Sri Pheku (Deceased) And 16 Others vs Smt. Rumali (Deceased) And 8 ...
2023 Latest Caselaw 21911 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:164407
 
Court No. - 1
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 4563 of 2023
 

 
Petitioner :- Sri Pheku (Deceased) And 16 Others
 
Respondent :- Smt. Rumali (Deceased) And 8 Others
 
Counsel for Petitioner :- Harish Chandra Singh,Anand Pal Singh
 
Counsel for Respondent :- Sachida Nand Tripathi
 

 
Hon'ble Jayant Banerji,J.

1. Supplementary affidavit filed today is taken on record.

2. Heard Shri H.C. Singh, learned counsel for the petitioners and Shri Sachida Nand Tripathi, learned counsel for the respondent No.3.

3. This petition has been filed seeking the following reliefs:

"i) it is therefore most respectfully prayed that this Hon'ble Court may graciously pleased to set-aside the order dated 27.03.2023 passed by the Additional District Judge, Court No.1, Gorakhpur in Review Petition No.17 of 2001 (Smt. Rumali and others Vs. Sri Pheku and others) in Civil Appeal No.28 of 1996 (Sri Pheku and others Vs. Smt. Rumali and others) (Annexure No.9 of the petition).

ii) It is therefore most respectfully prayed that this Hon'ble Court may graciously pleased to direct the Court below to entertain the application of test the thumb impression of witness Ganga Singh as well as Parmeshwar of the unregistered will of contesting defendants/respondents.

iii) it is therefore most respectfully prayed that this Hon'ble Court may graciously pleased to direct the defendants/respondents to not dispose the land with registered will in favour of the person during the pendency of Civil Appeal pending before the Court of Additional District Judge, Court No.1, Gorakhpur."

4. It is contended by the learned counsel for the petitioners that a suit was filed by the petitioners for declaration of an unregistered will deed dated 23.6.1974, as void, and a further relief of permanent injunction was also sought. It is contended that the thumb impression of the alleged testator was subject to scrutiny by the trial court pursuant to opinions of experts. The suit was partly decreed. Against the part of the suit that was dismissed, the plaintiff-petitioners filed an appeal bearing Civil Appeal No.28 of 1996 in which an Application Paper No. 39(Ga) was filed stating that alongwith the thumb impression of the alleged testator Parmeshwar, the thumb impression of the attesting witness Ganga Singh be also verified. It is stated that by an order dated 16.4.2001, the Application No.39(Ga) was allowed subject to payment of cost. Thereafter, it is stated that a review application was filed by the defendants which was allowed by means of the impugned order dated 27.3.2023. The contention is that the appellate court has misdirected itself in reviewing the order dated 16.4.2001 by means of the impugned order dated 27.3.2023.

5. Shri Sachida Nand Tripathi, learned counsel for respondent No.3, has vehemently opposed the petition stating that earlier an Application No.17(Ga) seeking to bring on record additional evidence, was filed, which was rejected by the appellate court. Thereafter, a second application for additional evidence was filed bearing Application Paper No.39(Ga), which has been correctly dismissed by the appellate court by means of the impugned order while reviewing its own order dated 16.4.2001.

6. A perusal of the record reveals that a suit for cancellation of a will deed dated 23.6.1974 was filed by the plaintiff-petitioners, in which a prayer was also sought for permanent injunction with regard to the suit property. A perusal of Annexure No. SA-1 to the first supplementary affidavit filed by the petitioner reveals that it is a copy of a judgment and order dated 13.12.1995 passed in two suits, one being the aforesaid suit No. 788 of 1981, and another being Suit No. 2132 of 1985 filed by the petitioner against Shobha and others for cancellation of sale deed and for declaration. The aforesaid suit No. 788 of 1981 was dismissed, and the aforesaid suit No. 2132 of 1985 was decreed. It appears that before the trial court, opinions of experts were filed with regard to the thumb impression of Parmeshwar appearing on the will deed dated 23.6.1974 and on another will deed dated 6.1.1975. It appears that the fingerprint experts PW-4 and PW-5 were examined by the trial court, following which it was found that no cause for cancellation of the will deed dated 23.6.1974 was proved, and the suit was dismissed. The aforesaid judgment and decree dated 13.12.1995 passed in original suit No. 788 of 1981 was challenged by the plaintiff-petitioners in civil appeal No.28 of 1996, which is pending and in which the impugned order has been passed.

