# Aftab Ahmad Defendant v. Mohd. Soyab and others

- **Citation:** (2005) 2 ILRA 849
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-07-11
- **Case number:** Second Appeal No. 1561 of 2001
- **Bench:** Mrs. Poonam Srivastva
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aftab-ahmad-defendant-v-mohd-soyab-and-others-40555
- **Pages:** 10

## Headnote

(A) Indian Evidence Act, 1872-S.-62 and
68 readwith Mohammdan Law-Section
63,
118-unregistered
will-executedregarding entire property-while other
natural heir were alive-whether can such
will be treated a valid document-which
has been executed against the personal
law? Held-'No' unless the original will
deed filed and attested-finding regarding
title on the basis of such will can not
sustained.

Held: Para 15

I now proceed to examine the effect of
failure of the plaintiff to produce the
original will which is the basis of the suit
and its result. Admittedly in the present
case neither the original unregistered
will dated 3.11.1969 was filed by the
plaintiff
nor
the
execution
and
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
850
attestation of the same was proved. The
plaintiff's suit was decreed in clear
violation of specific provisions of the
Code as provided in Order 7 Rule 14. It is
settled law that merely the presentation
of the will is not sufficient unless the
execution and its attestation is proved in
accordance with law. The provisions of
Sections 62 and 68 of the Indian
Evidence Act, 1872 was not followed.
The will was a primary evidence which
was required to be proved in accordance
with Evidence Act before any reliance
could have been placed on the said will
by the courts below. It was in clear
violation of Sections 62 and 68 of the
Indian Evidence Act and the court was
led away by the fact that previously
Mohd. Soyeb contested with his mother
on the question of will and lost the case
up till the stage of the High Court. The
rights
of
the
appellant
was
not
considered, since he was not a party to
the suit. The production of the will in the
suit was all the more necessary for the
reason that the will executed was
against the specific provisions of the
Personal Law. Late Shukarullah could not
bequeath the entire property as his
natural heir Smt. Kaneez Fatma was
alive and had 1/2 share in the property
of her father. In view of Sections 118
and 63 of Mohammadan Law the will
could not be held to be valid whereas in
the instant case the will itself was not
produced
in
the
court.
In
the
circumstances, the court had no occasion
to examine the contents of the will. The
plaintiff was liable to prove the will. The
courts below completely overlooked this
material aspect specially when the case
of the appellant was that no such will
was executed by Late Shukarrullah. The
Apex Court in its decision in the case of
Madhukar D. Shende Vs. Tarabai Aba
Shedage, J.T. 2002(1) S.C. 74 held that
the requirement of proof of a will is the
same as any other document except that
the evidence tendered in proof of a will
should
additionally
satisfy
the
requirement of Section 63 of the Indian
Succession Act, 1925 and Section 68 of
the Indian Evidence Act, 1872. If after
considering the matters before it, that is,
the
facts
and
circumstances
as
emanating from the material available
on record o

## Text

2 All] The Commissioner of Income Tax V. M/s Pateshwari Electrical & Associated 849
assessee had let out office to the
occupants on monthly rent which was
inclusive of all charges to the assessee
and the entire cost of the property was let
out to the occupants and owner had been
recovered as rent from premises by the
assessee, therefore, could not be said that
the assessee was exploiting the property
for its commercial business activity.

13. In the case of CIT Vs.
Purshottam Dass, reported in 247 ITR
316 property constructed as a residential
unit
was
let
out
to
Government
department was temporary used for office
purpose earlier. Division Bench of Delhi
High Court held that construction was
made for residential purpose in a
residential area and was mere temporary
non-user as residence and consequent
temporary user for office purposes will
not make the rent chargeable as business
income. It has been held that liable to be
taxed as property income.

14. So far as question no. 3 is
concerned, Tribunal has given reasoning
for coming to the conclusion that the rent
from cold storage, motor garage, Raj Oil
Mill and approval charges may be taxed
under head income from business and not
under head income from other sources.
We do not find any error in the view of
the Tribunal.

