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2005 Supreme(All) 1164
IN THE HIGH COURT OF ALLAHABAD
POONAM SRIVASTAVA
AAFTAB AHMAD - Appellant
Versus
MOHD SOYEB - Respondents
Second Appeal 1561 Of 2001
Decided On : 07/11/2005
K.N.Rai, R.C.Upadhyay, Sankatha Rai, Vijay Kumar Rai, Vinod Kumar Rai, VIVEK MISHRA
The central legal point established in the judgment is the requirement to produce the original Will as the basis of a suit and the inapplicability of res judicata when the appellant was not a party to the previous litigation.
Headnote:
WILL - Property Dispute - U.P. Z.A. and L.R. Act, Muslim Law - Section 118, Section 63 - The court discussed the validity of an unregistered Will dated 3. 11. 1969 and its compliance with Muslim Law provisions. The court also analyzed the application of res judicata principles based on previous litigation involving the same parties.
Fact of the Case:
The dispute involved a property claim based on an unregistered Will dated 3. 11. 1969. The plaintiff sought possession and damages, while the defendant denied the existence of the Will and claimed inheritance rights under Muslim Law. The courts below decreed the suit for possession but dismissed the claim of damages. The appellant challenged the decision on the grounds of failure to produce the original Will and the application of res judicata.
Finding of the Court:
The court found that the plaintiff's failure to produce the original Will was fatal to the case, as it violated the provisions of Order 7 Rule 14 C.P.C. and Sections 62 and 68 of the Indian Evidence Act. The court also held that the principle of res judicata was not applicable as the appellant was not a party to the previous litigation, and the matter was not directly and substantially in issue in the previous suit.
Issues: The issues included the validity of the unregistered Will, compliance with Muslim Law provisions, and the application of res judicata.
Ratio Decidendi: The court held that the failure to produce the original Will was a manifest illegality, and the principle of res judicata was not applicable due to the absence of the appellant in the previous suit.
Final Decision: The judgment and decree of the lower courts were set aside, the suit was dismissed, and the second appeal was allowed with costs.
( 1 ) HEARD Sri sankatha Rai Advocate, assisted by Sri Vinod kumar Rai, Advocate, counsel for the appellant and Sri K. N. Rai, learned counsel for the respondents.
( 2 ) THIS is defendants appeal. The plaintiff-respondents filed a suit No. 439 of 1982 against the appellant for a relief of possession over the house shown by figures 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 in the plaint. By way of amendment, relief of damages at the rate of Rs. 200. 00 per month from 15. 9. 1982 till the date of possession was also claimed. The appellant filed his written statement on 9. 3 1987 disputing each and every allegations in the plaint. The Munsif West, Ballia vide judgment dated 10/8/1994 decreed the plaintiffs suit for relief of possession but dismissed the claim of damages. The appellant filed Civil appeal No. 87 of 1994 and plaintiffs filed his cross objection. The Additional District Judge, ballia vide judgment dated 26/11/2001 dismissed the appeal and cross objections.
( 3 ) THE dispute is between the family member in respect of the house shown in the plaint. The admitted pedigree of the parties is detailed below :-
( 4 ) THE subject matter of the suit is a double storied Pakka house situated in village firozpur, Pargana Kopachit Sharkee, District ballia. The basis of the plaintiffs claim is an unregistered Will dated 3. 11. 1969 alleged to be executed by Hakim Shukarullah (maternal grand father of the plaintiff and defendant no. 1) in respect of the property in dispute. The will was in favour of the plaintiff and as such plaintiff claimed his sole ownership of the disputed property. Though it was pleaded that the parties were living in the house in dispute since life time of Shukarullah and even after his death, the defendant-appellant continued to live in the house with the permission of the plaintiff-respondents. On 12. 9. 1982 the plaintiff revoked the licence and filed a suit for possession and damages. The defendant-appellant specifically denied the execution of the will by shukarullah in favour of the plaintiff on several counts. The appellant pleaded that the Will cannot stand the rest of law as according to section 118 of the Muslim Law, a Will cannot be executed for more than one third share. The "term sharer" is defined under Section 63 of the said Act. On 18. 8. 1992 the defendant appellant filed additional written statement.
( 5 ) THE plaintiff had filed another amendment application along with replication stating that the plaintiffs mother Kaneez Fatma, daughter of Shukarullah had instituted Original suit No. 154 of 1975 in the court of Munsif west, Ballia for cancellation of the Will which was dismissed on 14. 3. 1980. Thereafter a Civil appeal No. 266 of 1980 was filed by Kaneez fatma in the court of Additional District Judge, ballia and the same was dismissed on 22. 3. 1982. A second appeal No. 2008 of 1982-Kaneez Fatma v. Mohd. Soyab was filed in this Court which was dismissed on 30. 8. 1989. However, it is admitted that the defendant-appellant was not a party in the said suit. The plaintiff claimed that it was the defendant-appellant who was doing pairvl on behalf of his mother Kaneez Fatma and as such the judgment of Original Suit No. 154 of 1975 which has been upheld upto the stage of High court, will operate as res judicata. The defendant-appellant also pleaded that in the year 1969 the plaintiff himself had filed a suit against hakim Shukarullah and others under Section 229-B of U. P. Z. A. and L. R. Act. There was no mention of existence of a Will in the suit and since in the year 1969 the plaintiff was litigating with hakim Shukarullah it is absolutely beyond imagination that Shukarullah will execute a will in favour of plaintiff excluding share of his wife and the defendant.
( 6 ) THE trial court framed as many as 8 issues, however no issue was framed by the trial Court on the question as to whether any will dated 3. 11. 1969 was executed by Late shukarrullah in favour of the plaintiff