7. It appears from perusal of the orders as well as from perusal of the supplementary affidavit that has been filed today by the learned counsel for the petitioner, that an application dated 21.3.1984 was filed on behalf of the plaintiff-petitioners with a prayer that the thumb impression appearing on the actual will dated 6.1.1975 be got verified from the admitted thumb impression of Parmeshwar. The said application dated 21.3.1984 [17(Ga)] was dismissed by an order of the appellate court dated 24.8.1999. The order of 24.8.1999 was subject to challenge in a Civil Miscellaneous Writ Petition No. 42556 of 1999, which writ petition was dismissed while observing that the facts sought to be agitated can be raised at the time of final arguments in the appeal.

8. Thereafter, another Application No. 39(Ga) dated 25.9.2000 was filed by the plaintiff-petitioners before the appellate court. A copy of this application has been enclosed as Annexure No. SA-1 to the second supplementary affidavit dated 27.7.2023. A perusal of this application reveals that it was filed with a prayer that the thumb impression of Parmeshwar (testator) appearing on the will dated 23.6.1974, as well as the thumb impression of the attesting witness, Ganga Singh, be compared to see whether both the thumb impressions were the same.

9. By the order dated 16.4.2001, the appellate court allowed the application No.39(Ga). The aforesaid order dated 16.4.2001 was challenged in a review petition filed by the defendant-respondents. By means of the impugned order dated 27.3.2023, the review application was allowed, and the order dated 16.4.2004 was reviewed by the appellate court. While allowing the review application, the appellate court observed that the High Court in Miscellaneous Writ Petition No. 42556 of 1999, had observed that the facts raised in the petition can be agitated at the time of final hearing, and final hearing of the appeal is yet to take place. It was further observed that even if it is assumed that on the said will deed the thumb impression of Parmeshwar does not appear, then definitely on the will deed dated 23.6.1974, the thumb impression would be of someone else, and if on that will, the thumb impression of Parmeshwar does not appear, then the will deed itself would become fraudulent and void.

10. The court noted that in respect of the aforesaid will deed allegedly executed by Parmeshwar, reports of experts were called for, who had been cross-examined. It was further noted that a similar application bearing paper No. 17(Ga) filed by the plaintiff-petitioners for getting the thumb impression of Parmeshwar verified was already dismissed by the court. The appellate court in the impugned order is correct in stating that in case, on the alleged will dated 23.6.1974, the thumb impression of Parmeshwar as the testator is not proved, the will deed itself would be rendered fraudulent and void.

11. The application No. 39(Ga) filed by the plaintiff-petitioners does not demonstrate that the plaintiff-petitioners had exercised due diligence in not producing the evidence, despite the fact that the will deed dated 23.6.1974 itself was challenged by the plaintiff-petitioners, and that will deed, as is the own case of the plaintiff-petitioners, the alleged thumb impressions were present. As such, the appellant cannot be said to be entitled to produce additional evidence at this stage.

12. Under the facts and circumstances of the case, no interference is called for in the order impugned dated 27.3.2023 passed by the appellate court, and this petition is, accordingly, dismissed.

13. It is further directed that since the aforesaid appeal is very old, having been filed in the year 1996, the appellate court is requested to expedite the disposal of the appeal without granting any unnecessary adjournment to either of the parties, and provided there is no legal impediment.

Order Date :- 16.8.2023

K.K.Tiwari

(Jayant Banerji, J.)