15. We accordingly, answer the
question nos. 1,2 and 3 in affirmative, i.e.
in favour of the assessee and against the
Revenue. So far as question no.4, which
has been referred at the instance of the
assessee we refuse to answer the said
question in the absence of assessee.

16. In the result, question nos. 1,2
and 3 are answer in affirmative, i.e. in
favour of the assessee and against the
Revenue and question no.4 is returned
unanswered. There shall be no order as to
cost. Question decided affirmative.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.07.2005

BEFORE
THE HON'BLE MRS. POONAM SRIVASTVA, J.

Second Appeal No. 1561 of 2001

Aftab Ahmad ...Defendant-Appellant
Versus
Mohd. Soyab and others

 ...Plaintiff-Respondent

Counsel for the Appellant:
Sri Sankantha Rai
Sri Dr. Vinod Kumar Rai
Sri Vijay Kumar Rai

Counsel for the Respondents:
Sri K.N. Rai
Sri R.C. Upadhyay
Sri Vivek Mishra

(A) Indian Evidence Act, 1872-S.-62 and
68 readwith Mohammdan Law-Section
63,
118-unregistered
will-executedregarding entire property-while other
natural heir were alive-whether can such
will be treated a valid document-which
has been executed against the personal
law? Held-'No' unless the original will
deed filed and attested-finding regarding
title on the basis of such will can not
sustained.

Held: Para 15

I now proceed to examine the effect of
failure of the plaintiff to produce the
original will which is the basis of the suit
and its result. Admittedly in the present
case neither the original unregistered
will dated 3.11.1969 was filed by the
plaintiff
nor
the
execution
and
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
850
attestation of the same was proved. The
plaintiff's suit was decreed in clear
violation of specific provisions of the
Code as provided in Order 7 Rule 14. It is
settled law that merely the presentation
of the will is not sufficient unless the
execution and its attestation is proved in
accordance with law. The provisions of
Sections 62 and 68 of the Indian
Evidence Act, 1872 was not followed.
The will was a primary evidence which
was required to be proved in accordance
with Evidence Act before any reliance
could have been placed on the said will
by the courts below. It was in clear
violation of Sections 62 and 68 of the
Indian Evidence Act and the court was
led away by the fact that previously
Mohd. Soyeb contested with his mother
on the question of will and lost the case
up till the stage of the High Court. The
rights
of
the
appellant
was
not
considered, since he was not a party to
the suit. The production of the will in the
suit was all the more necessary for the
reason that the will executed was
against the specific provisions of the
Personal Law. Late Shukarullah could not
bequeath the entire property as his
natural heir Smt. Kaneez Fatma was
alive and had 1/2 share in the property
of her father. In view of Sections 118
and 63 of Mohammadan Law the will
could not be held to be valid whereas in
the instant case the will itself was not
produced
in
the
court.
In
the
circumstances, the court had no occasion
to examine the contents of the will. The
plaintiff was liable to prove the will. The
courts below completely overlooked this
material aspect specially when the case
of the appellant was that no such will
was executed by Late Shukarrullah. The
Apex Court in its decision in the case of
Madhukar D. Shende Vs. Tarabai Aba
Shedage, J.T. 2002(1) S.C. 74 held that
the requirement of proof of a will is the
same as any other document except that
the evidence tendered in proof of a will
should
additionally
satisfy
the
requirement of Section 63 of the Indian
Succession Act, 1925 and Section 68 of
the Indian Evidence Act, 1872. If after
considering the matters before it, that is,
the
facts
and
circumstances
as
emanating from the material available
on record of a given case, conclusions
can be arrived at only then the court
could record a finding in respect of the
will. It is well settled that one who
propounds a will must establish the
competence of the testator to make the
'will' at the time when it was executed.
In the instant case, admittedly 'will'
itself was not on record and the plaintiff
asserted his claim on the basis of a 'will'
on
which
the
courts
below
had
adjudicated previously in a suit to which
the present appellant was admittedly not
a party. More over since the document
itself was not produced in the court, the
courts below could not record a finding
in favour of the plaintiff-respondent
holding him to be an exclusive owner on
the basis of the will. In another case
Ravinder Singh Vs. Janmeja Singh and
others, (2000) 8 Supreme Court Cases,
191, the Apex Court had said that no
evidence can be led on the plea not
raised in the pleadings and no amount of
evidence
can
cure
defect
in
the
pleadings. In the instant case, since the
very document itself does not form a
part of the record, there was no occasion
of leading any evidence and in the
circumstances, I come to a conclusion
that non production of the original will
dated 3.11.1969 is fatal to the plaintiff's
case. First substantial question of law is,
therefore, decided in favour of the
appellant. The courts below committed a
manifest illegality in decreeing the suit
in absence of the original document i.e.
'will', which is the basis of the suit.
Case law discussed:
J.T. 2002 (1) SC-74
2000 (8) SCC-191
AIR 1965 SC-948
AIR 1953 SC-235
AIR 1983 SC-684

