Shashi Agrawal vs Vijay Kumar Agrawal & Ors

S.P.Garg, J

OA No. 117/2017 has been preferred by the plaintiff to challenge the legality and correctness of an order dated 05.07.2017 of learned Joint

Registrar (Judicial) in IA No.16250/2016 whereby he declined to pass any order thereon till the disposal of the IA No. 3215/2017 under Order XII

Rule 6 CPC filed by defendants No. 1 & 9.

Both OA and IA were heard.

On perusal of the record, it reveals that the plaintiff has filed the instant suit seeking partition of property No.16, Hailey Road, New Delhi to claim

her 1/3rd share in the property owned by Jagdish Kumar Agrawal. It is averred that Jagdish Kumar Agrawal died intestate on 06.12.1983. In their

written statements, defendants No.1 & 9 set up Will dated 04.08.1982 executed by Jagdish Kumar Agrawal. In the replication, the plaintiff claimed

that the said Will was a forged and fabricated document produced for the first time in the present proceedings. Apparently, validity of the Will dated

04.08.1982 is at issue.

Learned Senior Counsel for the contesting defendants urged that in view of admission of the plaintiff in previous proceedings, the Will in question

cannot be a subject matter of challenge and IA under Order XII Rule 6 CPC is to be allowed.

During the course of arguments, it emerged that in file Part-III at page 20 (list of documents on behalf of the defendants No.1 & 9), photocopy /

true copy of the Will is on record; it has been attested to be a ‘true copy’ by S.C.Mittal, Chairman, Staff Selection Commission, New Delhi.

Original of it has also been notarized by Notary Public, Delhi. Strange enough, this photocopy / attested copy of the Will does not bear signatures of

the testator or the attesting witnesses. Specific query was raised as to how this ‘true copy’ / ‘attested copy’ of the original Will did not

contain signatures of the testator or the attesting witnesses and for what purpose, it has been attested as ‘true copy’ of the Will, there was no

clear answer to it. In normal circumstances, it is unheard of getting a copy ‘attested’ in the absence of execution of the document (Will in this

case). There was perhaps no valid reasons to get the Will attested to be ‘true copy’ without its prior due execution. It prima facie lends

credence to the plaintiff’s plea that the Will in question is a forged and fabricated document. The matter requires to be adjudicated and at no

circumstance, the Will in question can be considered to have been ‘admitted’ by the plaintiff to allow application under Order XII Rule 6 CPC.

Let the learned Joint Registrar decide IA No.16250/2016 which was moved prior to filing of the IA No. 3215/2017 under Order XII Rule 6 CPC on

merits uninfluenced by the observations of this Court. It is impressed that the learned Joint Registrar shall summon the individuals who had put their

signatures on the ‘attested copy’ of the Will (page No.20) as well as Notary Public to ascertain as to how and in what manner, it was

‘attested’ / ‘notarized’ without it bearing signatures of the testator and the attesting witnesses.

The OA and IA stand disposed of in the above terms.

CS(OS) 535/2016 & IA Nos.13023/2016 (u/O 39 R-1&2 CPC), 16250/2016 (u/O 26 R-10A CPC)

List before the Roster Bench on 18th December, 2017 for further directions.