Allahabad High Court

Khubi Ram vs Bhoop Singh And 8 Others on 26 September, 2025





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:175344
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD 
 
FIRST APPEAL No. - 743 of 2024   
 
   Khubi Ram    
 
  .....Appellant(s)   
 
 Versus  
 
   Bhoop Singh And 8 Others    
 
  .....Respondent(s)       
 
   
 
  
 
Counsel for Appellant(s)   
 
:   
 
Prathamesh Upadhyay, Tarun Agrawal   
 
  
 
Counsel for Respondent(s)   
 
:   
 
Girja Shanker Mishra, Pratiksha Rai   
 
     
 
  
 
A.F.R. 
 
 
 
Court No. - 35
 
    
 
  
 
HON'BLE SANDEEP JAIN, J.

1. I have already heard Sri Tarun Agrawal learned counsel for the appellant and Ms. Pratiksha Rai learned counsel for the respondent on 19.09.2025. The case was fixed for today for exploring the possibility of compromise between the parties but the parties have failed to arrive at a compromise, as such, the matter is being disposed today, on merits.

2. The instant appeal under Section 96 CPC has been filed by the plaintiff against the exparte impugned judgment and decree dated 25.01.2024 in O.S. No.446 of 2020 (Khubi Ram Vs. Bhoop Singh & others), passed by the court of Additional District Judge, Court No.9, Ghaziabad, whereby the plaintiff's suit for the relief of declaration of being the owner of disputed property, on the basis of the registered Will dated 20.01.2011, has been dismissed on the ground that the Will has not been proved in accordance with law.

3. Factual matrix of the case is that the plaintiff filed O.S. No.446 of 2020, in the trial court against the defendants-respondents with the averments that the plaintiff and the defendants are the real brothers who are the successor of Ram Swaroop, who had purchased the disputed property house No.85-A, Nagar Nigam, No.27, a single storeyed house, constructed on area of 131.25 square yard consisting of two rooms, latrine, bathroom, tin shed, situated in Anand Vihar colony, village Nasarpur, Pargana Loni, Tehsil & District Ghaziabad, the boundaries of which have been mentioned at the end of the plaint, through sale deed dated 20.04.1977. The plaintiff submitted that due to his care and nursing, his father Ram Swaroop, who is also the father of the defendants, executed a registered Will dated 20.01.2011, in his favour, which was registered in book No.3, Zild No.471, at page Nos.269-280, serial No.26 in the office of the Sub Registrar, Ist, Ghaziabad. The Will was executed by Ram Swaroop willingly when he was in fit mental condition without any coercion and undue influence. The plaintiff further averred that this was the last Will of his father and the defendants were aware of that Will. After the execution of the Will, the plaintiff's father Ram Swaroop died on 16.12.2011 in Sarvodaya Hospital, Kavi Nagar, Ghaziabad and, as such, after the demise of his father, he became the owner of the disputed property on the basis of the above registered Will. The plaintiff averred that the intention of the defendants had become malafide who refused to accept his ownership on the basis of the above Will, as such, he had no other option, but to seek declaration of his ownership on the basis of the above Will. In this background, the plaintiff claimed the following relief:-

(i) By declaratory decree granted in favour of the plaintiff against the defendants, the plaintiff be declared the owner of the disputed property, which is house No.85-A, Nagar Nigam No.27, a single storeyed house, constructed in an area of 131.25 square yard, consisting of two rooms, latrine, bathroom, tin shed, situated in Anand Vihar colony, village Nasarpur, Pargana Loni, Tehsil & District Ghaziabad.

4. The trial court presumed sufficient service on the defendants vide order dated 13.09.2021 and when the defendants did not appear before the trial court, by order dated 26.10.2021, the trial court proceeded exparte against the defendants.

5. In the documentary evidence, the plaintiff submitted a certified copy of the alleged Will dated 20.01.2011, photo copy of his Aadhaar Card, photocopy of death certificate of his father Ram Swaroop. In oral evidence, the plaintiff filed his affidavit in evidence, in which he reiterated his plaint averments.

6. The trial court by impugned judgment and decree dated 25.01.2024, concluded that the burden was on the plaintiff to prove that a registered Will was executed on 20.01.2011, in his favour by his father Ram Swaroop, but the plaintiff failed to discharge that burden. The plaintiff did not comply with the provisions of Section 68 of the Evidence Act. The plaintiff neither examined any attesting witness of the Will nor proved it in accordance with law. The trial court concluded that since the plaintiff failed to prove the execution of the Will in his favour, as such, the plaintiff cannot be deemed to be the owner of the disputed property on the basis of the above Will. With this reasoning, the trial court dismissed the plaintiff's suit exparte. Aggrieved against which, the plaintiff is in appeal before this Court.

7. Learned counsel for the plaintiff-appellant submitted that the impugned judgment and decree of the trial court is perverse and is liable to be set aside. He further submitted that the suit was decided exparte against the defendants. The plaintiff filed a certified copy of the Will which was proved by the oral evidence of the plaintiff, as such, there was no requirement to comply with the provisions of Section 68 & 69 of the Evidence Act. He further submitted that the Will had not been challenged by the defendants, as such, it should have been relied by the trial court. Learned counsel for the appellant further submitted that the Will was registered as such, there was a presumption regarding its authenticity but the trial court has overlooked this and has committed illegality in rejecting the plaintiff's suit. With these submissions, it was prayed that the appeal be allowed and consequently the plaintiff's suit be decreed.

