# Central Bank of India and others v. Dinesh Kumar Agarwal and others

- **Citation:** (2009) 1 ILRA 171
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-01-23
- **Case number:** Second Appeal No. 1421 of 2007
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/central-bank-of-india-and-others-v-dinesh-kumar-agarwal-and-others-41338
- **Pages:** 7

## Headnote

172 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

Registration
Act
1908-Section-77Registration of will-on refusal by subRegistrar-whether
civil
suit
maintainable-held-'No'-aggrieved
party
may take recourse of writ under Art.
226/227.

Held: Para 14

The lower appellate court has passed the
decree in complete ignorance of the law
laid down by the aforesaid full bench
decision of the Andhra Pradesh High
Court and as such where such a decree
has been passed in ignorance of settled
law/precedent there is no reason to
deny its correction in appeal or second
appeal. Accordingly, I answer the first
substantial question of law in favour of
the appellant and hold that a suit under
Section 77 of the Act for a decree
directing to register a 'will' is not
maintainable.
Case law discussed:
AIR 1959 AP 626, 1997 (1) AWC 346

## Text

1 All] Central Bank of India and others V. Dinesh Kumar Agarwal and others

171
court while dismissing the suit directed
the bank to release the F.D.R. along with
the accruing interest in favour of
respondent Nos.2 and 3.

4. Aggrieved, by the dismissal of the
suit, the plaintiff filed a First Appeal
before the High Court which was
subsequently transferred to the lower
appellate
court.
The
appeal
was
eventually dismissed by judgment dated
15.11.2008 and the decree of the trial
court was affirmed.

5. The defendant bank has now filed
the present second appeal contending that
the direction of the trial court to pay the
interest on the disputed draft amount was
perverse and was liable to be set aside.
The defendants submitted that the Court
without ascertaining itself and without
satisfying itself that the disputed draft was
not presented for encashment by the
defendants for its conversion into F.D.R.,
no F.D.R. came into existence and
therefore, consequently the direction for
payment of interest could not arise.

6. A preliminary objection has been
raised by the caveators with regard to the
maintainability
of
the
appeal.
The
caveators submitted that the defendantsappellant bank had neither filed a First
Appeal against the decree of the trial
court nor had filed any cross-objection
with regard to that part of the finding of
the trial court directing the bank to get the
F.D.Rs. prepared in the name of the Court
which decision had become final and
therefore, no second appeal could be filed
under Section 100 of the C.P.C.

7. Having considered the submission
of the learned counsel for the parties, this
Court is of the opinion that the objection
raised by the caveators has some force.
Nothing prevented the appellant bank
from filing its own appeal or taking crossobjection against that part of the decree of
the trial court by which it directed the
bank to prepare F.D.R. in the name of the
Court. The dismissal of the appeal of the
plaintiff
has
not
resulted
in
any
modification or interference in the decree
of the trial court. The appellate court has
only affirmed the decree of the trial court.
In my opinion, on account of the failure
of the bank to file a first appeal against
the decree of the trial court or to take a
cross-objection, the bank has allowed that
part of the decree of the trial court to
achieve a finality which cannot be
allowed to be raised or questioned in a
second appeal. Consequently, this Court
is of the opinion that the second appeal
filed by the defendant-appellant bank is
not maintainable and is dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.01.2009

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Second Appeal No. 1421 of 2007

Ramapati Tiwari

...Appellant
Versus
The District Registrar, Allahabad and
others

 ...Plaintiff-Respondents

Counsel for the Appellant:
Sri V.K.S. Chaudhary
Sri Deo Prakash Singh
Sri Vishnu Gupta

Counsel for the Respondents:
Sri M.D. Singh "Shekhar"
Sri P.K. Kesari
Sri Radhey Shyam
172 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

Registration
Act
1908-Section-77Registration of will-on refusal by subRegistrar-whether
civil
suit
maintainable-held-'No'-aggrieved
party
may take recourse of writ under Art.
226/227.

Held: Para 14

The lower appellate court has passed the
decree in complete ignorance of the law
laid down by the aforesaid full bench
decision of the Andhra Pradesh High
Court and as such where such a decree
has been passed in ignorance of settled
law/precedent there is no reason to
deny its correction in appeal or second
appeal. Accordingly, I answer the first
substantial question of law in favour of
the appellant and hold that a suit under
Section 77 of the Act for a decree
directing to register a 'will' is not
maintainable.
Case law discussed:
AIR 1959 AP 626, 1997 (1) AWC 346

(Delivered by Hon'ble Pankaj Mithal, J.)

