# Khubi Ram v. Bhoop Singh & Ors

- **Citation:** (2025) 9 ILRA 964
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-09-26
- **Case number:** First Appeal No. 743 of 2024
- **Bench:** Sandeep Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/khubi-ram-v-bhoop-singh-ors-53788
- **Pages:** 6

## Headnote

Gurja Shanker Mishra, Pratiksha Rai

Issue for Consideration
Issue pertains to whether the trial court was
justified in dismissing the plaintiff's suit for
declaration of ownership based on registered
Will dated 20.01.2011, on the ground that Will
was not proved in accordance with ss. 68 and
69 of Evidence Act, 1872, and whether plaintiff,
having failed to examine any attesting witness
or establish legal proof of execution, could
validly claim ownership of disputed property.

Headnotes
Indian Evidence Act, 1872 - ss. 68, 69 -
Plaintiff - appellant, instituted Original
Suit No. 446 of 2020 before Court of
Additional District Judge, Court No. 9,
Ghaziabad,
seeking
declaration
of
ownership over house No. 85-A, Nagar
Nigam No. 27, situated in Anand Vihar
Colony,
Ghaziabad,
on
the
basis
of
registered
Will
dated
20.01.2011,
allegedly executed by his father, in his
favour - It was averred that appellant's
father, being absolute owner of said
property purchased through a sale deed
dated
20.04.1977,
executed
Will
voluntarily and in sound mental health,
and upon his death on 16.12.2011,
plaintiff
became
the
sole
owner
-
Defendants, who are his real brothers,
allegedly refused to acknowledge his
ownership,
compelling
him
to
seek
declaratory relief
-
Defendants
were
proceeded ex parte, and trial court, by
judgment and decree dated 25.01.2024,
dismissed the suit, holding that plaintiff
failed to prove the Will in accordance with
ss. 68 and 69 of Evidence Act, 1872, as he
neither
produced
original
Will
nor
examined
any
attesting
witness
-
Aggrieved
thereby,
plaintiff
preferred
instant
First
Appeal
challenging
the
finding of trial court, contending that Will
being registered carried a presumption of
authenticity and did not require further
proof.

Held: Plaintiff's claim of ownership of disputed
property
rests
on
registered
Will
dated
20.01.2011, purportedly executed by his father -
However, he produced only a certified copy in
trial court without explaining the non-production
of original - As the law requires proof of original
Will and permits secondary evidence only upon
showing that the original is lost, destroyed, or
not in his possession - Plaintiff's failure to lay
such
foundation
renders
certified
copy
inadmissible - Consequently, alleged Will was
not proved - There are two attesting witnesses
of alleged Will, but plaintiff has not examined
any of them in trial court in order to prove
execution of Will - Plaintiff has averred in trial
court that attesting witness Ishwar Dayal has
died and has also disclosed that other attesting
witnesses Smt. Neema Singh does not want to
give evidence in support of plaintiff in court
since she is the wife of defendant No.4 - It is
evident that one of attesting witness Smt.
Neema Singh is alive, but she has not being
examined, or she is not willing to appear in
court, as such, Will has not been proved in
accordance with Section 68 of Evidence Act -
Since, one attesting witness of alleged Will is
alive, provisions of Section 69 of Evidence Act
are not applicable - As such, alleged Will cannot
be read in evidence and thus, plaintiff cannot be
declared owner of disputed property - Parties
are real brothers disputing their father's
property - As plaintiff failed to establish title on
the basis of alleged Will dated 20.01.2011, trial
court rightly dismissed suit ex parte - No ground
is made out for appellate interference - Appeal
9 All. Khubi Ram Vs. Bhoop Singh & Ors.
965
lacks merit and dismissed. [Paras 10, 14, 15] (E13)

Case Law Cited
Ramesh Chand(D) Through LRS. v. Suresh
Chand & Another, 2025 SCC OnLine SC 1879
- referred to

List of Acts
Indian Evidence Act, 1872

List of Keywords
First Appeal u/s 96 CPC; Ex parte impugned
judgment and decree; Plaintiff's suit for relief of
declaration; Registered Will dated 20.01.2011;
Owner of disputed property; Burden was on
plaintiff to prove Will; Attesting witness of the
Will; Execution of Will; Ss. 68, 69 of Evidenc

## Text

964 INDIAN LAW REPORTS ALLAHABAD SERIES
(2025) 9 ILRA 964
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.09.2025

BEFORE

THE HON'BLE SANDEEP JAIN, J.