(B) Code of Civil Procedure Section 11-
Res-judicata-in previous suit-appellant
was not party-previous suit between the
plaintiff and his mother-in absence of
2 All] Aaftab Ahmad V. Mohd. Soyeb and others 851
the plea of collusive suit-provision of
section 11 not attracted.

Held: Para 18

Case law discussed:

(Delivered by Hon'ble Mrs. Poonam Srivastava, J.)

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 defendant's 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/- 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 plaintiff's 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
plaintiff's claim is an unregistered will
dated 3.11.1969 alleged to be executed by
Hakim Shukarullah (maternal grandfather 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 license 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
can not stand the test of law as according
to Section 118 of the Muslim Law, a will
can not 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 plaintiff's
mother Kaneez Fatma, daughter of
Shukarrullah had instituted Original Suit
Hakim Shukarullah
(died on 11.11.1969)
Kaneez Fatma
I

Mohd.
 Aftab Mohd. Mohd.
Soyeb
 Ahmad Suhail Tufel
(Plaintiff) (Defdt.

 No. 1)

Ishtiaq
Noor
Mumtaz Nikahat Farahad
D-2
D-3
D-4 D-5
 D-6
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
852
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 1982Kaneez Fatma Vs. 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 pairvi 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 resjudicata. 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. & 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 and also on the question of
principles of resjudicata. The trial court
decreed the suit of the plaintiff on
10.8.1994, though issue no. 6 was decided
against him. In the circumstances, the
claim of damages at the rate of Rs. 200/-
per month w.e.f. 15.9.1982 was dismissed
by
the
trial
court.
However,
the
defendant-appellant was directed to put
the plaintiff in possession after vacating
the premises within a period of one
month. This judgment was challenged by
the appellant by filing Civil Appeal No.
69 of 1994 which was also dismissed on
26.11.2001. Both the judgments have
been challenged in the present second
appeal which was admitted on two
substantial questions of law.

(1) Whether the courts below committed
manifest illegality in decreeing the suit
of the plaintiff on the ground of failure
of the plaintiff to produce original will
dated 3.11.1969?
(2) Whether the courts below committed
manifest illegality and its judgment
and decree would be sustained, since
the principle of resjudicata was not
attracted in the facts of the instant
case.