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.
1 All] Ramapati Tiwari V. The District Registrar, Allahabad and others

173
4. However, apart from the above,
on the preliminary objection raised,
another important substantial question of
law arises in this appeal ie., whether the
appellant has any legal right to oppose the
registration of the 'will' and in turn to
maintain the appeal?

5. Both the above legal questions are
substantial in nature as they are debatable
and have not been settled previously by
any decision of the Supreme Court (at
least none has been brought to my notice).
They may also ultimately affect the rights
of the parties in the immovable properties
covered by the 'will'. Besides, the above
questions are pure questions of law which
can be decided effectively on the admitted
facts alone without the aid of any
evidence. Learned counsel for the parties
on being made known of these two
questions, have eloquently addressed the
Court on merit and therefore, I have
ventured to proceed and decide the appeal
on the above aspects finally at the
admission stage.

6. The maintainability of the suit is a
pure question of law which goes to the
root of the jurisdiction rendering the
decree so passed in such a suit to be a
nullity. Therefore, even if such an
objection/ground was not raised in the
Courts below in so many words it can
certainly be raised and considered in
second appeal before the High Court.

7. The Registration Act, 1908
(hereinafter
in
short
as
an
'Act')
contemplates two types of documents for
the purposes of registration. First, the
documents
of which registration is
mandatory under law. These documents
have been enumerated under Section 17
of the Act. The other are documents of
which registration is optional. The list of
such documents is given in Section 18 of
the Act. Registration of ''wills'' is not
compulsory and it is only optional in
nature in view of Section 18 (e) of the
Act. The Act does not prescribe any penal
consequences for non registration of
documents mentioned in Section 18 of the
Act including ''wills''.

8. The general procedure required to
be followed by the registering authority
for registering a document is provided in
Section 71 to 76 of part XII of the Act.
The registering authority is not obliged to
register every document and it has power
to order for refusal of registration by
recording reasons in a book kept for the
purpose. Section 72 of the Act provides
for an appeal to the Registrar against the
order of refusal so passed by the
registering authority provided the refusal
is not on the ground of denial of
execution. Simultaneously, in certain
circumstances
where
the
registering
authority refuses to register a document a
provision for an application to the
Registrar has been made in Section 73 of
the Act. By virtue of Section 76 (2) the
order passed by the Registrar is final as no
further appeal has been provided against
the order of the Registrar so passed either
on appeal or on the application. However,
a suit within 30 days of such refusal by
the Registrar for a decree directing the
document to be registered has been
provided under Section 77 of the Act.

9.

The
aforesaid
provisions
contained in part XII from Sections 71 to
77 are of general nature. They are
applicable to all documents presented for
registration. However, in so far as
registration of ''wills'' is concerned, the
Act contains separate special provisions
174 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

under part VIII ie. Sections 40 and 41 of
the Act.

10. Section 40 read with Section 41
of the Act provides that the testator or
after his death any person claiming as
executor or otherwise may present a 'will'
for registration before the Registrar or
Sub-Registrar and it shall be registered if
the registering officer is satisfied that the
'will' was executed by the testator; the
testator is dead; and the person presenting
the 'will' is entitle to present the same.
Therefore, for the registration of 'will' on
the death of the testator following three
conditions are required to be satisfied;

(i) Execution of the 'will' by the testator;
(ii) Death of the testator; and
(iii) The person presenting the 'will' for
registration is entitle to present the same.

11. It is only on the satisfaction of
the Registering Authority that all the
above three conditions have been satisfied
that a 'will' can be registered after the
death of the testator, otherwise the
Registering Authority can refuse its
registration.

12. A combined reading of the
provisions of part VIII and part XII of the
Act indicates that the legislature has
intentionally placed the ''wills'' into a
separate docket distinguishing ''wills''
from
other
documents
of
which
registration
is
either
mandatory
or
optional. The purpose of keeping ''wills''
aloof from other documents is simple.
The genuineness and the due execution of
the ''wills'' is normally required to be
established by a probate case by a petition
for probate under Section 276 of the
Indian Succession Act, 1925 or in a
regular civil suit before a civil Court
where such a 'will' is produced for
claiming rights and is disputed. In such a
probate proceedings or a suit a definite
'lis' is required to be adjudicated which is
generally done after notices to the
authorities and the public including the
parties concerned. The due execution of
the 'will' so presented or its genuineness is
thereupon decided in accordance with the
provisions of the Succession Act. All this
is not done in a suit under Section 77 of
the Act wherein no 'lis' with regard to the
'will' is decided but the matter is confined
only to the registration or non-registration
of the 'will'. Therefore, it appears that the
intention of the legislature by providing
special provisions regarding registration
of ''wills'' under Section 40/41 of the Act
is to keep the ''wills'' out of the purview of
Section 77 of the Act for the purposes of
registration. There appears to be no need
to subject ''wills'' to proceedings before
Civil Court twice; first for registration and
then with regard to its genuineness and
due execution when the registration has
no impact whatsoever on the document
itself.

