R. M. SAHAI, J. By this petition filed under Article 226 of Constitution of India Petitioners seek quashing of order dated 8. 4. 1980 passed by Deputy Director of Consolidation under Section 48 of Consolidation of Holdings Act (hereinafter referred as Act) in pursuance of direction issued by this Court on 28. 2. 1979 in Civil Misc. Writ Petition No. 3243 of 1975.

Prior to enforcement of consolidation, dispute had arisen between parties on 13. 5. 1969 in mutation proceedings on death of one Kalka (herein referred as testator) on 9. 4. 1969 in respect of his agricultural holding. Both parties based their claim on respective will in their favour. The mutating authority allowed the application of petitioner and rejected that of opposite party No. 2 (herein after referred as opposite party ). It held that will dated 26-1-1969 in favour of opposite party was forged. It was also found that he was not related to the testator. On the other hand the will dated 5. 7. 1966 in favour of petitioners was found to be genuine. The mutating authority found that testator was brother-in-law (Sarhoo) of petitioners. He resided with them and died also in their village at Solon in Madhya Pradesh.

After notification under Section 4 of the Act was issued and statements were published under Section 9 showing petitioners in basic year records opposite party staked his claim once again by filing an objection under Sec tion 9a, paragraphs 9 and 10 of which are material. It was alleged that although petitioners did not belong to testators family yet they pursuaded him to execute a will on 5. 7. 1966 in their favour on false assurance that they shall reside at his house and look after him so long he was alive. They also falsely got it mentioned in the will that they were brothers sons and coshared with him when in fact testator had no brother. In paragraph 10 it was averred that when petitioners did not carry out their promise of residing and looking after testator he kept the opposite party (who was related to him as nephew) and being happy with his services the testator became affectionate towards him and executed second and last will on 26. 1. 1969 in his favour out of own free will and revoked the will in favour of petitioners. On pleading of parties the Conso lidation Officer did not frame any issue In respect of petitioners will as parties were not at issue on it. On 14. 3. 1973 the Consolidation Officer rejected the objection and found that the will in favour of opposite party was not genuina. He found its execution to be shrouded by suspicious circumstan ces. According to him the will was not only got registered after the death of testator but its authority was doubtful as Ganga Prasad one of the attesting witnesses

stated that it was written on stamp paper supplied by testator whereas it was on plain paper. Scribe was not produced. His presence at the time of execution of will was also doubtful. Signature of testator on will was clear and distinct when document executed in 61 was signed shakily and in 66it was thumb marked. Presence of testator on 26th January 1969 at Jalaun was found to be doubtful as there was overwhelming evidence that testator was in Madhya Pradesh on that date. In respect of will in favour of petitioners the Consoli dation Officer found that its execution having been admitted by opposite party and he having failed to prove its revocation by will dated 26th January 1969 as alleged petitioners were entitled to be recorded as bhumidhar. In appeal the order was upheld. The appellate authority summoned the file from mutation authority and found that in will dated 26th January 1969 there was clear interpolation. He found that words wasiyat in column 5 and Ram Swaroop son of Biranchi Lal (opposite party) in column 6 were added subsequently in different ink. In revision the orders were set aside. It was held that petition ers failed to prove his will in accordance with law. Against this order peti tioners had come to this Court under

Click Here to Read the rest of this document