7. The first argument advanced on
behalf of the defendant-appellant is that in
view of the Order 7 Rule 14 C.P.C., when
a suit is instituted on the basis of a
document which is claimed to be in
possession of the plaintiff, he shall enter
the document in the list and shall produce
in the court when the plaint is presented
by him and copy there of is to be filed
along with a plaint. In the instant case
neither the original unregistered will
dated 3.11.1969 was filed by the plaintiff
nor the execution and attestation of the
same was proved. In the circumstances,
the learned counsel has laid emphasis that
the provision of Section 62 of the
Evidence Act, 1872 was not complied
with. The document was necessarily to be
proved by primary evidence, the plaintiff
was liable to prove the same before the
court, in absence of the same, no reliance
could be placed on the document which
2 All] Aaftab Ahmad V. Mohd. Soyeb and others 853
was never produced in the court. Under
the provisions of Section 68 of the Indian
Evidence Act and 63 of Indian Succession
Act, it is mandatory that the original will
should be brought before the Court and
execution and attestation there of was
liable to be proved which the plaintiffs
have failed to do. The second ground for
challenge that the will is not genuine and
not worth placing any reliance is, that the
will has been executed bequeathing the
entire property which is against the
specific provisions of Muslim Law. The
provisions of Section 118 of Muslim Law
is quoted below:-

"Limit
of
testamentary
power:-
A
Mahomedan cannot by will dispose of
more than a third of the surplus of his
estate after payment of funeral expenses
and debts. Bequests in excess of the legal
third cannot take effect, unless the heirs
consent thereto after the death of the
testator (e)."

8. Sri Sankatha Rai has also
challenged
the
plaintiff's
case
alternatively that if the will is ignored
then according to the order of inheritance
when Shukarullah died on 3.11.1969, his
natural heir was his daughter Smt. Kaneez
Fatma who was entitled to inherit half
share of the property of her father. The
remaining half share would go to the
other co-sharer i.e. sons of Kaneez Fatma.
This argument has been advanced on the
basis of Section 63 of Muslim Law. The
scheduled along with Section 63 as
detailed in the Act (Mohammadan Law of
Mulla) provide distribution of respective
shares. It has been argued that Smt.
Kaneez
Fatma,
daughter
of
Late
Shukarullah will inherit half share and the
remaining half share would go to the
sharers i.e. sons of Kaneez Fatma.

9. In the circumstances, counsel for
the appellant has emphatically disputed
the existence of the will which was not
produced before the court and in absence
of the same, the courts below committed a
substantial error of law in accepting the
version of the plaintiffs without there
being any legal evidence to come to the
conclusion that Late Shukarullah had
bequeathed the entire property to the
plaintiffs. Sri Rai has further submitted,
assuming that the will would have been
brought before the court even then it
could not be accepted for the reason that it
was against the specific provision of
Personal Law. Only one third of the
property could have been bequeathed and
specially when the natural heir was alive,
the entire property could not be given to
the plaintiff to the exclusion of the other
heirs who are legally entitled under the
Personal Law. Besides the defendant is
also entitled to his share in the remaining
1/2 share in absence of a will.

10. The claim of the appellant in the
pleadings is that in the North of the
disputed house he has got map sanctioned
in the year 1969 on the open land and got
the constructions made. The existence of
the will was specifically denied. The
plaintiff
had
amended
his
plaint
subsequently
and
stated
that
the
defendant-appellant was residing in the
disputed premises as a licensee and since
the permission has been withdrawn, they
are no more entitled to remain in
occupation. The appellant had also tried
to dispute the will on an assertion that
Hakim Shukarullah was insane before his
death and his mental condition was
precarious. He had not executed any will,
therefore, the will is forged. Besides, the
plea of adverse possession was taken by
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
854
the defendant which the courts below did
not accept on the ground that the plea of
adverse possession has not been taken in
written statement and also extent of
period and nature of adverse possession
has also not been given. Since the
appellant has failed to specify and
establish as to on what date the adverse
possession began, it can not be said that
he has perfected his title, on the basis of
said
finding,
the
appeal
was
also
dismissed.

