Radhey Krishna and 4 Others Vs Savitri Devi and 10 Others

Neutral Citation No. - 2025:AHC-LKO:15897

Court No. - 5

Case :- SECOND APPEAL No. - 48 of 2025

Appellant :- Radhey Krishna And 4 Others Respondent :- Savitri Devi And 10 Others Counsel for Appellant :- Vijay Kumar Mishra Counsel for Respondent :- Rama Raman Mishra,Rajeev Kumar Dwivedi

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Hon'ble Abdul Moin,J.

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Heard Sri Vijay Kumar Mishra, learned counsel for the appellants and Sri Rama Raman Mishra, learned counsel appearing on behalf of all the respondents.

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Instant second appeal has been filed raising a challenge to the judgment and order dated 13.12.2024 passed by the learned District Judge, Pratapgarh in Civil Appeal No. 123 of 2023 Inre; Radheykrishna & Ors Vs. Savitri Devi & Ors, a copy of which has been filed along with the memo of appeal whereby the appeal filed by the appellants herein has been rejected. Also under challenge is the judgment dated 02.09.2023 whereby the Original Suit no. 506 of 2002 Inre; Radhey Krishna and Ors Vs. Savitri Devi and Ors has been rejected.

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Fourteen alleged substantial questions of law have been framed by the learned counsel for the appellants.

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However, the said questions of law are more "factual in nature".

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The appeal merits to be dismissed on this ground alone inasmuch as no substantial question of law has been framed.

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However, on the insistence of the learned counsel for the appellants, the Court proceeds to hear the matter.

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Contention of learned counsel for the appellants is that one Sri Ram Lakhan who is the uncle of the appellants and who was allegedly living with the appellants executed a registered will deed (page 237 of the appeal) in favour of his daughters who are the respondents herein and were defendants before the learned trial Court.

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Subsequent thereto, an alleged unregistered will is said to have been executed by Sri Ram Lakhan on 25.08.2002 (page 192 of the appeal) per which he had indicated that the earlier registered will was executed by his enemies fraudulently and that he is interested in

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giving his land to his nephews, the appellants.

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Raising a challenge to the registered will dated 12.08.2002, the appellants/plaintiffs filed original suit before the learned trial Court praying for cancellation of the said registered will.

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The learned Trial Court, after the defendants had put an appearance and filed their written statement and evidence, dismissed the original suit vide judgment and order dated 02.09.2023.

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Being aggrieved, the appellants filed a civil appeal before the learned District Judge vide Civil Appeal No. 123 of 2023 which has also been dismissed by the appellate authority with cost vide judgment and order dated 13.12.2024 and hence the second appeal.

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As already indicated above, although after paragraph 'S' of the ground, fourteen questions of law have been framed by the appellants describing them to be substantial question of law but all the aforesaid questions are found to be more factual in nature. Accordingly, the Court has proceeded to hear the learned counsel for the appellants. The arguments are also factual in nature.

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It has been contended that (a) the execution of the will by Sri Ram Lakhan in favour of his daughters was done in suspicious circumstances which thus raises question on the genuineness of the registered will and it having been executed in suspicious circumstances.

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The issue in this regard should have been framed by the learned trial Court but the trial court patently erred in not framing the said issue.

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The other argument is that when by means of the letter dated 25.08.2002, Sri Ram Lakhan had indicated that the earlier will executed by him had been made fraudulently and this was his last will consequently, this will should have been considered by the learned Trial Court.

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No other ground has been urged.

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As regards the first ground as urged by the learned counsel for the appellants, suffice it to state that the learned trial Court has framed one issue as emerges from a perusal of the judgment and order dated 02.09.2023 namely as to whether disputed will on the basis of the grounds taken in the plaint merits to be cancelled. The said issue itself encompasses the grounds as had been taken by the appellants/plaintiffs before the learned trial Court as clearly finds placed in the sequences of events as have been indicated by the learned trial Court in paragraph 2 of its judgment. Thus, the learned

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trial Court after framing the issue and having discussed the same on the basis of evidence led by the parties before it, decided it against the plaintiffs. No error is found in the same.

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So far as the reliance placed on an unregistered will dated 25.08.2002 by the appellants is concerned, a perusal of the said alleged will indicates that it was a letter that had been sent allegedly by Sri Ram Lakhan to the Sub Divisional Magistrate. Although no specified format is specified for a will but it is not understood as to how by any stretch of imagination can a letter addressed to an officer could be construed to be a will.

