Amar Bahadur And Anr. vs Ram Raj And Ors.
2017 Latest Caselaw 7638 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Judgment reserved on: 12.10.2017
 
  Judgment delivered on: 05.12.2017
 
Court No. - 8
 

 
Case :- MISC. SINGLE No. - 21291 of 2017
 

 
Petitioner :- Amar Bahadur And Anr.
 
Respondent :- Ram Raj And Ors.
 
Counsel for Petitioner :- Pawan Kumar Mishra
 
Counsel for Respondent :- Mahendra Kumar Sharma,Dr R S Pande
 

 
Hon'ble Rajan Roy,J.

Heard Shri Pawan Kumar Mishra, learned counsel for the petitioners and Dr. Ram Surat Pande, learned counsel for the opposite parties.

As there is not much of a factual dispute, therefore, there is no necessity to call for any counter affidavit in the matter.

This is a petition under Article 227 of the Constitution of India challenging an order dated 26.07.2017 passed by the District Judge, Shravasti in Civil Revision No. 2 of 2015 setting-aside the order of the trial Court dated 23.01.2015 allowing the application of the petitioners under Order I Rule 10 C.P.C. for being impleaded in the suit before the trial Court under Section 77 of the Registration Act, 1908 (For short ''the Act, 1908).

The facts of the case in brief are that one Chhamela @ Ratna wife of Krishana is said to have executed a Will dated 09.03.2009 in favour of the private opposite parties herein, but, the said Will could not be got registered in the Office of the Sub-registrar on the said date on account of closure of the office. The testator died on 21.04.2009. Thereafter, the said Will was presented in the office of the Sub-registrar under Section 40 of the Act, 1908, but, the Sub-registrar vide his order dated 04.08.2009 refused to register the same expressing doubts about the execution of the Will by the testator for various reasons mentioned in his order. The petitioners herein have been heard by the Sub-registrar in the said proceedings. Thereafter, the private opposite parties filed an appeal under Section 72 of the Act, 1908 against such rejection, which was also rejected holding that the entire sequence of events made the alleged execution of the Will by the testator suspicious and doubtful, as, the testator had sufficient time to get the said Will registered from 09.03.2009 till her death on 21.04.2009 but did not do so and also for the other reasons mentioned in the appellate order. The petitioners herein were also heard before the Appellate Authority and in fact were parties before him in Appeal No. 01/01.

Without going into the issue as to whether such appeal was maintainable or not, the fact of the matter is that the private opposite parties thereafter filed a suit before the Civil Judge (Senior Division), Shravasti bearing O.S. No. 253 of 2013 under Section 77 of the Act, 1908 for issuance of a decree for registration of the Will in question without impleading the petitioners herein as defendants in the said suit. In these circumstances, the petitioners who are the real sons of the testator and would have inherited the property which is the subject matter of the Will in question, but for the alleged bequest, moved an application under Order I Rule 10 C.P.C. before the Civil Court in the aforesaid suit seeking impleadment which was allowed vide order dated 23.01.2015 on the ground that they were the real sons of the testator and in the event of registration of the Will their rights to succeed in respect of the property in question would certainly be affected, therefore, they were necessary parties before it. Being aggrieved the private opposite parties herein filed a revision No. 02 of 2015 which has been allowed by the impugned judgment dated 26.07.2017 on the ground that the proceedings under Section 77 were only for registration of a Will, the scope of which was only to see as to whether the Sub-registrar and the District Registrar had erred in refusing to register the Will or not. The said proceedings would not return a finding on the property of the testator nor the rights in respect thereof. Even if, the Will was registered, a third party such as the petitioners could still challenge the said Will, therefore, they were not necessary parties in these proceedings.

Shri R.S. Pande, learned counsel for the opposite parties no. 1 and 2 supported the order of the revisional Court by saying that mere registration of the Will does not prejudice the petitioners.