11. The stand taken by the plaintiffrespondent on the question of resjudicata
has been accepted by the courts below
and it was concluded that since all the
objections raised in respect of execution
of a will was raised and decided in the
previous proceedings vide Suit No. 154 of
1975- Kaneez Fatma Vs. Mohd Soyeb,
Paper No. 19-C which was decreed in
favour of Mohd. Soyeb. The appeal No.
206 of 1980-Kaneez Fatma Vs. Mohd
Soyeb was dismissed by the appellate
court vide judgment and decree dated
22.3.1982. The second appeal against the
said order vide Appeal No. 2008 of 1982,
Paper No. 112-C was also dismissed on
30.8.1989. In compliance of the said
judgment, the mutation suit was filed
which was also decided by the Naib
Tehsildar, Ballia on 13.3.1989. The courts
below concluded that the matter has
already been decided up till the stage of
Hon'ble High Court, it will operate as
resjudicata and can not be gone into in the
instant
suit
and
consequently
the
defendant's appeal was dismissed.

12. Learned counsel for the
appellant has argued that since the
appellant was not a party to the previous
suit, it would not operate as resjudicata
and it can very well be adjudicated in the
present appeal.

13. Since the appeal has been
admitted on the two substantial questions
of law, I proceed to decide the first
question as to whether the courts below
committed an illegality in decreeing the
suit of the plaintiff even though he failed
to produce original will dated 3.11.1969.
It is admitted position that the original
will was not produced by the plaintiff
which was the basis of the suit. Learned
counsel has emphatically argued that
Order 7 Rule 14 C.P.C. clearly makes it
mandatory that the plaintiff shall produce
in the court a document which is the basis
of the suit and it shall be filed along with
plaint. For ready reference Order 7 Rule
14 C.P.C. is quoted below:-

"Production of document on which
plaintiff sues or relies-
(1) Where a plaintiff sues upon a
document or relies upon a document
in his possession or power in support
of his claim, he shall enter such
documents in a list, and shall
produce it in court when the plaint is
presented by him, and shall, at the
same time deliver the document and
a copy thereof, to be filed with the
plaint.
(2) Where any such document is not in
the possession or power of the
plaintiff, he shall, wherever possible,
state in whose possession or power it
is.
(3) A document which ought to be
produced in Court by the plaintiff
when the plaint is presented, or to be
entered in the list to be added or
annexed to the plaint but is not
produced or entered accordingly,
shall not without the leave of the
2 All] Aaftab Ahmad V. Mohd. Soyeb and others 855
Court, be received in evidence on his
behalf at the hearing of the suit.
(4) Nothing in this rule shall apply to
document produced for the cross
examination
of
the
plaintiff's
witnesses, or, handed over to a
witness
merely
to
refresh
his
memory."

14. Order 14 Rule 3 C.P.C. specifies
that on what material issues may be
framed in a suit. A perusal of the Order 14
Rule 3 C.P.C. specifies that the issues are
to be framed on the basis of the
allegations made by parties in the
pleadings or in answers to interrogatories
delivered in the suit and contents of
documents produced by either party.
Order 14 Rule 3 C.P.C. is quoted below:-

"Materials from which issues may be
framed;- The Court may frame the issues
from all or any of the following materials:
(a) allegations made on oath by the
parties, or by any persons present on
their behalf, or made by the pleaders
of such parties;
(b) allegations made in the pleadings or
in
answers
to
interrogatories
delivered in the suit;
(c) the contents of documents produced
by either party

