Allahabad High Court
Dharmendra Kumar Verma vs State Of U.P Thru Registrar Lko And ... on 7 April, 2022
Bench: Shree Prakash Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 17
Case :- WRIT - C No. - 7096 of 2018
Petitioner :- Dharmendra Kumar Verma
Respondent :- State Of U.P Thru Registrar Lko And Ors
Counsel for Petitioner :- Gyan Singh
Counsel for Respondent :- C.S.C,Shesh Mani
Hon'ble Shree Prakash Singh,J.
Heard learned counsel appearing for the petitioner, learned counsel appearing for the respondents and perused the record.
The instant writ petition has been filed against the order dated 19.2.2018 passed by the opposite party no. 2 by which the objection filed by the petitioner on 08.11.2017 in Appeal No. 109/2013-2014 (Draupadi Devi Versus Rajjo Devi) filed under Section 72/73 of Registration Act, 1908 preferred by the opposite party no. 3 has been rejected.
Learned counsel appearing for the petitioner submits that grand mother of the petitioner namely Rajjo Devi, the widow of Late Nankoo was issueless and old illiterate lady and had executed a will in favour of the present petitioner. He submits that in fact the opposite party no. 3 fraudulently prepared the sale deed dated 30.12.2017 for the land of the petitioner in which she was shown as a seller. The said sale deed was presented before the Sub-Registrar, Lalganj, Pratapgarh for registration of the same but since the grand mother of the petitioner was not present before the Registrar on 16.12.2013, the same was not registered. He submits that in fact the Registrar vide order dated 15.4.2014 has denied to register the alleged document as after the presentation of the four months have lapsed and as such he rejected the request of the respondent no. 3. Against the aforesaid order, the respondent no. 3 preferred an appeal before the District Registrar/Additional District Magistrate, Pratapgarh for arraying the grand-mother of the petitioner as a party. He submits that during the course of hearing, the grand mother of the petitioner died and as such, he moved an application for substitution on the place of grand mother as a registered will was executed for the property in question in his favour by the grand mother. He submits that the aforesaid application was rejected vide order dated 19.2.2018 by the District Registrar/Additional District Magistrate, Pratapgarh. He also added that a civil suit has been filed in respect with the aforesaid property and in which the petitioner was substituted as a party. He further added that in fact the interest of the petitioner is apparent in the aforesaid land as a will has been executed by the grand mother in his favour and there is a dispute with regard to the aforesaid land as such he is an essential party to be heard.
In support of his submission, learned counsel appearing for the petitioner has also placed reliance of the case of Mahendra Kumar v. Lalchand reported in 2001 (92) R.D. 268. Paragraph 6 of the aforesaid judgment is extracted as follows :
"Undisputedly, the appellant is a legal heir of his mother Rambhabai. Therefore, his right to sue survives and appellant was entitled to be substituted as legal representative of deceased Rambhabai. However, the question would be, whether Rambhabai has executed Will dated 20th August, 1980, in favour of Respondent No.2, Shrikrishna, and if so, by not joining him whether the appeal would abate? Respondent No.2 has not obtained probate, hence considering the procedure prescribed under the above-quoted Order XXII Rule 5, there is no question of abatement of appeal. It was for the respondent No.2 Shrikrishna Chourasia, who claims that Will has been executed by the deceased Rambhabai in his favour to file proper application to be joined as party respondent by contending that he is legal representative as the estate has devolved upon him on the basis of the Will. On such application being filed, the Court was required to determine it under Order XXII Rule 5. This legal provision was completely overlooked by the High Court and on this ground the impugned judgment and order is not sustainable."
He submits that on the aforesaid ground, he is entitled to be substituted in the aforesaid proceeding pending before theDistrict Registrar/Additional District Magistrate, Pratapgarh.
Countering the aforesaid, learned counsel appearing for the respondents submits that in fact the petitioner is not entitled to be substituted in the aforesaid appeal as he is neither having any possession over the land nor his name has been mutated in the revenue record on the basis of the aforesaid will.
Having heard the learned counsel for the parties and after perusal of record, I find that the fact remains that a registered will deed was executed in favour of the present petitioner by his grand mother and that too has been denied by the respondents. Further there is an appeal pending with regard to the same property of the grand mother of the petitioner wherein the grand mother has already executed will deed in favour of the present petitioner. Further, a suit is also pending before the Civil Court in which substitution application of the present petitioner has also been allowed.
Considering the aforesaid facts and circumstances and after perusal of record, the order dated 19.2.2018 is hereby quashed. The matter is remanded back to the District Registrar/Additional District Magistrate, Pratapgarh to consider the substitution application of the petitioner afresh, in the light of aforesaid observations made by this Court, within a period of one month from the date of certified copy of this order produced by the petitioner before him.
The Writ petition is disposed of accordingly.
Order Date :- 7.4.2022
SA