On the other hand the learned counsel for the petitioners submitted that they being the real sons of the testator were entitled to succeed to the property which had been allegedly bequeathed, whereas, no such Will had been executed by the testator, therefore, they were necessary parties, as, their rights would be affected. He also submitted that in fact the Suit itself was not maintainable under Section 77 of the Act, 1908 in view of the Full Bench decision reported in AIR 1959 Andhra Pradesh 626 (V 46 C 179) Full Bench; Padala Satyanarayana Murthy Vs. Padala Gangamma and Ors.

As regards the contention that the Suit itself is not maintainable, with respect, this Court has carefully gone through the judgment of the Full Bench of the Andhra Pradesh High Court and it is of the view that the petitioners are merely picking out a sentence here and a sentence there from certain paragraphs of the said judgment, out of context, to say that suit is not maintainable, whereas, the judgment, when read as a whole, what comes out is that, the question before the Full Bench was whether merely because a Suit under Section 77 of the Act, 1908 had not been filed by the propounders of the Will for its registration, a Suit by them, before a Civil Court, asserting their rights. was barred? It is in this context that the Full Bench has considered a number of decisions of various High Courts all of which turned on this very issue and it is in this context that an opinion has been expressed that merely because a suit under Section 77 had not been filed for registration of the Will, a Suit before the Civil Court asserting the rights based thereon was not barred, as, the registration of a Will was not compulsory under Section 17 of the Act, 1908. In paragraph 21 of the said judgment the Full Bench has observed "Section 77 can have no application to Wills." It is this line which is being read out of context by the petitioners, as if, the law had been laid down that after refusal of registration of a Will, a suit was not maintainable under Section 77 of the Act, 1908. Likewise the petitioners have picked out one sentence from paragraph 24 of the said judgment wherein the Full Bench has observed "thus, section 77 applies to instruments inter vivos only and considerations that pertain to such documents are not pertinent to wills." This again has to be read and understood in the context of the issue before the Full Bench of the Andhra Pradesh High Court. What the judgment says is that it is not mandatory to resort to a suit under Section 77 for registration of a will before filing a suit for asserting any right based on such will if he can rely upon it without registration. This is the ratio of the judgment. Para 21 and 24 should be read as a whole along with other parts of the full judgment. It is fruitful to refer to paragraphs 1, 3, 4, 6, 7, 16, 18 and 20 of the said judgment along with paragraphs 21, 22, 23 and 24 thereof to understand the issue and the ratio of the said judgment. It is trite that a ratio decendi of a judgment is to be understood after keeping in mind the issue involved, the discussion made and the conclusions arrived at and not by reading some observation out of context. The Full Bench's decision of the Andhra Pradesh High Court does not lay down any such proposition that if the Registrar refuses to register a Will, a suit under Section 77 of the Act, 1908 is not maintainable as registration of a will is optional. In fact, there is nothing to this effect in the provisions of Act, 1908, especially Section 77, which categorically states that where the Registrar refuses to order the document to be registered under Section 72 or Section 76 any person claiming under such document, or his representative, assignee or agent, may, within thirty days after the making of the order of refusal, institute in the Civil Court, within the local limits of whose original jurisdiction is situate the office in which the document is sought to be registered, a suit for a decree directing the document to be registered in such office if it be duly presented for registration within thirty days after the passing of such decree. The term document used therein includes will and there is nothing in the said Act to indicate that it excludes wills. Of course registration of a will under the Act, 1908 is optional, but, this is an option to be exercised by the testator or executor or propounder/ beneficiary of the will as the case may be and not by the Registrar. If a will is submitted for registration in terms of the said Act the Registrar has to register it unless he decides to refuse its registration for valid reasons permissible under the Act, 1908, but, he can not refuse to register on the ground that registration of a will is optional, therefore, the contention of the petitioners in this regard is absolutely misconceived. Moreover, in the present case the property in question is in the nature of an agricultural holding, the registration of which is compulsory under Section 169 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 as amended from time to time. A suit would definitely be maintainable under Section 77 of the Act, 1908 if the Registrar refuses to register such a will, as, in the absence of registration, the will would not be admissible in evidence in view of Section 49 of the Act, 1908. This is not to say that the Registrar can not refuse to register the will for valid reasons nor that the suit under Section 77 can not be dismissed on justifiable grounds.