8. Learned counsel for the defendant-respondents submitted that there was no illegality in the impugned judgment of the trial court because the burden was on the plaintiff to prove the Will in accordance with law, in which the plaintiff utterly failed. She further submitted that prior to the execution of the Will, the father of the defendants had executed a sale deed in favour of the defendants, as such, no title has devolved on the plaintiff. She further submitted that the plaintiff has to prove its case on the basis of its pleadings and evidence submitted in the trial court, which the plaintiff failed to prove. With these submissions, it was prayed that the appeal has got no merit and is liable to be dismissed.

9. I have heard learned counsel for the parties and perused the record.

10. It is apparent that the plaintiff is claiming ownership of the disputed house on the basis of the registered Will dated 20.01.2011, alleged to be executed by his father Ram Swaroop in his favour. The plaintiff has not filed the original Will and has only filed its certified copy. The plaintiff has not furnished any reason as to why the original Will was not produced by him in the trial court. It is well settled that the plaintiff was bound to prove the original Will and if that was lost, destroyed or was not in his possession, only then the plaintiff could have filed the certified copy of the Will but that was not the case here. No foundation was laid by plaintiff for filing certified copy of the alleged Will, in secondary evidence. In view of this, the plaintiff could not have proved the certified copy of the alleged Will.

11. Section 68 and 69 of the Evidence Act reads as under:-

Section 68. Proof of execution of document required by law to be attested ?If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:

[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]

69. Proof where no attesting witness found.?If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the hand writing of that person.

12. The Apex Court in the case of Ramesh Chand(D) Through LRS. vs. Suresh Chand & Another 2025 SCC OnLine SC 1879 has held as under:-

"27. Considering the aforementioned cases, it is clear that in order to rely upon a Will, the same has to be proved in accordance with law. A Will has to be attested by two witnesses, and either of the two attesting witnesses have to be examined by the propounder of the will. In the present matter, we have carefully perused the Trial Court's judgment. There is not an iota of discussion about the validity of the Will as contemplated under Section 63 of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872 and yet, the validity of the Will has been upheld. This is contrary to law. Even the High Court, while evaluating the validity of the Will, has gone on a different tangent and has erroneously held that the requirement of examining the attesting witnesses springs into action only in cases of disputes between legal heirs. Such an observation is quite contrary to law, for Section 68 of the Evidence Act makes it mandatory to examine at least one of the attesting witnesses of the Will. Mere fact that the Will was registered will not grant validity to the document. Besides that, the will propounded by plaintiff is surrounded with suspicious circumstances, in as much as the alleged propounder of the Will, Lt. Sh. Kundan Lal, had four children, including the plaintiff and the defendant No. 1. There is not even a whisper of reasoning as to why the propounder of the Will choose to exclude other three children from the bequest, and whether any other properties or assets were given to them. It is highly unlikely that a father would grant his entire property to one of his children, at the cost of three others, without there being any evidence of estrangement between the father and the children. This suspicious circumstance surrounding the will has not been removed by the plaintiff either. Hence, for these cumulative reasons, the Will propounded by plaintiff though registered would not confer any valid title on the plaintiff either."

13. It is apparent that if a document is required by law to be attested then it shall not be used as evidence until one attesting witness has been examined before the Court for proving its execution if he is alive and capable of giving evidence. It is also evident that where no attesting witness can be found, then the propounder of the Will is bound to prove the handwriting of at least one attesting witness and the signature of the person executing the document.

14. In this case, there are two attesting witnesses of the alleged Will, namely Ishwar Dayal and Smt. Neema Singh, but the plaintiff has not examined any of them in the trial court in order to prove the execution of the Will. The plaintiff has averred in the trial court that attesting witness Ishwar Dayal has died and has also disclosed that the other attesting witnesses Smt. Neema Singh does not want to give evidence in support of the plaintiff in court since she is the wife of the defendant No.4 Satyapal Singh.

15. It is evident that one of the attesting witness Smt. Neema Singh is alive, but she has not being examined, or she is not willing to appear in the court, as such, the Will has not been proved in accordance with Section 68 of the Evidence Act. Since, one attesting witness of the alleged Will is alive, the provisions of Section 69 of the Evidence Act are not applicable in the instant case. As such, the alleged Will cannot be read in evidence and on it's basis, the plaintiff cannot be declared the owner of the disputed property.

16. It is apparent that the plaintiff and the defendants are the real brothers who are fighting for the property of their father Ram Swaroop. It is apparent that the plaintiff has failed to prove his ownership in the disputed property on the basis of the alleged Will dated 20.01.2011, as such, the trial court has not committed any illegality in rejecting the plaintiff's suit exparte by impugned judgment and decree dated 25.01.2024, warranting interference from this Court in exercise of its appellate jurisdiction. The appeal is devoid of merits and is liable to be dismissed.

17. Accordingly, the appeal is hereby dismissed.

18. The impugned judgment and decree of the trial court dated 25.01.2024 in O.S. No.446 of 2020 (Khubi Ram Vs. Bhoop Singh & others) is hereby affirmed.

19. However, in the facts and circumstances of the case, the parties shall bear their respective costs.

20. Office is directed to prepare the decree accordingly.

21. Office is directed to send back the original trial court record, forthwith.

(Sandeep Jain,J.)

September 26, 2025

Himanshu