RAMAPATI TIWARI Vs. DISTRICT REGISTRAR

JUDGEMENT

(1.) I have heard Sri V. K. S. Chaudhary, Senior Advocate assisted by Sri deo Prakash Singh learned counsel appearing for the appellant and Sri M. D. Singh 'shekhar', Senior Advocate assisted by Sri p. K. Kesari learned counsel for the respondent No. 3, the main contesting party. The other respondents are only formal in nature.

(2.) THE suit/appeal owes its origin to a dispute relating to ownership of a plot of land 22-B Church Lane, Allahabad on which a huge house was constructed by one tribhuwan Sukh Tiwari who was an assistant Commissioner of Excise, U. P. On his death the said property had devolved upon his wife Smt. Ram Lalli who died on 21-3-1979. They had no issue. The two nephews of late Tribhuwan Sukh Tiwari set up two contradictory unregistered 'wills' of Smt. Ram Lalli. One dated 20-2-1979 by Rama pati and the other dated 11-3-1979 by Girja prasad, both sons of Param Sukh one of the elder brothers of late Tribhuwan Sukh tiwari. Girja Prasad presented the 'will' dated 11-3-1979 of Smt. Ram Lalli which is said to be in his favour for registration before the Registering Authority on 25-4-1979. The registration of the said 'will' was refused to him by an order dated 10-11-1980 against which he preferred an appeal under Section 72 of the Registration Act, 1908. It was dismissed on 27-3-1982. Therefore, he instituted Original suit No. 289 of 1982 on 21-4-1982 under Section 77 of the registration Act, 1908 for a decree directing the registering Authority to register the 'will'. In the suit the other nephew Rama Pati was impleaded as one of the defendants as he had set up a different 'will' dated 20-7-1979. The suit after due contest was dismissed vide judgment and order dated 24-9-1994 passed by the Court of first instance. However, in appeal the judgment, order and decree of the court of first instance has been set aside and the suit has been decreed vide judgment and order dated 17-10-2007 with the direction to the Registering Authority to register the 'will'. The present second appeal as such has been preferred by one of the defendants i. e. Rama Pati assailing the judgment, order and decree passed by the lower appellate court.

(3.) WHETHER a suit under Section 77 of the registration Act, 1908 for posthumous registration of a 'will' is maintainable is the core question of substance which has been raised in the present appeal.