First Appeal No. 743 of 2024

Khubi Ram ...Appellant
Versus
Bhoop Singh & Ors. ...Respondents

Counsel for the Appellant:
Sri Prathamesh Upadhyay, Tarun Agarwal

Counsel for the Respondents:
Gurja Shanker Mishra, Pratiksha Rai

Issue for Consideration
Issue pertains to whether the trial court was
justified in dismissing the plaintiff's suit for
declaration of ownership based on registered
Will dated 20.01.2011, on the ground that Will
was not proved in accordance with ss. 68 and
69 of Evidence Act, 1872, and whether plaintiff,
having failed to examine any attesting witness
or establish legal proof of execution, could
validly claim ownership of disputed property.

Headnotes
Indian Evidence Act, 1872 - ss. 68, 69 -
Plaintiff - appellant, instituted Original
Suit No. 446 of 2020 before Court of
Additional District Judge, Court No. 9,
Ghaziabad,
seeking
declaration
of
ownership over house No. 85-A, Nagar
Nigam No. 27, situated in Anand Vihar
Colony,
Ghaziabad,
on
the
basis
of
registered
Will
dated
20.01.2011,
allegedly executed by his father, in his
favour - It was averred that appellant's
father, being absolute owner of said
property purchased through a sale deed
dated
20.04.1977,
executed
Will
voluntarily and in sound mental health,
and upon his death on 16.12.2011,
plaintiff
became
the
sole
owner
-
Defendants, who are his real brothers,
allegedly refused to acknowledge his
ownership,
compelling
him
to
seek
declaratory relief
-
Defendants
were
proceeded ex parte, and trial court, by
judgment and decree dated 25.01.2024,
dismissed the suit, holding that plaintiff
failed to prove the Will in accordance with
ss. 68 and 69 of Evidence Act, 1872, as he
neither
produced
original
Will
nor
examined
any
attesting
witness
-
Aggrieved
thereby,
plaintiff
preferred
instant
First
Appeal
challenging
the
finding of trial court, contending that Will
being registered carried a presumption of
authenticity and did not require further
proof.

Held: Plaintiff's claim of ownership of disputed
property
rests
on
registered
Will
dated
20.01.2011, purportedly executed by his father -
However, he produced only a certified copy in
trial court without explaining the non-production
of original - As the law requires proof of original
Will and permits secondary evidence only upon
showing that the original is lost, destroyed, or
not in his possession - Plaintiff's failure to lay
such
foundation
renders
certified
copy
inadmissible - Consequently, alleged Will was
not proved - There are two attesting witnesses
of alleged Will, but plaintiff has not examined
any of them in trial court in order to prove
execution of Will - Plaintiff has averred in trial
court that attesting witness Ishwar Dayal has
died and has also disclosed that other attesting
witnesses Smt. Neema Singh does not want to
give evidence in support of plaintiff in court
since she is the wife of defendant No.4 - It is
evident that one of attesting witness Smt.
Neema Singh is alive, but she has not being
examined, or she is not willing to appear in
court, as such, Will has not been proved in
accordance with Section 68 of Evidence Act -
Since, one attesting witness of alleged Will is
alive, provisions of Section 69 of Evidence Act
are not applicable - As such, alleged Will cannot
be read in evidence and thus, plaintiff cannot be
declared owner of disputed property - Parties
are real brothers disputing their father's
property - As plaintiff failed to establish title on
the basis of alleged Will dated 20.01.2011, trial
court rightly dismissed suit ex parte - No ground
is made out for appellate interference - Appeal
9 All. Khubi Ram Vs. Bhoop Singh & Ors.
965
lacks merit and dismissed. [Paras 10, 14, 15] (E13)

