SARITA DEVI Vs. NIRMALA DEVI

JUDGEMENT

(1.) Instant petition filed under Article 227 of the Constitution of India lays challenge to order dated 12.4.2019 (Annexure P-3), passed by the learned Civil Judge, Court No.3, Ghumarwin, District Bilaspur, H.P. in CMA No. 421-6/2018 in CS No. 377-1/2017/07, whereby an application under Order 8 Rule 1 A (3) CPC, having been filed by the non-applicants-defendants (in short "the defendants") for placing on record will dated 2.1.1998 alongwith copy of complaint, came to be allowed.

(2.) Briefly stated facts, as emerge from the record are that petitioner-plaintiff filed suit for decree of declaration qua their joint ownership and possession over the land in dispute, more specifically, by assailing will dated 2.1.1998, registered in the office of Sub-Registrar, Ghumarwin in favour of respondent/defendant No.1. By way of aforesaid suit, plaintiffs claimed that will dated 2.1.1998 is wrong, illegal and is result of fraud and as such, second mutation attested on the basis of the same, is also wrong. During pendency of aforesaid suit, an application under Order 8 Rule 1 A (3) CPC came to be filed on behalf of defendant No.6 i.e. respondent No.2 herein, seeking therein permission to produce on record will dated 2.1.1998 alongwtih copy of complaint. Defendant No.6 averred in the application that testator Brij Lal had executed a legal and valid will on 2.1.1998 and same has been forged by the plaintiffs in the main suit. Applicants averred that original will was with defendant No.5 namely Nirmala Devi, who subsequently handed over the same to halqua patwari for entering mutation. Mutation Nos. 1564 and 433 dated 3.5.2007 were attested on 3.5.2007 on the basis of aforesaid will, but after attestation of mutation, such will was not traceable despite best efforts put in by the applicants. Applicants further averred that Nirmala Devi remained under impression that same is taken by other beneficiary namely defendant No.2 (Dharmender Kumar) and as such, same could not be submitted with documents filed alongwith written statement. Applicant/defendant No.6 further averred that subsequently, defendant No.5 with view to prove the will in question by way of secondary evidence moved an application under Sections 65 & 66 of the Indian Evidence Act, but now since original will has been found by the applicants, they be permitted to place the same on record. It has been specifically stated in the application that since defendant No.5 is an old and illiterate lady, will in question could not be produced despite due diligence at the time of filing written statement.

(3.) Aforesaid application came to be contested by the nonapplicants/plaintiffs, who by way of reply (Annexure P-2), contended that application deserves outright rejection being belated. Nonapplicants/plaintiffs further claimed that entire case of the plaintiffs stands admitted by the applicant during her examination as DW1, wherein she stated that she does not know about the custody of the original will. Plaintiffs further averred that since applicant earlier filed an application claiming that alleged will is in custody of defendant No.2, present application filed on altogether different assertions cannot be accepted at this stage. Plaintiffs further averred in the reply that despite availing sufficient opportunities, applicants/defendants No. 5 and 6 have not brought on record such original will. They further averred that defendant No. 6 has categorically stated that original will is with defendant No.2 Dharmender Kumar, whereas altogether contradictory pleadings have been taken in the application and as such, same may be dismissed.