15. I now proceed to examine the
effect of failure of the plaintiff to produce
the original will which is the basis of the
suit and its result. Admittedly in the
present
case
neither
the
original
unregistered will dated 3.11.1969 was
filed by the plaintiff nor the execution and
attestation of the same was proved. The
plaintiff's suit was decreed in clear
violation of specific provisions of the
Code as provided in Order 7 Rule 14. It is
settled law that merely the presentation of
the will is not sufficient unless the
execution and its attestation is proved in
accordance with law. The provisions of
Sections 62 and 68 of the Indian Evidence
Act, 1872 was not followed. The will was
a primary evidence which was required to
be proved in accordance with Evidence
Act before any reliance could have been
placed on the said will by the courts
below. It was in clear violation of
Sections 62 and 68 of the Indian Evidence
Act and the court was led away by the
fact
that
previously
Mohd.
Soyeb
contested with his mother on the question
of will and lost the case up till the stage of
the High Court. The rights of the
appellant was not considered, since he
was not a party to the suit. The production
of the will in the suit was all the more
necessary for the reason that the will
executed
was
against
the
specific
provisions of the Personal Law. Late
Shukarullah could not bequeath the entire
property as his natural heir Smt. Kaneez
Fatma was alive and had 1/2 share in the
property of her father. In view of Sections
118 and 63 of Mohammadan Law the will
could not be held to be valid whereas in
the instant case the will itself was not
produced
in
the
court.
In
the
circumstances, the court had no occasion
to examine the contents of the will. The
plaintiff was liable to prove the will. The
courts below completely overlooked this
material aspect specially when the case of
the appellant was that no such will was
executed by Late Shukarrullah. The Apex
Court in its decision in the case of
Madhukar D. Shende Vs. Tarabai Aba
Shedage, J.T. 2002(1) S.C. 74 held that
the requirement of proof of a will is the
same as any other document except that
the evidence tendered in proof of a will
should
additionally
satisfy
the
requirement of Section 63 of the Indian
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
856
Succession Act, 1925 and Section 68 of
the Indian Evidence Act, 1872. If after
considering the matters before it, that is,
the facts and circumstances as emanating
from the material available on record of a
given case, conclusions can be arrived at
only then the court could record a finding
in respect of the will. It is well settled that
one who propounds a will must establish
the competence of the testator to make the
'will' at the time when it was executed. In
the instant case, admittedly 'will' itself
was not on record and the plaintiff
asserted his claim on the basis of a 'will'
on
which
the
courts
below
had
adjudicated previously in a suit to which
the present appellant was admittedly not a
party. More over since the document itself
was not produced in the court, the courts
below could not record a finding in favour
of the plaintiff-respondent holding him to
be an exclusive owner on the basis of the
will. In another case Ravinder Singh Vs.
Janmeja Singh and others, (2000) 8
Supreme Court Cases, 191, the Apex
Court had said that no evidence can be led
on the plea not raised in the pleadings and
no amount of evidence can cure defect in
the pleadings. In the instant case, since
the very document itself does not form a
part of the record, there was no occasion
of leading any evidence and in the
circumstances, I come to a conclusion that
non production of the original will dated
3.11.1969 is fatal to the plaintiff's case.
First substantial question of law is,
therefore, decided in favour of the
appellant. The courts below committed a
manifest illegality in decreeing the suit in
absence of the original document i.e.
'will', which is the basis of the suit.

16. The second substantial question
of law is regarding application of
principles of resjudicata as the matter was
already adjudicated upon in the previous
Suit No. 154 of 1975. Section 11 of the
Civil Procedure Code defines resjudicata
which is quoted below:-

"Res Judicata- No Court shall try any
suit or issue in which the matter directly
and substantially in issue has been
directly and substantially in issue in a
former suit between the same parties, or
between the parties under whom they or
any of them claim, litigating under the
same title, in a Court competent to try
such subsequent suit or the suit in which
such issue has been subsequently raised,
and has been heard and finally decided by
such Court."