Case Law Cited
Ramesh Chand(D) Through LRS. v. Suresh
Chand & Another, 2025 SCC OnLine SC 1879
- referred to

List of Acts
Indian Evidence Act, 1872

List of Keywords
First Appeal u/s 96 CPC; Ex parte impugned
judgment and decree; Plaintiff's suit for relief of
declaration; Registered Will dated 20.01.2011;
Owner of disputed property; Burden was on
plaintiff to prove Will; Attesting witness of the
Will; Execution of Will; Ss. 68, 69 of Evidence
Act; Secondary evidence; Certified copy of Will;
Original Will not produced; Foundation for
secondary evidence; Proof of execution; Alive
and capable of giving evidence; Not proved in
accordance with Section 68; Cannot be read in
evidence; No illegality committed by trial court;
Appeal is devoid of merits; Impugned judgment
and decree affirmed.

Case Arising From
APPELLATE JURISDICTION: First Appeal No. -
743 of 2024
From
the
Judgment
and
Decree
dated
25.01.2024 passed by the Court of Additional
District Judge, Court No.9, Ghaziabad in O.S.
No.446 of 2020

Appearances for Parties
Advs. for the Appellant:
Prathamesh Upadhyay, Tarun Agrawal

Adv. for the Respondent:
Girja Shanker Mishra, Pratiksha Rai

(Delivered by Hon'ble Sandeep Jain, J.)

1. I have already heard Sri Tarun
Agrawal learned counsel for the appellant
and Ms. Pratiksha Rai learned counsel for
the respondent on 19.09.2025. The case
was fixed for today for exploring the
possibility of compromise between the
parties but the parties have failed to arrive
at a compromise, as such, the matter is
being disposed today, on merits.

2. The instant appeal under Section 96
CPC has been filed by the plaintiff against
the exparte impugned judgment and decree
dated 25.01.2024 in O.S. No.446 of 2020
(Khubi Ram Vs. Bhoop Singh & others),
passed by the court of Additional District
Judge, Court No.9, Ghaziabad, whereby the
plaintiff's suit for the relief of declaration of
being the owner of disputed property, on
the basis of the registered Will dated
20.01.2011, has been dismissed on the
ground that the Will has not been proved in
accordance with law.

3. Factual matrix of the case is that the
plaintiff filed O.S. No.446 of 2020, in the
trial
court
against
the
defendantsrespondents with the averments that the
plaintiff and the defendants are the real
brothers who are the successor of Ram
Swaroop, who had purchased the disputed
property house No.85-A, Nagar Nigam,
No.27, a single storeyed house, constructed
on area of 131.25 square yard consisting of
two rooms, latrine, bathroom, tin shed,
situated in Anand Vihar colony, village
Nasarpur, Pargana Loni, Tehsil & District
Ghaziabad, the boundaries of which have
been mentioned at the end of the plaint,
through sale deed dated 20.04.1977. The
plaintiff submitted that due to his care and
nursing, his father Ram Swaroop, who is
also the father of the defendants, executed a
registered Will dated 20.01.2011, in his
favour, which was registered in book No.3,
Zild No.471, at page Nos.269-280, serial
No.26 in the office of the Sub Registrar, Ist,
Ghaziabad. The Will was executed by Ram
Swaroop willingly when he was in fit
mental condition without any coercion and
undue influence. The plaintiff further
averred that this was the last Will of his
966 INDIAN LAW REPORTS ALLAHABAD SERIES
father and the defendants were aware of
that Will. After the execution of the Will,
the plaintiff's father Ram Swaroop died on
16.12.2011 in Sarvodaya Hospital, Kavi
Nagar, Ghaziabad and, as such, after the
demise of his father, he became the owner
of the disputed property on the basis of the
above registered Will. The plaintiff averred
that the intention of the defendants had
become malafide who refused to accept his
ownership on the basis of the above Will,
as such, he had no other option, but to seek
declaration of his ownership on the basis of
the above Will. In this background, the
plaintiff claimed the following relief:-

