Disposed

Nishchal Pal and Another v. Shiv Poojan and 41 Others

Allahabad HC11 Sept 2025SAPL/150/2025

Case brief

AI extract

What is this about?

Second appeal admitted against concurrent decrees upholding a sale-deed chain based on a Will earlier held unproved in another proceeding. Substantial questions of law framed on res judicata effect of the prior finding and proof of Will; notice issued, status-quo ordered.

What did the court decide?

Second appeal admitted; notices issued; lower court record summoned; interim order directing both parties to maintain status-quo and not alienate or change the nature of the property.

Nishchal Pal and Another vs Shiv Poojan and 41… — Succession and Inheritance | Allahabad HC (2025)

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HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW

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SECOND APPEAL No. - 150 of 2025

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Nishchal Pal And Another

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.....Appellant(s)

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Versus

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Shiv Poojan And 41 Others

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.....Respondent(s)

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Counsel for Appellant(s) : Pritish Kumar, Amal Rastogi Counsel for Respondent(s) :

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Court No. - 7

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HON'BLE JASPREET SINGH, J.

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Heard Shri Pritish Kumar, learned counsel for the appellants.

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The instant second appeal preferred under Section 100 CPC assails the judgment and decree dated 08.05.2025 passed by the Special Judge, Ayurved Scam/CBI, Lucknow in Regular Civil Appeal No.335/2018, whereby the appeal was dismissed and the judgment and decree dated 26.10.2018 passed by the Additional Civil Judge (Senior Division), Court No.20, Lucknow in Regular Suit No.475/1991 was affirmed.

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The instant second appeal has a chequered history. Apparently, the disputes emanate in respect of Houses No.82/31 and 82/31-A which was purchased on 22.05.1944 by Ram Dulare.

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As per the pedigree mentioned in Para-2 of the plaint in suit, Ram Dulare died issueless in the year 1955. Ram Dulare was survived by his nephews (sons of Durga Prasad) namely, Ram Bharose, Ram Adhar and Ram Asray. It has been stated that after Ram Dulare died in the year 1955, since he was issueless, the property i.e. two houses would vest with the nephews, namely, Ram Bharose and Ram Asrey.

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At this stage, it will be relevant to point that Ram Adhar had also died issueless.

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Be that as it may, the disputes emerged when after the death of Ram Dulare, a lady, namely Smt. Sunder Bai, who set her claim on the said

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SAPL No. 150 of 2025

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property on the basis of being the widow of Ram Dulare.

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Ram Asrey, challenging the status of Smt. Sunder Bai as wife of Ram Dulare, instituted a suit bearing R.S. No.495/1957. The said suit as well as the first appeal under Section 96 CPC came to be dismissed. Ram Asrey escalated the matter before this High Court in a Second Appeal No.678/1962. While the said second appeal was pending, Smt. Sunder Bai died on 28.12.1969 and at that stage one Nanhey son of Dhangoo claimed rights in the property on the basis of a Will dated 07.12.1969 said to have been executed by Smt. Sunder Bai in his favour.

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Simultaneously, the real brother of Smt. Sunder Bai, namely, Mani Ram also sought his substitution in the said Second Appeal No.678/1962. The High Court confronted with conflicting claims vide its order dated 31.08.1970 exercising its powers under Order XXII Rule 5 CPC framed an issue regarding the validity of the Will and remitted the matter to the trial Court for taking evidence and returning a finding in this regard.

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It is also stated that the trial Court after affording an opportunity to the parties to establish their respective claims returned a finding to the effect that Nanhey could not prove the Will of Smt. Sunder Bai dated 07.12.1969, as a consequence, the application of Nanhey seeking his substitution on the basis of the Will was rejected and Mani Ram was held to be the legal heirs of Smt. Sunder Bai to continue the said appeal.

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It has also been pointed out that the second appeal was finally dismissed on 05.12.1977. The consequence of the judgment of the High Court as mentioned above was that Smt. Sunder Bai was treated to be the widow of Ram Dulare on the basis of long cohabitation even though the ceremony of marriage itself was not proved.

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While this limb of litigation was pending before the High Court, it is stated that Nanhey executed a sale-deed dated 30.04.1970 and sold both the houses to Smt. Shanti Devi. Since, the possession of the property was not with Smt. Shanti Devi, hence, she instituted a suit in the year 1978 seeking possession from Ram Asrey. In the said suit, Ram Asrey had put in his appearance, but the matter could not go to trial as the appropriate Court fee had not been paid by Smt. Shanti Devi, as a result, her plaint

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SAPL No. 150 of 2025

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was rejected in terms of the Order VII Rule 11 CPC.

