the Sub-Registrar. In fact, summoning the Sub-Registrar could not assist the court to arrive at a just decision of the case. What the Sub-Registrar, who is present today, may only say is that an endorsement is made on the will. That can otherwise also be read. Therefore, this Court does not see any reason to interfere in the matter. Accordingly, the writ petition deserves to be dismissed at the stage of admission itself.

The petition is dismissed in limine.