(i) By declaratory decree granted in
favour of the plaintiff against the defendants,
the plaintiff be declared the owner of the
disputed property, which is house No.85-A,
Nagar Nigam No.27, a single storeyed house,
constructed in an area of 131.25 square yard,
consisting of two rooms, latrine, bathroom,
tin shed, situated in Anand Vihar colony,
village Nasarpur, Pargana Loni, Tehsil &
District Ghaziabad.

4. The trial court presumed sufficient
service on the defendants vide order dated
13.09.2021 and when the defendants did
not appear before the trial court, by order
dated 26.10.2021, the trial court proceeded
exparte against the defendants.

5. In the documentary evidence, the
plaintiff submitted a certified copy of the
alleged Will dated 20.01.2011, photo copy
of his Aadhaar Card, photocopy of death
certificate of his father Ram Swaroop. In
oral evidence, the plaintiff filed his
affidavit in evidence, in which he reiterated
his plaint averments.

6. The trial court by impugned
judgment and decree dated 25.01.2024,
concluded that the burden was on the
plaintiff to prove that a registered Will was
executed on 20.01.2011, in his favour by
his father Ram Swaroop, but the plaintiff
failed to discharge that burden. The
plaintiff did not comply with the provisions
of Section 68 of the Evidence Act. The
plaintiff neither examined any attesting
witness of the Will nor proved it in
accordance with law. The trial court
concluded that since the plaintiff failed to
prove the execution of the Will in his
favour, as such, the plaintiff cannot be
deemed to be the owner of the disputed
property on the basis of the above Will.
With this reasoning, the trial court
dismissed the plaintiff's suit exparte.
Aggrieved against which, the plaintiff is in
appeal before this Court.

7. Learned counsel for the plaintiffappellant submitted that the impugned
judgment and decree of the trial court is
perverse and is liable to be set aside. He
further submitted that the suit was decided
exparte against the defendants. The plaintiff
filed a certified copy of the Will which was
proved by the oral evidence of the plaintiff, as
such, there was no requirement to comply
with the provisions of Section 68 & 69 of the
Evidence Act. He further submitted that the
Will had not been challenged by the
defendants, as such, it should have been
relied by the trial court. Learned counsel for
the appellant further submitted that the Will
was registered as such, there was a
presumption regarding its authenticity but the
trial court has overlooked this and has
committed illegality in rejecting the plaintiff's
suit. With these submissions, it was prayed
that the appeal be allowed and consequently
the plaintiff's suit be decreed.

8. Learned counsel for the defendantrespondents submitted that there was no
9 All. Khubi Ram Vs. Bhoop Singh & Ors.
967
illegality in the impugned judgment of the
trial court because the burden was on the
plaintiff to prove the Will in accordance
with law, in which the plaintiff utterly
failed. She further submitted that prior to
the execution of the Will, the father of the
defendants had executed a sale deed in
favour of the defendants, as such, no title
has devolved on the plaintiff. She further
submitted that the plaintiff has to prove its
case on the basis of its pleadings and
evidence submitted in the trial court, which
the plaintiff failed to prove. With these
submissions, it was prayed that the appeal
has got no merit and is liable to be
dismissed.

9. I have heard learned counsel for the
parties and perused the record.

10. It is apparent that the plaintiff is
claiming ownership of the disputed house
on the basis of the registered Will dated
20.01.2011, alleged to be executed by his
father Ram Swaroop in his favour. The
plaintiff has not filed the original Will and
has only filed its certified copy. The plaintiff
has not furnished any reason as to why the
original Will was not produced by him in the
trial court. It is well settled that the plaintiff
was bound to prove the original Will and if
that was lost, destroyed or was not in his
possession, only then the plaintiff could have
filed the certified copy of the Will but that
was not the case here. No foundation was laid
by plaintiff for filing certified copy of the
alleged Will, in secondary evidence. In view
of this, the plaintiff could not have proved the
certified copy of the alleged Will.