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In the aforesaid backdrop, another important development took place and that is Smt. Shanti Devi sold House No.82/31 to one Vishnu Shankar Mishra by means of the sale-deed dated 04.12.1989. It is in the aforesaid backdrop that Ram Asrey filed a Suit No.475/1991 seeking cancellation of the sale-deed dated 04.12.1989 (the sale-deed by which Smt. Shanti Devi) sold the property to Vishnu Shankar Mishra and the sale-deed dated 30.04.1970 (whereby Nanhey had sold the property to Smt. Shanti Devi).

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In the said suit, the trial Court framed 21 issues, however, the controversy involved actually revolves around three issues which were framed by the trial Court, namely, Issues No.2, 3 and 4. The parties led their respective evidence and while answering the aforesaid three issues, the trial Court held that the order passed by the High Court dated 27.02.1976, wherein it accepted the findings of the trial Court that the Will executed by Smt. Sunder Bai in favour of Nanhey, which was not proved, would not have a binding impact on the successors, namely, Smt. Shanti Devi and Vishnu Shankar Mishra. It thus found that the Will was proved in the instant proceedings i.e. Suit No.475/1991, as a consequence, the natural line of the succession stood diverted and the property would belong to Vishnu Shankar Mishra. As a consequence, the title which was claimed by the plaintiff Ram Asrey, on the basis of succession, was found to be disproved. Accordingly, the suit was dismissed.

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The plaintiffs escalated the matter before the First Appellate Court by filing Regular Civil Appeal No.335/2018, which too met the same fate, and it was dismissed by means of the judgment and decree dated 08.05.2025 and the two concurrent judgments and decrees are under challenge in the instant second appeal.

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The submission of the learned counsel for the appellants is that two Courts have erred in failing to consider the true import of the provisions under Order XXII Rule 5 and once a finding had been recorded by the High Court in Second Appeal No.678/1962 to the effect that the Will executed by Smt. Sunder Bai was not established, no rights could flow in favour of Nanhey. Consequently, he could not have sold the property to

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SAPL No. 150 of 2025

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Smt. Shanti Devi nor any valid transfer of title could have been effected in her favour.

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For the very same reason, the sale-deed executed by Smt. Shanti Devi in favour of Vishnu Shankar Mishra suffered from the same vice of defect of title, as once the predecessor did not have the title he could not have conveyed any better title. Once the Will dated 07.12.1969 was found to be not proved, the succession would take effect and by virtue of Section 8 read with Section 15(2) of the Hindu Succession Act, 1956, the property would vest with Ram Asrey and thus it is urged that the title of the plaintiff Ram Asrey could not be defeated and the view ascribed by the trial Court was patently erroneous and against the statutory provisions.

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It is further urged that the First Appellate Court also fell in error in accepting the Will, may be for an additional reason, that the alleged Will was held to be proved, on the basis of testimony of a witness, who at the relevant time was a minor and is said to have seen the said execution during his young days, when he was a minor.

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It is urged that it is a settled law that the propounder of the Will is required to establish the execution and attestation as provided in law and having failed to do so coupled with the findings recorded by the High Court that the Will was not proved could not have ignored by the trial Court as well as the First Appellate Court, which has resulted in sheer miscarriage of justice.

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The matter requires consideration.

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The second appeal is admitted on the following substantial questions of law:-

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(i) Whether the two Courts have committed an error in construing the true import of the provisions of Order XXII Rule 5 CPC and the impact of the findings given therein which would bind not only the parties but even their successors ?

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(ii) Whether in a separate title proceedings if a Will was held to be not proved, whether the findings thereon would operate as

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SAPL No. 150 of 2025

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res judicata only in the earlier suit or it would have the impact on subsequent litigation especially when the parties were contesting the subsequent litigation on the basis of the same parties and in capacity of the same title as before the Court in which the earlier proceedings was decided?

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(iii) Whether the two Courts have failed to consider that it is for the propounder of a Will to prove the same in terms of Section 63 of the Indian Succession Act, 1925 read with Section 68 of the Indian Evidence Act, 1872 and once Will was not proved then as per Section 15(2) of the Hindu Succession Act, 1956, how the successions would operate on the parties ?

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Let notice be issued to the respondents returnable at an early date.

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Let the record of lower Court Record be summoned.

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Learned counsel for the appellants shall take steps for service on the respondent as well as summoning of the record of Lower Court within a week from today.

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24. List in third week of November, 2025.

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As an interim protection, it is provided that until further orders of this Court, the parties shall maintain status-quo as it exists today and none of the parties will either alienate or change the nature of the property in question.

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(Jaspreet Singh,J.)

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September 11, 2025

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Rakesh/-

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Digitally signed by :- RAKESH PRAJAPAT High Court of Judicature at Allahabad, Lucknow Bench

Nishchal Pal and Another v. Shiv Poojan and 41 Others

Case brief

What is this about?

What did the court decide?

Nishchal Pal and Another v. Shiv Poojan and 41 Others

Case brief

What is this about?

What did the court decide?

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