Quashed

Jagdish and Another v. Deputy Director Consolidation Sitapur

Allahabad HC6 May 2024WRIB/4784/1981

Case brief

AI extract

What is this about?

The High Court allowed a writ petition to quash a revisional order rejecting a claim based on a registered Will for agricultural land. The court held that a Will is duly proved by the marginal witness's statement regarding execution and signature, without requiring the scribe's examination.

What did the court decide?

Quashed the impugned revisional order dated 19.08.1981 passed by the Deputy Director Consolidation and allowed the writ petition.

Jagdish and Another Vs Deputy Director… — Succession and Inheritance | Allahabad HC (2024)

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(1)

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Neutral Citation No. - 2024:AHC-LKO:34908

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Court No. - 18

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Case :- WRIT - B No. - 4784 of 1981 Petitioner :- Jagdish And Another Respondent :- Deputy Director Consolidation Sitapur Counsel for Petitioner :- D.K. Trivedi,Ganesh Gupta,R.K. Sharma,Raj Kumar Yadav Counsel for Respondent :- C.S.C.,B.C. Agarwal,Durgesh Kumar Pandey,P.C. Gupta,Sri P.L.Mishra,Vineet Kumar Pandey

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Hon'ble Manish Kumar,J.

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Heard learned counsel for the petitioners, Sri Hemant Kumar Pandey, learned Standing Counsel for the State and learned counsel for the private respondents.

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The present writ petition has been preferred for quashing of the impugned revisional order dated 19.08.1981 passed by the respondent no. 1/Deputy Director of Consolidation and with a further prayer to direct the respondent no. 1 not to implement the order contained as Annexure no. 3.

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Learned counsel for the petitioners has submitted that the present writ petition has been filed by Jagdish i.e. the petitioner no. 1 claiming his right on chak Nos. 621 & 622 on the basis of the certified copy of the registered Will dated 12.03.1979 executed in his favour by Late Sarju, who was the original tenure holder of the said chak.

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The petitioner no. 2 i.e. Smt. Sukhdei was the widow of Late Sarju and on the basis of same, she was claiming her right on the said property as per Section 171(2)(b) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as 'the Act, 1950').

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It is further submitted that the respondent nos. 2, 3 & 4 were claiming their rights being the real brothers of Late Sarju and denying that Smt. Sukhdei/petitioner no. 2 was the wife of Late Sarju and disputed the Will as well and Late Sarju has no male descendants.

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(2)

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It is further submitted that during the pendency of the present writ petition, Smt. Sukhdei had expired and an application was moved for deletion of her name and the said application was allowed and the deletion was made on 18.12.2005, deleting the name of Smt. Sukhdei as petitioner no. 2. During the pendency of the present writ petition, the respondent nos. 2, 3 & 4 have also expired and in their place, their legal representatives/heirs have been substituted and for convenience, they will be referred as respondents.

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Sri Vineet Kumar Pandey, is representing the respondent no. 3, whereas counsel for the respondent nos. 2 & 4 despite the matter has been taken in the revised list and the notice is pasted outside the Court that the old matters will not be adjourned, they are neither present nor any request has been made on their behalf for adjournment of the case.

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It is further submitted that the registered Will dated 12.03.1979 has been mis-placed, so the petitioner no. 1 has raised his claim after obtaining the certified copy of the Will from the Office of the Registrar. The Will presented/relied by the petitioner no. 1 was disputed by the respondent nos. 2, 3 & 4. The petitioner no. 2/Late Sukhdei also raised her claim in the proceedings before the Settlement Officer Consolidation being the widow of Late Sarju. The said matter was decided by the Consolidation Officer under Section 12 of the U.P. Consolidation and Holdings Act, 1953 in favour of petitioner no. 1 by its order dated 29.11.1979.

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Against the said order, the private respondents preferred an appeal which was also dismissed by the Settlement Officer Consolidation by its order dated 26.03.1980 and affirmed the order passed by the Consolidation Officer with a finding that the Will has been proved on the basis of statement of Shri Mohd. Umar, who was the marginal witness of the Will.

