Uttarakhand High Court
Kanhaiya Singh vs Jamaluddin And Others on 2 April, 2025
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 723 of 2025 (M/S)
Kanhaiya Singh ..........Petitioner
Vs.
Jamaluddin and others ...........Respondents
Present : Mr. T.A. Khan, Senior Advocate assisted by Mr. Mohd. Shafy, Advocate for
the petitioner.
Mr. Chetan Joshi, Advocate for the respondents.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
The challenge in this petition is made to an order dated
12.02.2025, passed in Civil Suit No.81 of 2014, Jamaluddin Vs.
Nafees Ahmad and others, by the court of Civil Judge (Jr. Div.),
Kotdwar, District Pauri Garhwal, by which, an application filed by
the petitioner for summoning Sub Registrar from the office of the
Sub Registrar, Kotdwar to prove the will-in-dispute dated
05.04.1990 has been rejected.
2. Heard learned counsel for the parties and perused the
record.
3. The suit was filed by the respondent no.1 against the
petitioner and other respondents for permanent injunction and
cancellation of will dated 05.04.1990 allegedly executed in favour of
the petitioner by his father. The will was challenged on the ground
that it was forged, void and was got executed by the petitioner by
impersonating some person as his father. In the suit at the stage of
defendant/petitioner's evidence, an application under Section 139-
C was filed by the petitioner, which is as follows:-
"In the above matter, it is respectfully submitted on behalf
of defendant that matter is fixed for remaining defence evidence.
The defendant wish to produce Sub-registrar / appropriate
authority from the office of Sub-registrar, Kotdwara, as defence
witnesses, to prove the subjected 'will' dt. 05-4-1990 executed by
Lungi Singh Ji in favour of his son Kannayya Lal and power of
attorney dt. 06-04-1990, executed by Lungi Singh Ji in favour of
Ruknuddin S/o Aminuddin.
It is therefore, prayed that in the interest of justice,
defendant may kindly be allowed and permitted to summon Sub-
registrar / appropriate authority from the office of Sub-registrar,
Kotdwara, who may bring relevant records for relevant period /
date, as defence witnesses."
4. The respondent no.1 filed objections to it. It has been
the case of the respondent no.1 that the Sub-Registrar is not the
eye witness of the disputed will.
5. Learned Senior Counsel appearing for the petitioner
would submit that the original will is not in the possession of the
petitioner; it has been registered. It is submitted that earlier on
03.03.1990, the deceased Lungi Singh had executed a will in favour
of respondent no.1, but subsequently, by the will-in-dispute dated
05.04.1990, he revoked the earlier will and executed the will in
favour of the petitioner, who happened to be his son. It is argued
that the attesting witnesses are not available now. It is submitted
that the will-in-dispute records that while registering it, Rule 230 of
the Registration Manual Uttar Pradesh has been complied with and
in the will that was executed in favour of the respondent no.1, an
endorsement is made that pursuant to the subsequent will, the will
executed in favour of the respondent no.1 gets affected. Learned
Senior Counsel would submit that the endorsement needs to be
proved.
6. Learned counsel for the respondent no.1 would submit
that it is delaying tactic of the petitioner and the writ petition, as
such is not maintainable.
7. The original will in the instant case is not produced
which the petitioner claims to have been executed in his favour by
his father. What is being argued is that the original will had never
been given to the petitioner by the Sub Registrar office. The certified
copies of both the wills are on record. Any endorsement made on it
need not be proved separately. The authenticity and the
truthfulness of the averments need to be proved. For that matter, it
is not the case that this endorsement was made by a particular
person who is proposed to be summoned. It is a document
prepared by a public servant in discharge of his official duties.
8. As stated, what is stated in these certified copies may
be read, but they are true, it is required to be proved. What is the
allegation against the petitioner is that will dated 05.04.1990
allegedly executed in his favour by his father is forged and have
been executed by him by impersonation. That is required to be
proved.
9. The court below has rightly discussed the rival
contention and arrived at a conclusion that there is no need to
summon the Sub-Registrar. In fact, summoning the Sub-Registrar
could not assist the court to arrive at a just decision of the case.
What the Sub-Registrar, who is present today, may only say is that
an endorsement is made on the will. That can otherwise also be
read. Therefore, this Court does not see any reason to interfere in
the matter. Accordingly, the writ petition deserves to be dismissed
at the stage of admission itself.
10. The petition is dismissed in limine.
(Ravindra Maithani, J.)
02.04.2025
Sanjay
