Smt Muskan Puri v. Rajan Popli

and Sri Ashok Kumar Singh, learned counsel for the respondent.

By means of this petition filed under Article 227 of the Constitution, petitioner has questioned the order dated 18th October, 2024 passed by the learned Additional District Judge, F.T.C. No.- 2, Ghaziabad, whereby his miscellaneous application seeking substitution has come to be rejected only on the ground that it was based upon an unregistered Will, which was against the principle of Order 22 Rule 5 of Code of Civil Procedure, 1908.

Learned counsel for the petitioner submitted that in law registration of Will is not compulsory as registration of the same is kept optional. It is further submitted that merely because a registered Will executed in earlier point of time has been produced, it will not render it to be a valid Will as presumption raised regarding a registered document is always rebuttable. According to him if subsequent Will by which the earlier Will had been revoked, in such circumstances the subsequent Will will prevail. It is further submitted that instead of rejecting the application for substitution, the court ought to have framed point in terms of provisions contained under Order 22 Rule 5 of C.P.C. and should have permitted parties to lead their respective evidence and then ought to have decided the point.

Per contra, it is argued by learned counsel for the respondent that Will produced by the petitioner is an unregistered Will and since a registered document can be cancelled only by a registered document, merely because subsequent Will has recitals cancelling the earlier Will, this will not amount to revocation of earlier Will which was duly and validly registered in law. He further submits that application seeking substitution was also not in the tune with the Will that had been set up by the respondent. He further submits that the judgment of Division Bench of this Court in the case of Pramila Tiwari v. Anil Kumar Mishra and others passed in Matters Under Article 227 No.- 8279 of 2022 decided on 10th May, 2024 is relating to the agricultural holdings and there the issue was as to the requirement of law for registration brought by amendment under the erstwhile U.P. Zamindari Abolition and Land Reforms Act, 1950 for compulsory registration of Will.

Having heard learned counsel for the respective parties and having perused the records, what I find is that matter relates to a building in respect of which Wills have been set up by both the parties. The law on the point is very much clear that a Will is not required compulsory to be registered. However, a party can always seek registration of Will. In the event a registered Will was produced against which an unregistered Will has been produced, the court while may raise presumption regarding farmer but such a presumption is always rebuttable and in such circumstances, therefore, the obligation casts upon the court is to adjudicate the point of substitution and for that it should frame a point for determination in terms of Order 22 Rule 5 of C.P.C.

In my considered view, the view taken by the court below that an unregistered Will does not conform to the principle of registration of an instrument, is not justified one. To reach to a conclusion court is called upon to decide the issue under Order 22 Rule 5 C.P.C.

In the circumstances, therefore, the court is required to re-frame the point qua validity of a Will registered as well unregistered against and is also required to permit parties to lead their evidence and decide the point afresh. It is further clarified that pendency of suit for declaratory decree on the basis of Will will not deter that court to determine the point in question.

In view of the above, the order dated 18th October, 2024 passed by the learned Additional District Judge, F.T.C. No.- 2, Ghaziabad in Execution Case No.- 190 of 2020 is hereby set aside.

The matter is remitted to be decided afresh in the light of the observations made above.

Parties are directed to cooperate in the proceedings and endeavour of the court would be to frame the issue within 15 days from the date of production of certified copy of this order and thereafter permit parties to lead their evidence and thereafter the court in all circumstances, shall decide the point of substitution within a further period of two months. Order Date :- 24.2.2025 Atmesh ATMESH KESARI High Court of Judicature at Allahabad