11. Section 68 and 69 of the Evidence
Act reads as under:-

Section 68. Proof of execution of
document required by law to be attested -If
a document is required by law to be
attested, it shall not be used as evidence
until one attesting witness at least has been
called for the purpose of proving its
execution, if there be an attesting witness
alive, and subject to the process of the
Court and capable of giving evidence:

[Provided that it shall not be necessary
to call an attesting witness in proof of the
execution of any document, not being a
will,
which
has
been
registered
in
accordance with the provisions of the
Indian Registration Act, 1908 (16 of 1908),
unless its execution by the person by whom
it purports to have been executed is
specifically denied.]

69. Proof where no attesting witness
found.-If no such attesting witness can be
found, or if the document purports to have
been executed in the United Kingdom, it
must be proved that the attestation of one
attesting witness at least is in his
handwriting, and that the signature of the
person executing the document is in the
hand writing of that person.

12. The Apex Court in the case of
Ramesh Chand(D) Through LRS. vs.
Suresh Chand & Another 2025 SCC
OnLine SC 1879 has held as under:-

"27. Considering the aforementioned
cases, it is clear that in order to rely upon a
Will, the same has to be proved in
accordance with law. A Will has to be
attested by two witnesses, and either of the
two
attesting
witnesses
have
to
be
examined by the propounder of the will. In
the present matter, we have carefully
perused the Trial Court's judgment. There
is not an iota of discussion about the
validity of the Will as contemplated under
Section 63 of the Succession Act, 1925 and
968 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 68 of the Evidence Act, 1872 and
yet, the validity of the Will has been
upheld. This is contrary to law. Even the
High Court, while evaluating the validity of
the Will, has gone on a different tangent
and
has
erroneously
held
that
the
requirement of examining the attesting
witnesses springs into action only in cases
of disputes between legal heirs. Such an
observation is quite contrary to law, for
Section 68 of the Evidence Act makes it
mandatory to examine at least one of the
attesting witnesses of the Will. Mere fact
that the Will was registered will not grant
validity to the document. Besides that, the
will propounded by plaintiff is surrounded
with suspicious circumstances, in as much
as the alleged propounder of the Will, Lt.
Sh. Kundan Lal, had four children,
including the plaintiff and the defendant
No. 1. There is not even a whisper of
reasoning as to why the propounder of the
Will choose to exclude other three children
from the bequest, and whether any other
properties or assets were given to them. It
is highly unlikely that a father would grant
his entire property to one of his children, at
the cost of three others, without there being
any evidence of estrangement between the
father and the children. This suspicious
circumstance surrounding the will has not
been removed by the plaintiff either.
Hence, for these cumulative reasons, the
Will propounded by plaintiff though
registered would not confer any valid title
on the plaintiff either."

13. It is apparent that if a document
is required by law to be attested then it
shall not be used as evidence until one
attesting witness has been examined
before the Court for proving its execution
if he is alive and capable of giving
evidence. It is also evident that where no
attesting witness can be found, then the
propounder of the Will is bound to prove
the handwriting of at least one attesting
witness and the signature of the person
executing the document.

14. In this case, there are two
attesting witnesses of the alleged Will,
namely Ishwar Dayal and Smt. Neema
Singh, but the plaintiff has not examined
any of them in the trial court in order to
prove the execution of the Will. The
plaintiff has averred in the trial court that
attesting witness Ishwar Dayal has died
and has also disclosed that the other
attesting witnesses Smt. Neema Singh
does not want to give evidence in support
of the plaintiff in court since she is the
wife of the defendant No.4 Satyapal
Singh.

15. It is evident that one of the
attesting witness Smt. Neema Singh is
alive, but she has not being examined, or
she is not willing to appear in the court,
as such, the Will has not been proved in
accordance with Section 68 of the
Evidence
Act.
Since,
one
attesting
witness of the alleged Will is alive, the
provisions of Section 69 of the Evidence
Act are not applicable in the instant case.
As such, the alleged Will cannot be read
in evidence and on it's basis, the plaintiff
cannot be declared the owner of the
disputed property.

