The right of a bhumidhar to execute a will under Section 169 of the U. P. Zamindari Abolition and Land Reforms Act, 1950 overrides the preferential claim provided in Section 171.

( 1 ) THE deceased plaintiff had instituted a suit being suit No. 716 of 1989 against Smt- Arais begum defendant No. 1 and Sagir Ahmad. son-in-law of Smt. Arais Begum. On the death of the plaintiff, the petitioners, claiming to be the daughters, sought to substitute themselves in place and stead of the deceased plaintiff on the ground that a will was executed by the deceased plaintiff on 16. 5. 91. On the other hand, the said Smt. Arais Begum claims to be substituted in place and stead of deceased plaintiff on the ground that she is the only daughter-in-law of the deceased plaintiff and therefore she has the right to substitute under Section 171 of the U. P. Zamindari Abolition and Land Reforms Act (hereinafter called as the Act ).

( 2 ) THE learned trial court by an order dated 2. 9. 96 allowed the application of the petitioners. Upon revision being moved by the respondents, the revisional court by an order dated 28. 3. 97 passed in CM! Revision No. 136 of 1996 reversed the said order and allowed the application of said Smt. Arais Begum to be substituted in place and stead of the plaintiff. It is against this order, the present writ petition has been moved.

( 3 ) LEARNED counsel for the petitioner Shri Rameshwar Prasad Agarwal, contends that in view of execution of will by the bhumidhar by reason of Section 169 of the Act the petitioners are the heirs of the deceased plaintiff irrespective of the order of succession provided in Section 171 of the Act, and, therefore they are entitled to be substituted in place and stead of plaintiff. He further contends that since the will has been executed, therefore, the right claimed by Smt. Arais begum under Section 171 of the Act stands superseded, therefore, the revisional order cannot be sustained and is liable to be quashed.

( 4 ) SHRI B. D. Mandhyan, learned counsel appearing for respondent Nos. 2 and 3, on the other hand, contends that no will was produced before the court. Unless something is shown before the court that there is a will, the court cannot be liable to proceed on the basis of statement made in the application for substitution. Therefore, the order of trial court being contrary to the provision of Section 171 of the Act, the learned revisional court has rightly allowed the substitution of respondents and set aside the order passed by the trial court.

( 5 ) I have heard Shri Rameshwar Prasad Agarwal, learned counsel for the petitioner and Shri B. D. Mandhyan, learned counsel for respondent Nos. 2 and 3.

( 6 ) THE revisional court records a finding that the trial court had allowed the application of the petitioners on the basis of a will which fact has been disputed by respondent No. 3 and that the trial court had allowed the said application without making any enquiry as to whether any will has been executed or not. Therefore, he has reversed the order of the trial court and directed substitution of respondent No. 3 as plaintiff. The trial court, on the other hand, has pointed out that the petitioners had claimed the right on the basis of a will executed on 16. 5. 91 which has been denied and disputed by the defendants. Whether any will has been executed or not can be decided on the basis of evidence. The plaintiff had instituted the suit for injunction restraining respondent No. 3 herein along with respondent No. 2 from interfering in the peaceful possession of the plaintiff. Therefore, he has assumed that the relation between the plaintiff and the defendant were not good, therefore, the plaintiff may not like that his property may be passed on to the defendant (respondents 3 and 2 herein) and that there is every possibility of executing a will in favour of the petitioners. Therefore, he has come to a conclusion prima facie that there is every possibility of will being executed by the plaintiff and if such will is executed, the claim of defendant under Section 171 of the U. P. Z. A. and L. R. Act would nol be applicable. Therefore, he has allowed the app