The central legal point established is the requirement of due execution and attestation of a will under the Indian Succession Act, 1925 and Evidence Act, 1872.

Civil Misc. Review Application No. 241265 of 2013

Ram Surat Ram (Maurya),J.

Heard Sri Salil Kumar Rai holding brief of Sri Rajesh Kumar, for the petitioner/ review applicant.

2. The writ petition was filed for quashing the order of Consolidation Officer dated 24.06.2003 and Deputy Director of Consolidation dated 28.02.2011, arising out of the proceeding under Section 12 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). After exchange of the pleading and hearing the arguments of the parties the writ petition was decided by judgment dated 01.08.2013. The petitioner has filed this review application.

3. The dispute was in respect of property of khata 107 of village Nabi Nagar, tahsil Anoop Shahar district Bulandshahar, which was recorded in the name of Tunda, who died on 24.09.1994. Kunwarpal Singh (respondent-3) filed an application under Section 12 of the Act for mutating his name as an heir of Tunda, on the basis of registered will dated 12.05.1982. Smt. Asharfi Devi (respondent-4) contested the aforesaid case on the ground that Tunda had two sons Madan Lal and Kunwarpal. She was widow of Madan Lal as such she inherited 1/2 share in the land in dispute on the death of Tunda and Tunda had not executed any will. The Consolidation Officer, by his order dated 24.06.2003, found that due execution of the will was proved by attesting witness Khan Chand. As such Kunwarpal Singh alone inherited the property in dispute after death of Tunda and directed for recording his name alone as an heir of Tunda. Smt. Asharfi Devi (respondent-4) filed an appeal from the aforesaid order. The appeal was allowed by Settlement Officer Consolidation, by order dated 06.01.2010 on the ground that statement of Khan Chand was not recorded by Consolidation Officer rather his affidavit has been relied upon without giving any opportunity to cross examine him. Kunwarpal Singh filed a revision from the aforesaid order. In the meantime Smt. Asharfi Devi (respondent-4) executed a sale deed dated 09.02.2010 in favour of the petitioner Smt. Pushpa Devi. The Consolidation Officer by order dated 12.05.2010 mutated the name of the petitioner. Kunwarpal Singh filed another revision from the order dated 12.05.2010. Both the revisions were heard together and allowed by Deputy Director of Consolidation by judgment dated 28.02.2011. Hence the writ petition was filed.

4. Before this Court, the petitioner argued that the will was highly suspicious document as Smt. Asharfi Devi was widow daughter-in-law of Tunda and was residing with him but no provision has been made for her maintenance. Khan Chand, the attesting witness had already died on 25.11.1994 and in his place some imposter was examined before Consolidation Officer as such due execution of the will was not proved. This Court in the judgment dated 01.08.2013 found that death certificate of Khan Chand as produced by the petitioner was a forged document while death certificate produced by the respondent it was proved that Khan Chand died on 16.06.2002 while his statements was recorded before Consolidation Officer on 30.12.1998. It was found that statement of Khan Chand was recorded before Consolidation Officer. As the litigation was going on between Smt. Asharfi Devi and Tunda for maintenance under Section 125 Cr.P.C. as such relation between them was not good. In order to save his property from a widow daughter-in-law who was in litigating term, the registered will was executed by Tunda on 12.05.1982. Tunda died on 24.09.1994 but he did not cancel his will which proved that he did not change his opinion for Smt. Asharfi Devi. On these findings writ petition was dismissed.

5. In the review application, the counsel for the petitioner argued that the will is required to be attested under Section 63 (C) of Indian Succession Act, 1925. Due execution of the will is required to be proved according to the provisions of Section 68 of the Evidence Act, 1872. From the statement of Khan Chand