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Even otherwise, there cannot be any occasion that a registered will dated 12.08.2002 to have been cancelled by means of the letter dated 25.08.2002 even if for the sake of arguments, the letter dated 25.08.2002 can be considered to be a will.

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In this regard, reliance has been placed on the judgment of this Court in the case of Kapil Ram Pandey and anr Vs. Board of Revenue and Ors- Neutral Citation No :- 2024:AHC:32823 wherein it has been held that a registered will cannot be cancelled by an unregistered will as the same would be in violation of the provisions contained under Section 92, proviso (4) of the Indian Evidence Act, 1872. For the sake of convenience, the relevant observations made in the case of Kapil Ram Pandey (supra) are reproduced below:-

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11. There is another aspect of the case also that registered will deed executed in favour of petitioners' has been alleged to be cancelled by unregistered will deed which is in violation of the provisions contained under Section 92, proviso (4) of the Indian Evidence Act, 1872 which runs as follows:-

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Proviso (4).--The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents:12. Hon'ble Apex Court in the case reported in 2000 (91) RD 615, S. Saktivel (Dead) by L.Rs. Vs. M. Venugopal Pillai and Ors has discussed the scope of Section 92 proviso 4 of the Indian Evidence Act, 1872. The paragraph no. 7 of the judgment rendered in S. Saktivel (Dead) by L.Rs (Supra) is relevant which is as follows:-

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"In sum and substance what proviso (4) to Section 92 provides is that where a contract or disposition, not required by law to be in writing, has been arrived at orally then subsequent oral agreement modifying or rescinding the said contract or disposition can be substantiated by

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parol evidence and such evidence is admissible. Thus if a party has entered into a contract which is not required to be reduced in writing but such a contract has been reduced in writing, or it is oral in such situations it is always open to the parties to the contract to modify its terms and even substitute a new by oral contract and it can be substantiated by parol evidence. In such kind of cases the oral evidence can be let in to prove that the earlier contract or agreement has been modified or substituted by new oral agreement. Where under law a contract or disposition are required to be in writing and the same has been reduced in writing, its terms cannot be modified or altered or substituted by oral contract or disposition. No parol evidence will be admissible to substantiate such an oral contract or disposition. A document for its validity or effectiveness is required by law to be in writing and, therefore, no modification or alteration or substitution of such written document is permissible by parol evidence and it is only by another written document the terms of earlier written document can be altered, rescinded or substituted. There is another reason why the defendant/appellant cannot be permitted to let in parol evidence to substantiate the subsequent oral arrangement. The reason being that the settlement deed is a registered document. The second part of proviso (4) to Section 92 does not permit leading of parol evidence for proving a subsequent oral agreement modifying or rescinding the registered instrument. The terms of registered document can be altered, rescinded or varied only by subsequent registered document and not otherwise. If the oral arrangement as pleaded by the appellant if allowed to be substantiated by parol evidence it would mean re- writing of Ex.A/1 and, therefore, no parol evidence is permissible."

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At this stage, learned counsel for the appellants has argued that there is a difference between the copy of the will which was challenged by the plaintiffs/appellants herein and the copy of the will which was filed by the defendants/respondents herein.

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Upon a specific query being put to the learned counsel for the appellants as to whether any such pleading was ever made before the learned trial Court, learned counsel for the appellants fairly admits that though the said pleading was not raised in the plaint yet in the written argument that had been filed by the plaintiffs, the said pleading was taken.

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Suffice it to say that it is settled proposition of law that in case the plea is not taken in the pleadings by the parties and no issue on such plea was, therefore, framed and no finding recorded then such plea cannot be allowed to be raised by the party for the first time whether in appeal, revision or writ for want of any factual foundation and finding. (See:-Deepak Tandon and Ors Vs. Rajesh Kumar GuptaMANU/SC/0151/2019).

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Keeping in view the aforesaid discussion, the second appeal is dismissed.

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Order Date :- 19.3.2025 Pachhere/-

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Digitally signed by :- SATYENDRA SINGH PACHHERE High Court of Judicature at Allahabad, Lucknow Bench

Radhey Krishna and 4 Others v. Savitri Devi and 10 Others

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