17. The essence of the principles of
resjudicata is that the matter should be
directly
and
substantively
an
issue
decided in a previous suit between the
same parties. In the present case, it is
admitted fact that the will was being
contested by the mother of Smt. Kaneez
Fatma with Mohd. Soyeb. A perusal of
the two judgments of the courts below
reveals that as many as 8 issues were
framed but not a single issue was on the
question
of
resjudicata.
The
lower
appellate court itself has carved out a case
and recorded a finding that since the
previous suit was contested between Smt.
Kaneez Fatma and Mohd. Soyeb up till
the stage of High Court, the appellant can
not agitate the same in the present appeal
and held to be barred by resjudicata and
finally on this ground alone dismissed the
appeal. The trial court has also not framed
any issue on the question of resjudicata
but since the appeal has been dismissed
on the ground of resjudicata alone, the
court should have framed the issue and
remanded the matter to the trial court.
However since the second substantial
2 All] Aaftab Ahmad V. Mohd. Soyeb and others 857
question of law is a legal plea and lower
appellate court decided to consider the
question of resjudicata was well within its
right, but perusal of the impugned
judgment shows that he has completely
failed to consider and record a finding on
the aspect that in the previous proceedings
the appellant was not a party then in view
of the settled principle enunciated by the
Apex Court as well as various High Court
that previous litigation should necessarily
be between the same parties. He was led
away on this question alone that since the
matter has already been adjudicated upon
in previous suit between the mother and
the plaintiff, it need not be decided in the
second suit. Counsel for the appellant has
placed reliance on a number of decisions,
Isher Singh Vs. Sarwan Singh and
others, A.I.R. 1965 S.C. page 948. In
the said case, the Apex Court while
applying principles of Section 11 Civil
Procedure Code had categorically held
that all the five conditions necessary to
attract the provisions of Section 11 C.P.C.
was satisfied whereas in the present case
the appellant was not a party to the suit
and in the circumstances, no issue was
framed in regard to right of the present
appellant. No evidence was led on the
said question as he was not a party and
consequently no finding was recorded so
for as the right and share of the appellant
is concerned. The second case relied upon
by the counsel for the appellant is Trojan
& Co. Vs. RM. N.N. Nagappa Chettiar,
A.I.R. 1953 S.C. page 235. The second
argument
so
far
the
question
of
applicability of principle of resjudicata is
concerned, as advanced by Sri Sankatha
Rai Advocate that it is well settled
principle of law that the judgment of the
former suit is not covered by the
provisions of Sections 40, 41, 42 and 43
of the Evidence Act and it is wholly
irrelevant and not admissible in evidence.
It is held by the Apex Court in the case of
State of Bihar and others Vs. Sri Radha
Krishna Singh and others, A.I.R. 1983
S.C. page 684 that where there is a
specific
provision
covering
the
admissibility of a document, it is not open
to the court to call into aid other general
provisions in order to make a particular
document admissible. In other words, if a
judgment is not admissible as not falling
within the ambit of Sections 40 to 42, it
must fulfil the conditions of Section 43
otherwise it cannot be relevant under
Section 13 of the Evidence Act. It is, thus
clear that former decision must be
between the same parties otherwise the
previous decision has no relevancy in the
subsequent case. In another case Siddu
Venkappa Devadiga Vs. Smt. Rangu S.
Devadiga and others, A.I.R. S.C. page
89, the Apex Court has held that it is well
settled that the decision of a case cannot
be based on grounds outside the plea of
the parties, and in that it is the case
pleaded which has to be found.

18. Learned counsel for the
respondents had taken the plea that since
the appellant has not come up with the
case that the previous suit between Smt.
Kaneez Fatma and Mohd Soyeb was
collusive suit as such in absence of such
plea the finding of the previous suit is not
binding and Section 11 C.P.C. is not
attracted. The question of validity of the
'will' can not be gone into for a second
time as the appellant had taken a defence
in the suit filed by the plaintiffrespondent.

19. Having heard the counsel for
both the parties and after giving careful
consideration to the entire facts and
circumstances, I hold that the principle of
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
858
resjudicata is not applicable to the present
case and second substantial question of
law is also decided in favour of the
appellant.

20. In view of the discussions above,
the judgment and decree of the courts
below dated 26.11.2001 and 10.8.1994
are set aside. The suit is dismissed and the
present second appeal is allowed with
costs.

 Appeal Allowed.
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