In view of the above, the reliance placed upon a decision of a Single Judge Bench of this Court reported in 2009 (106) RD 318; Rama Pati Tiwari Vs. District Registrar, Allahabad and Ors. is also of no help to the petitioners as far as the plea of non maintainability of the suit of the private opposite parties is concerned. The only reason this Court has considered this plea is the insistence of the learned counsel for the petitioners that the suit was not maintainable which required a clarification of the law on the subject.

As regards the question as to whether the petitioners are necessary parties in the suit of the private opposite parties, there is a distinction between proceedings under Section 40/41 of the Act, 1908 which are not judicial proceedings so to say and the proceedings under Section 77 of the Act, 1908 which are proceedings before a judicial/ Civil Court for issuance of a decree under the Code of Civil Procedure, therefore, while the findings under Section 40/41 would not have any adverse bearing on a suit being filed by the petitioners herein challenging the validity of the will, any such finding recorded by the civil Court under Section 77 of the Act, 1908, which could include findings pertaining to the execution of the will itself as this is one of the parameters to be seen by the Sub-registrar under Section 41 and by the Appellate Authority under Section 72, therefore, it would also be an issue which would fall for consideration by the Civil Court under Section 77 of the Act, 1908 before issuing a decree for registration of the will, the petitioners herein, who admittedly are sons of the testator and would otherwise succeed to his estate but for the alleged will, are certainly entitled to assert in the said suit that the will was never executed (Section 41 read with 35(3(c) of the Act, 1908) and that it was a fraudulent act as otherwise it would encourage unscrupulous beneficiaries and alleged propounders of a will to set up one witness and establish the execution of a will, without any contest. Once any finding is recorded even under Section 77 of the Act, 1908 as regards the execution of the will, then, it could have a bearing on the challenge to such will by the petitioners by a separate suit before the Civil Court which could include a challenge to its very execution and a piquant situation may arise to their prejudice, therefore, this Court is of the view that the trial Court was right in allowing the application of the petitioners under Order 1 Rule 10, whereas, the revisional Court has erred in this regard. Even considering the nature of the suit under Section 77 of the Act, 1908 any finding therein which obviously would be after adducing of evidence on the execution of the will, may create complications, therefore, in the facts of the case the petitioners are necessary and proper parties in the suit as has also been held by the Single Judge Bench in Rama Pati Tiwari's case in paragraph 18 thereof, which is as under:-

"18. In a civil suit of any nature there has to be a contesting party. In the event it is held that the appellant has no right to oppose a registration of a ''Will' in a suit under Section 77, if at all it is maintainable, it would mean that the suit would go uncontested as naturally the authorities enjoined upon to register a document have no interest in the subject matter and would not therefore, likely to put up any resistance thus, allowing the suit to be decreed virtually ex-parte. In other words, it would mean that any suit filed under section 77 of the Act for a decree for getting a ''Will' registered would in all probabilities would be decreed in the absence of any opposition. This cannot be the intention of the legislature therefore, the dictum of law as laid down by the Division Bench in Km. Sushila Saxena (supra) has to be confined to proceedings under section 40/41 of the Act and not where the matter has been agitated in a suit."

Reliance placed by Dr. R.S. Pande, learned counsel for opposite parties no. 1 and 2 upon a Division Bench's judgment of this Court reported in 1998 RD (Suppl.) 438; Km. Sushila Saxena Vs. Sub-registrar, Shahjahanpur and Ors. is of no help to him as the observation contained therein are in the context of the proceedings under Section 41/44 which are not judicial proceedings nor akin to proceedings before Civil Court under Section 77 of the Act, 1908.

In view of the above, as the order of the revisional Court suffers from apparent irregularity and illegality, it is quashed. Consequences shall follow accordingly as per law.

The petition is allowed in the aforesaid terms.

 
Order Date :- 05.12.2017
 
R.K.P.					         (Rajan Roy,J.)