16. It is apparent that the plaintiff and
the defendants are the real brothers who are
fighting for the property of their father Ram
Swaroop. It is apparent that the plaintiff has
failed to prove his ownership in the disputed
property on the basis of the alleged Will
dated 20.01.2011, as such, the trial court has
not committed any illegality in rejecting the
plaintiff's suit exparte by impugned judgment
and decree dated 25.01.2024, warranting
9 All. Karamveer Electronic Ltd. Vs. Energo Import, Ahmedabad & Ors.
969
interference from this Court in exercise of its
appellate jurisdiction. The appeal is devoid of
merits and is liable to be dismissed.

17. Accordingly, the appeal is hereby
dismissed.

18. The impugned judgment and
decree of the trial court dated 25.01.2024 in
O.S. No.446 of 2020 (Khubi Ram Vs.
Bhoop Singh & others) is hereby affirmed.

19. However, in the facts and
circumstances of the case, the parties shall
bear their respective costs.

20. Office is directed to prepare the
decree accordingly.

21. Office is directed to send back the
original trial court record, forthwith.
----------
(2025) 9 ILRA 969
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.09.2025

BEFORE

THE HON'BLE SANDEEP JAIN, J.

First Appeal No. 788 of 2025

Karamveer Electronic Ltd. ...Appellant
Versus
Energo Import, Ahmedabad & Ors.
 ...Respondents

Counsel for the Appellant:
Sri Surya Shanker Pandey

Counsel for the Respondents:

Issue for Consideration
Matter pertains to whether the trial court was
justified in allowing defendant's application
under O. VII R. 11 C.P.C. and returning plaint
for presentation before Commercial Court on the
ground that dispute arose out of commercial
transaction falling within ambit of Section
2(1)(c) read with Section 6 of Commercial
Courts Act, 2015, or whether civil court retained
jurisdiction to entertain the suit for mandatory
injunction directing defendants to honour Letter
of Credit issued in connection with international
trade transaction.

Headnotes
Code of Civil Procedure, 1908 - O. 7 R. 11 -
Commercial Courts Act, 2015 - ss. 2(1)(c),
6 - The plaintiff - appellant, a company
engaged
in
the
manufacture
of
transformers
and
allied
electrical
equipment, entered into agreement dated
31.03.2020 with defendant no.1, Energo
Import,
a
Government
of
Cuba
undertaking, for supply of transformers to
Cuba, with payment secured through
Letter of Credit issued by defendant no.3,
CAIXA Bank, on behalf of defendant no.1,
and payable through State Bank of India,
defendants nos.4 and 5 - Plaintiff supplied
goods vide invoices between November
2020 and November 2021, amounting to
Euro 940081.88, of which only Euro
303121.71
was
received,
leaving
a
balance of Euro 636960.57 unpaid despite
repeated reminders - Alleging failure of
defendants to honour the L.O.C. and
breach
of
international
banking
obligations, plaintiff instituted Original
Suit
seeking
a
mandatory
injunction
directing defendants nos.1 to 3 to honour
L.O.C. and for attachment of their funds in
State Bank of India - Defendant no.3
moved application under O. VII R. 11(d)
C.P.C.,
contending
that
dispute
was
commercial dispute of specified value
u/ss. 2(1)(c) and 6 of Commercial Courts
Act, 2015, and thus triable only by
Commercial Court - Trial court upheld this
objection, returned plaint for presentation
before competent Commercial Court and
plaintiff, aggrieved, preferred the instant
First Appeal u/s 96 C.P.C. before High
Court.
Held: It is apparent from plaint that there was
export of merchandise by plaintiff, which was
only partly paid by defendant No.1, the payment
was secured by LOC issued by defendant No.2 &
3, who were bankers of defendant No.1 and