13. Since the registration of ''wills''
is optional in nature and there is no
obligation upon the registering authority
to register ''wills'', it does not appeal to
reason to compel the registering authority
to register the same when the act does not
provides for its mandatory registration.
The person presenting a 'will' for
registration as such has no legally
enforceable right to get a 'will' registered.
Therefore, logically the provisions of
Section 77 of the Act enabling a party
presenting a document for registration to
maintain a suit in the event its registration
is refused by the registering authority and
the District Registrar, would not be
applicable where the document presented
1 All] Ramapati Tiwari V. The District Registrar, Allahabad and others

175
for registration is a 'will'. Therefore, by a
necessary implication Section 77 of the
Act providing for a suit for a decree
directing for the registration of documents
is confined only to documents which are
set out for compulsory registration under
Section 17 of the Act and not to any other
document covered by Section 18 of the
Act.

14. This view of mine finds
complete support from a Full Bench
decision of the Andhra Pradesh High
Court reported in AIR 1959 AP 626
Padala Satya Narayana Murti Vs.
Padala Gangamma and others. In the
aforesaid
decision
it
has
been
categorically and in unequivocal terms
laid down that Section 77 applies only to
instruments falling within ambit of
Section 17 and can have no application to
the ''wills''. I have no reason to deviate
from the above Full Bench decision and
to take a different stand. The lower
appellate court has passed the decree in
complete ignorance of the law laid down
by the aforesaid full bench decision of the
Andhra Pradesh High Court and as such
where such a decree has been passed in
ignorance of settled law/precedent there is
no reason to deny its correction in appeal
or second appeal. Accordingly, I answer
the first substantial question of law in
favour of the appellant and hold that a suit
under Section 77 of the Act for a decree
directing to register a 'will' is not
maintainable.

15. It is another thing that a party
aggrieved
may
take
recourse
to
proceedings under Article 226/227 of the
Constitution of India to challenge the
orders of the registering authority or the
Registrar or to establish his rights on the
basis of such a 'will' either though a
probate petition or in a civil suit when
occasion arise.

16. In support of the second question
learned counsel for the respondent has
placed reliance upon a decision of the
Division Bench of this Court reported in
1997 (1) AWC 346 Kumari Sushila
Saxena
Vs.
Sub-Registrar,
Sahajahanpur and others wherein while
considering the provisions of Section
40/41 of the Act the Court held that
registration of a document is merely a
notification of the fact that such a
document has been executed. It has
nothing to do with the legality of the
transaction covered by the document
which may be open to challenge by the
affected person in appropriate forum.
Therefore, the matter of registration of a
'will' is basically a one between the
presenter and the registering authority and
no other person is legally entitle to object
to its registration.

17. The authority of Kumari Sushila
Saxena (Supra) relied upon by the
learned
counsel
for
the
plaintiff
respondent operates in a totally different
facts and set of circumstances. It is in the
proceedings under Section 40/41 of the
Act which are of administrative or a quasi
judicial nature that it has been held that
the matter of registration of a 'will' is
between
a
party
presenting
it
for
registration and the registering authority.
It would have no application to judicial
proceedings of a suit of a civil nature
issuing a decree. Accordingly, the above
authority is of no assistance to the
plaintiff respondent.

18. In a civil suit of any nature there
has to be a contesting party. In the event it
is held that the appellant has no right to
176 INDIAN LAW REPORTS ALLAHABAD SERIES [2009

oppose a registration of a 'will' in a suit
under Section 77, if at all it is
maintainable, it would mean that the suit
would go uncontested as naturally the
authorities enjoined upon to register a
document have no interest in the subject
matter and would not therefore, likely to
put up any resistance thus, allowing the
suit to be decreed virtually ex-parte. In
other words, it would mean that any suit
filed under Section 77 of the Act for a
decree for getting a 'will' registered would
in all probabilities would be decreed in
the absence of any opposition. This
cannot be the intention of the legislature
therefore, the dictum of law as laid down
by the division bench in Km. Sushila
Saxena (Supra) has to be confined to
proceedings under Section 40/41 of the
Act and not where the matter has been
agitated in a suit.

19. Moreover, in the instant suit the
appellant was impleaded as one of the
respondents and was allowed to contest
the proceedings. He was a party to the
suit. The order of allowing his implement
became final and conclusive as it was
neither challenged earlier nor is being
assailed by any cross objection or an
appeal. Therefore, a person who is a party
to the suit naturally has a right to prefer
an appeal against the decree passed in
such a suit/appeal.

