Jay Singh Vs Prabhan Singh and Another

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Neutral Citation No. - 2024:AHC-LKO:73200

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Court No. - 4

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Case :- SECOND APPEAL No. - 190 of 2024

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Appellant :- Jay Singh Respondent :- Prabhan Singh And Another Counsel for Appellant :- Ram Ji Trivedi

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Hon'ble Rajnish Kumar,J.

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Sri Ram Ji Trivedi, learned counsel for the appellant submits that the learned trial court as well as the learned appellate court have wrongly and illegally dismissed the suit and the appeal filed by the appellant on the ground that the Will in favour of the appellant was unregistered Will and not tenable in the eyes of law in view of the amendment in Section 169(3) of U.P. Z.A. & L.R. Act 1950, whereas the said provision has been declared void by this Court to the extent it provides for registration of Will by means of the judgment and order dated 10.05.2024 passed in Matters under Article 227 No.8279 of 2022(Pramila Tiwari versus Anil Kumar Mishra and 4 others). Therefore the judgment and decree passed by the courts below are not tenable in the eyes of law.

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I have considered the submissions of learned counsel for the appellant and gone through the material placed on record.

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This second appeal has been filed assailing the judgment and decree dated 10.09.2024 passed in Civil Appeal No.15 of 2024(Jay Singh versus Prabhan Singh & Others) by District Judge, Unnao and judgment and decree dated 02.12.2022 passed by Civil Judge (Junior Division), North, Unnao in OS/262/2007(Jay Singh versus Prabhan Singh and Others).

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The suit for permanent injunction was filed by the appellant claiming right on the basis of unregistered Will dated 11.05.2004 executed by one Laxmi Narayan, who died on 22.02.2007. The trial court, after considering the pleadings and material on record, held that the appellant has failed to prove the Will and it's execution. However, the trial court observed that in view of

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amendment in Section 169(3) of the U.P. Z.A. & L.R. Act if any Will becomes executable after 23.08.2004 it should be compulsorily registered and since Laxmi Narayan had died on 22.02.2007, therefore it should have been registered.

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The first appellate court considered this issue and observed that the High Court has declared Section 169(3) of U.P. Z.A.& L.R.Act to be void to the extent it makes registration compulsory,therefore the burden to prove Will is on appellant. Thereafter proceeded to consider as to whether the Will has been proved by the appellant in accordance with law or not. The appellate court found that the Will has been executed before the notary. However, the original Will has not been placed on record.

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The appellant appeared as P.W.1, who stated in his evidence that he has neither seen the original Will nor the original Will has been filed in this case. P.W.2 Ramesh who is witness to the Will has stated that the Will was prepared on 11.05.2004 before two months of death of Laxmi Narayan. He stated that he does not know what is written in the Will. It was written that the Will is being made to his brother-in-law Jai Singh. The original Will was deposited in the Registrar OfÏce, whereas the Will is not registered. P.W.3 Lallu Singh stated that he has not filed any afÏdavit of evidence. He also could not tell the date, time and month of the execution of the Will. He also does not know that Will is registered or unregistered. He also does not know as to whether the Will was written or it was typed. D.W.2 has stated that no Will was executed by Laxmi Narayan during his life time.The learned appellate court, after considering the evidence adduced by the appellant, found that the appellant has failed to prove the Will from the oral as well as documentary evidence and dismissed the appeal.

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In view of above,the contention of the appellant that the appeal has been dismissed on the ground that Will was required to be registered compulsorily is mis-conceived and not tenable as the appeal has not been dismissed on this ground, rather the appellate court has observed that the required provision was declared void by this Court

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and thereafter proceeded to consider as to whether the Will has been proved or not and found that the appellant has failed to prove Will. The trial court has also recorded a finding that the appellant has failed to prove Will.

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This Court does not find any illegality or error in the findings recorded in the impugned judgment and decrees of court's below on the basis of pleadings, evidence and material on record and the Will could not be proved by the appellant. Learned counsel for the appellant has also failed to point out any evidence or material on record contrary to it. No substantial question of law arises in this appeal.

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The appeal has been filed on mis conceived and baseless grounds, which is liable to be dismissed.

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The second appeal is dismissed.

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Order Date :- 6.11.2024 Akanksha Sri.

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Digitally signed by :- AKANKSHA SRIVASTAVA High Court of Judicature at Allahabad, Lucknow Bench

Jay Singh v. Prabhan Singh and Another

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Jay Singh v. Prabhan Singh and Another

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