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Against the appellate order, the private respondents preferred a revision before the Deputy Director of Consolidation, which was allowed in their favour without appreciating the evidence adduced by the petitioner no. 1 and without taking

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(3)

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into account the findings given by the Consolidation Officer and the Settlement Officer Consolidation. Merely on the basis of conjectures and surmises, the revision was allowed in favour of the private respondents and feeling aggrieved by the same, the present writ petition has been preferred.

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On the other hand, learned counsel for respondent no. 3 has submitted that the petitioner no. 1 had not filed the original registered Will before the Consolidation Officer and the Settlement Officer Consolidation. In the revisional order, the finding has been given that the Will is such a relevant document then how could it be misplaced by the respondent i.e. the petitioner here before this Court, the basis on which he has claimed his rights on the agricultural land of Late Sarju.

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It is further submitted that a specific finding has been given that the draftman of the Will or who has written the Will had not been examined and some person has been examined who had stated before the Court that he had read the Will which was produced in the Court and on the basis of which the order has been passed in favour of the petitioner before this Court by the Consolidation Officer and the Settlement Officer Consolidation. Hence, there is no illegality in the findings given by the revisional court and the revisional Court has rightly decided the matter in favour of the respondents.

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After hearing learned counsel for the parties and going through the record of the case, the position which emerges out is that the agricultural land belonged to Late Sarju and the petitioner no. 1 was claiming his rights on the basis of the certified copy of the registered Will dated 12.03.1979 as the original registered Will has been misplaced by him.

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The petitioner no. 2, Late Sukhdei, who was claiming her right being the widow of late Sarju is now no more and has already been deleted from the array of parties as petitioner no. 2, so it is a futile exercise to discuss the findings given with regard to Late Sukhdei in the order of the revisional court. Respondent nos. 2, 3 & 4 are claiming their rights on the basis

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(4)

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of being the real brothers of late Sarju who had no male descendents and Smt. Sukhdei was not his wife.

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The Revisional Court has given a finding with regard to the certified copy of the will relied upon by the petitioner no. 1 for his claim that how it could be possible that such an important document i.e. the Will could be misplaced by a person who is claiming his right on the basis of the same. The second finding that not accepting the Will presented by the petitioner no. 1 was that the petitioner no. 1 had presented one witness who has not written the will but has stated before the court that he had read the Will and it is the same Will which was executed by Late Sarju and completely erred in observing that such a person who had not scribed the Will, was produced to prove the Will but mentioning that the witness was none other than Mohd. Umar, who was the marginal witness of the Will, which fact was never disputed either before the Consolidation Officer or the Settlement Officer Consolidation by the respondents.

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The statement given by Mohd. Umar has been enclosed as Annexure no. S.A.-3 to the supplementary affidavit filed on behalf of petitioner on 09.10.2016, which also finds mention in the order of the Consolidation Officer. For convenience, the same is quoted hereinbelow:-्ቚ

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ति�लि�पि� बयान ्ቦी मोहम्मद उमर पिदनाँक 12-11-79 न्याया�य चकबन्दी अति�कारी सी�ा�ुर वाद संख्या - 36 / 79 अन्�्ቇ"� �ारा - 12 चकबन्दी एक्ट बामुकदमा व�देव आपिद बनाम सरजू ( मृ�क ) ्ቇाम बसई डीह �र्ቇना बाडी �हसी� सिस�ौ�ी सिज�ा सी�ा�ुर �ारीख दायरा 14-9-79 �ारीख फैस�ा 29-11-79 ्ቚति�लि�पि� अभि4�ेखा्ቇार मा� क�ेक्ट्रेट जन�द सी�ा�ुर से जारी की ्ቇयी है।

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सरजू (मृ�क) -----्ቚति�वादी्ቇण