20. Accordingly, the contention of
the respondents that the appellant had no
right to oppose the registration of the 'will'
in the suit and to prefer this second
appeal, has no merit and is rejected.

21. Above all, the second question
of
law
as
formulated
looses
all
significance once the first question has
been answered and it is held that the suit
itself was not maintainable.

22. In the totality of the facts and
circumstances of the case the two
substantial questions of law formulated
above are answered by me as under :

1. Whether a suit under Section 77 of
the
Registration
Act,
1908
for
posthumous registration of a 'will' is
maintainable ?

The answer to this question as
discussed above is that the suit is not
maintainable as the provisions of Section
77 of the Act are applicable only in
respect of the documents of which
registration is mandatory under Section
17 of the Act.

2. Whether the appellant has any legal
right to oppose the registration of the 'will'
and in turn to maintain the appeal ?

23. In view of the answer to
question no. 1 this question losses its
significance. Nonetheless, it is held that
though a person like appellant has no
right to oppose the registration of a 'will'
in proceedings under Section 40/41 of the
Act but he certainly has a right to defend
the suit.

24. Thus, the Court is of the opinion
that his second appeal deserves to be
allowed and is accordingly allowed. The
decree passed by the lower appellate
Court dated 17.10.2007 in Civil Appeal
No. 298 of 1994 decreeing the original
suit No. 289 of 1982 Girja Prasad Tiwari
Vs. Zila Nibandhak and others is set a
side.
1 All] Kameshwar Prasad V. U.P. Public Service Commission, Allahabad and others

177
25. The parties are directed to bear
their own costs.

Appeal allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.02.2009

BEFORE
THE HON'BLE S.RAFAT ALAM, J.
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 2536 of 2009

Kameshwar Prasad

...Petitioner
Versus
U.P. Public Service Commission and
others

 ...Respondents

Counsel for the Petitioner:
Sri Kameshwar Prasad (In Person)
Sri Shiv Kant Pandey

Counsel for the Respondents:
Sri Amit Sthalekar
Sri Pushpendra Singh
S.C.

U.P. Judicial Service Rules 2001-Rule 15Reduction of number of vacancies-355 of
Civil
Judge
(J.D.)
post
advertisedselection list finalized by commission-by
notification dated 23.4.2008 15 posts
reduced to give way to the candidates of
Sanjay Singh case decided by Supreme
Court-held-valid reason for revision of
vacancies-No question of violation of
fundamental rights.

Held: Para 10

In this case it is not disputed that the
number of vacancies have been reduced
on
account
of
appointments
made
pursuant to the directions of the Apex
Court in the case of Sanjay Singh (supra)
which is admittedly a valid reason for
revising
the
number
of
vacancies
determined under Rule 15 of 2001 Rules.
Case law discussed:
2007(2) SC 534, 1991(3) SCC 47
(Delivered by Hon'ble S. Rafat Alam, J.)

1. Heard Sri Shiv Kant Pandey,
learned counsel for the petitioner, Sri
Puspendra Singh, for respondent no. 1, Sri
Amit Sthalekar, for respondent no. 2 and
learned Standing Counsel for respondent
no. 3.

2. Petitioner through this writ
petition
under
Article
226
of
the
Constitution of India is seeking a writ of
certiorari
for
quashing
the
revised
requisition sent by High Court i.e.
respondent no. 2 to the State Government
on 23.04.2008 reducing the vacancies of
Civil Judge (Junior Division), 2006 from
355 to 339. He has further sought a writ
of
mandamus
commanding
the
respondent-Commission to appoint the
petitioner on the post of Civil Judge
(Junior Division) against 15 seats so
reduced by the respondents illegally in
contravention of the mandate of Hon'ble
Apex Court in Sanjay Singh and
another
Vs.
U.P.
Public
Service
Commission, Allahabad and another,
2007(2) SC 534 as well as this Court in
Writ Petition No. 51491 of 2007 (Sanjay
Kumar Singh and others Vs. State of
U.P. and others) decided on 17.01.2008.

3. Sri Pandey contended that for
recruitment to the post of Civil Judge
(Junior Division) the government in
consultation
with
the
High
Court
determined 355 vacancies under Rule 15
of U.P. Judicial Service Rules, 2001
(hereinafter referred to as the "2001
Rules") which were requisitioned to the
Commission for holding examination in
accordance with the provisions of 2001
Rules but subsequently in order to give
appointment to some other candidates
pursuant to the Hon'ble Supreme Court