Sarita Devi And Ors vs Nirmala Devi And Ors

Instant petition filed under Article 227 of the Constitution of India lays challenge to order dated 12.4.2019 (Annexure P-3), passed by the learned

Civil Judge, Court No.3, Ghumarwin, District Bilaspur, H.P. in CMA No. 421-6/2018 in CS No. 377-1/2017/07, whereby an application under Order 8

Rule 1 A (3) CPC, having been filed by the non-applicants-defendants (in short “the defendantsâ€) for placing on record will dated 2.1.1998

alongwith copy of complaint, came to be allowed.

Briefly stated facts, as emerge from the record are that petitioner-plaintiff filed suit for decree of declaration qua their joint ownership and

possession over the land in dispute, more specifically, by assailing will dated 2.1.1998, registered in the office of Sub-Registrar, Ghumarwin in favour

of respondent/defendant No.1. By way of aforesaid suit, plaintiffs claimed that will dated 2.1.1998 is wrong, illegal and is result of fraud and as such,

second mutation attested on the basis of the same, is also wrong. During pendency of aforesaid suit, an application under Order 8 Rule 1 A (3) CPC

came to be filed on behalf of defendant No.6 i.e. respondent No.2 herein, seeking therein permission to produce on record will dated 2.1.1998

alongwtih copy of complaint. Defendant No.6 averred in the application that testator Brij Lal had executed a legal and valid will on 2.1.1998 and same

has been forged by the plaintiffs in the main suit. Applicants averred that original will was with defendant No.5 namely Nirmala Devi, who

subsequently handed over the same to halqua patwari for entering mutation. Mutation Nos. 1564 and 433 dated 3.5.2007 were attested on 3.5.2007 on

the basis of aforesaid will, but after attestation of mutation, such will was not traceable despite best efforts put in by the applicants. Applicants further

averred that Nirmala Devi remained under impression that same is taken by other beneficiary namely defendant No.2 (Dharmender Kumar) and as

such, same could not be submitted with documents filed alongwith written statement. Applicant/defendant No.6 further averred that subsequently,

defendant No.5 with view to prove the will in question by way of secondary evidence moved an application under Sections 65 & 66 of the Indian

Evidence Act, but now since original will has been found by the applicants, they be permitted to place the same on record. It has been specifically

stated in the application that since defendant No.5 is an old and illiterate lady, will in question could not be produced despite due diligence at the time of

filing written statement.

Aforesaid application came to be contested by the non-applicants/plaintiffs, who by way of reply (Annexure P-2), contended that application

deserves outright rejection being belated. Non-applicants/plaintiffs further claimed that entire case of the plaintiffs stands admitted by the applicant

during her examination as DW1, wherein she stated that she does not know about the custody of the original will. Plaintiffs further averred that since

applicant earlier filed an application claiming that alleged will is in custody of defendant No.2, present application filed on altogether different

assertions cannot be accepted at this stage. Plaintiffs further averred in the reply that despite availing sufficient opportunities, applicants/defendants

No. 5 and 6 have not brought on record such original will. They further averred that defendant No. 6 has categorically stated that original will is with

defendant No.2 Dharmender Kumar, whereas altogether contradictory pleadings have been taken in the application and as such, same may be

dismissed.

Plaintiffs averred in the reply to the application that there exists no due diligence on the part of the applicant in placing on record the document in

question at the belated stage and as such, prayer made at this stage, cannot be accepted but learned court on the basis of pleadings adduced on record

by the respective parties allowed the application subject to payment of costs of Rs. 1,000/-. In the aforesaid backdrop, plaintiffs have approached this

Court in the instant proceedings with a prayer to set-aside the impugned order.

Having heard learned counsel for the parties and perused material adduced on record by the respective parties vis-Ã -vis reasoning assigned in the

impugned order passed by the learned court below, this Court finds no illegality and infirmity in the same and as such, no interference is called for. No

doubt, it clearly emerges from the record that defendant No.5 Nirmala Devi in her written statement took a stand that mutation Nos. 1564 and 433

dated 3.5.2007 were attested on 3.5.2007, on the basis of will dated 2.1.1998 executed in her favour by testator Brij Lal and after attestation of such

mutation, will was not traceable despite best efforts made by the applicant. She has also stated that she remained under impression that same might be

taken by other beneficiary namely defendant No. 2 Dharminder Singh in the suit. But if such version of defendant No.5 given in the written statement

is perused juxtaposing averments contained in the application filed under Order 8 Rule 1 A (3) CPC, it cannot be said that explanation rendered on

record by the applicants/defendants for not placing on record will in question alongwith written statement is not plausible. It has been specifically

averred in the application that since will in question was not traceable after attestation of mutation on 3.5.2007, defendant No.5 remained under the

impression that same must be lying with other beneficially namely Dharminder Kumar (defendant No.2). Since document intended to be placed on

record was presumed to be in possession of defendant No.2, defendant No.5 moved an application under Sections 65 and 66 of the Indian Evidence

Act, for proving the same by way of secondary evidence. However, during the pendency of the suit, defendant No.5 could lay her hand to will

2.1.1998 executed by testator Brij Lal in her favour and accordingly, application under Order 8 Rule 1 A (3) CPC came to be filed, seeking therein

permission of the Court to place the same on record. It has been specifically averred in the application that since defendant No. 5 is an old and

illiterate lady, she despite due diligence could not place the copy of will dated 2.1.1998 with the written statement.

Mr. Vijay K. Bhatia, learned counsel, strenuously argued that applicant in her examination in chief admitted before the court that she does not know

the custody of such will, but if impugned order is read in its entirety, it clearly reveals that defendant No. 5 in her cross-examination specifically stated

that impugned will was handed over by her to patwari for attestation of mutation, but thereafter, she feigned ignorance about its whereabouts.

Certainly, if aforesaid version of her made in cross-examination is read, it can be safely concluded that there is nothing in her testimony, which can

give rise to any sort of inference that she denied having knowledge of custody of the will. Version put forth by DW5 in her cross-examination is

strictly in consonance with the averments contained in the application.

Leaving everything aside, by way of suit, plaintiffs have sought declaration qua their joint ownership and possession of the suit land by assailing will

dated 2.1.1998 registered in the office of Sub-Registrar, Ghumarwin, averring therein that will in question is wrong, illegal and is result of fraud,

meaning thereby, document in question is an important document for adjudication of the controversy inter-se parties. Whether will dated 2.1.1998

intended to be placed on record by the applicants is genuine or not is a question needs to be determined by the court below on the basis of totality of

evidence collected on record by the respective parties, but if such will is allowed to be produced on record at this stage, no prejudice whatsoever

would be caused to the plaintiffs because such will is required to be proved by the applicants/defendant Nos. 5 and 6 by leading cogent and convincing

evidence on record. Needless to say, non-applicant/plaintiff shall have opportunity to cross-examination plaintiff witnesses. Leaving everything aside,

production of this document i.e. will dated 2.1.1998 will help the court below in adjudicating the controversy effectively inter -se parties, especially,

when the very genuineness and correctness of will dated 2.1.1998 is in question before the court below. Moreover, on account to delay, if any, in

moving the application, applicants/defendants have been already imposed costs of Rs.1000/- by the court below.

Consequently, in view of the detailed discussion made herein above, this Court sees no reason to differ with the well reasoned order passed by the

learned court below which otherwise appears to be based upon the proper appreciation of material adduced on record and the same is accordingly

upheld. Accordingly, the petition is dismissed being devoid of any merits.