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मोहम्मद उमर �ु्ቔ अब्दु� कसिसर खाँ पिनवासी ्ቇातिडया हसन�ुर आयु 48 व्ቧ" �ेशा खे�ी बह�फ �ेने के बाद बयान पिकया पिक मैं बसई डीह के सरजू �ु्ቔ मेहे को जान�ा था वह मर ्ቇये है अ�ठनीय वसीय� लि�खायी थी वसीय� �ढ़कर सुनाई ्ቇयी थी उस समय सरजू वहम ्ቇवाह मौजूद थे। वसीय� सुनने के बाद सरजू ने कहा था वसीय� सही है �ब अँ्ቇूठे �्ቇाया था उसके बाद हमने दस्�ख� पिकये थे व समीउ्ቤा ने दस्�ख� पिकये थे वसीय� ईएक्स - क -1 वही है जो सरजू ने लि�खी थी।

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यह वसीय�नामा अ�ठनीय है नं०ईएक्स - क -1 है वकी� साहब ने ब�ाया है पिक यह नक� मुझे अस� वसीय� सुनाई ्ቇयी थी नक� यहां सुनाई ्ቇयी है नक� अ4ी उसकी सुनी है। वसीय� पिकस �ारीख को लि�खी ्ቇयी नहीं मा�ूम है 5-6 माह हुआ है। मैंने व समीउ्ቤा ने दस्�ख� पिकये थे। सरजू ने अँ्ቇूठा �्ቇाया था। सुखदेई सरजू के 4ाई को जान�ा है जहां व छोटकऊ को जान�ा हूँ। सरजू जब मर ्ቇये �ब सुनाया। सरजू बीमार नहीं रहा मुझे नहीं मा�ुम पिक बद�ू अ�ठनीय बसई डीह ्ቇया है सरजू व ज्ቇदीश को मैं 4�ी ्ቚकार जान�ा था। यह ्ቇ�� है पिक सरजू की अ�ठनीय वसीय� अ�ठनीय सरजू अ�ठनीय हो। ्ቇ�� है ्ቇ�� है पिक मैं वसीय� के व्ሹ न ्ቇया

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(5)

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हूँ। यह ्ቇ�� है पिक मेरे दस्�ख� न हुये हो। यह ्ቇ�� है पिक मैं �ैसा देकर ्ቇवाही देने आया होऊ अ�ठनीय सुखदेई अ�ठनीय नदारद।

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बयान सुनकर �सदीक पिकया।

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मेरे पिनदIशन �र मेरी उ�ቝኌस्थति� में लि�खा ्ቇया। ह० अ�ठनीय ह० अ�ठनीय च०अ० च०अ० 12-11-79 12-11-79

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(It is pointed out by learned counsel for petitioner that perhaps due to typographical mistake in the middle, it has been written as P.W. 2/witness-Jagdish whereas P.W. 2 was Mohd. Umar and this fact may be seen by reading the whole statement). The same has not been disputed by learned counsel for the respondent.

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From perusal of the statement given by Mohd. Umar, the marginal witness, it was not that as mentioned in the revisional order that "he had read the Will and it is the same Will which was executed by the testator Late Sarju" whereas the statement is very clear that "the Will was written thereafter it was read to Late Sarju and he had put his thumb impression in his presence and thereafter he had signed the Will as a marginal witness"

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Learned counsel for respondent no. 3 on being asked as to what is required for proving the Will, he has very fairly submitted that the statement of the marginal witness, if he says that the testator has signed the Will or put his thumb impression in his presence and not that it is to be proved by the person, who has written or scribed the Will. The revisional Court has erred in giving a finding on surmises and conjectures and against the material on record as discussed above. The Will was duly proved before the Consolidation Officer and the appellate Court. The revisional court erred in giving finding for not accepting the Will on the ground that the scribe of the Will was

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(6)

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not produced/examined, which is not required under the law for proving the Will.

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In view of the facts, circumstances and discussion made hereinabove, the writ petition is allowed.

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The impugned revisional order dated 19.08.1981 passed by the respondent no. 1/Deputy Director of Consolidation is hereby quashed.

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Order Date :- 6.5.2024

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Nitesh

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Digitally signed by :- NITESH KUMAR TEWARY High Court of Judicature at Allahabad, Lucknow Bench

Jagdish and Another v. Deputy Director Consolidation Sitapur

Case brief

What is this about?

What did the court decide?

Jagdish and Another v. Deputy Director Consolidation Sitapur

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