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2013 Supreme(All) 2909
ALLAHABAD HIGH COURT
Ram Surat Ram (Maurya), J.
Damodar - Petitioner
Versus
Dy. Director of Consolidation & Others - Respondent
Writ B. No. 66891 of 2013
Decided On : 06-12-2013
For the Petitioner:Mr. S.C. Verma and Mr. Gokran Singh, Advocates
For the Respondent:C.S.C., Mahendra Kumar Shukla and R.S.Gupta, Advocates
The court emphasized the requirement to remove suspicious circumstances surrounding a will and upheld the findings of the Deputy Director of Consolidation.
Headnote:
Will - Property Inheritance - U.P. Consolidation of Holdings Act, 1953 - Section 169 of U.P. Act No. 1 of 1951 - [Section 169 of U.P. Act No. 1 of 1951] - The court discussed the due execution of the will, suspicious circumstances surrounding the will, and the requirement to remove suspicious circumstances by the propounder of the will. The court found that the will was surrounded by suspicious circumstances, including discrepancies in the photographs and the mention of a grandson when the deceased was issue-less. The Deputy Director of Consolidation's findings were upheld, and the writ petition was dismissed.
Fact of the Case:
The dispute involved the inheritance of property under the U.P. Consolidation of Holdings Act, 1953. The petitioner claimed inheritance based on a will, which was contested by the respondents. The Deputy Director of Consolidation found the will to be surrounded by suspicious circumstances and dismissed the petitioner's revision.
Finding of the Court:
The court found that the will was surrounded by suspicious circumstances, including discrepancies in the photographs and the mention of a grandson when the deceased was issue-less. The Deputy Director of Consolidation's findings were upheld, and the writ petition was dismissed.
Issues: The issues involved the due execution of the will, the presence of suspicious circumstances, and the petitioner's non-appearance before the appellate court.
Ratio Decidendi: The court upheld the Deputy Director of Consolidation's findings regarding the suspicious circumstances surrounding the will and the petitioner's non-appearance before the appellate court.
Final Decision: The writ petition was dismissed.
Ram Surat Ram (Maurya), J.
Heard Sri S.C. Verma and Sri Gokaran Singh, counsel for the petitioner and Sri R.S. Gupta, counsel for respondents 6 and 7.
2. The writ petition has been filed against the order of the Deputy Director of Consolidation dated 28.10.2013 passed in title proceeding under U.P. Consolidation of Holdings Act, 1953(hereinafter referred to as "the Act").
3. The dispute relates to the land of Khata No. 40 and 174 of Village Lareva, Pargana Chiriya Kot, Tehsil Muhammdabad, district Mau. In the basic consolidation record khata No. 40 was recorded in the names of Supher son of Bahal, Lilawati, widow of Ramkishun, Subedar son of Haripal, Vishram and Sukhram sons of Ghurpatar while khata No. 174 was recorded in the name of Subedar son of Haripal. The petitioner filed an objection that Subedar executed a will dated 16.12.1987 in their favour and died on 9.3.1988 as such after his death the property of the share of Subedar has been inherited by the petitioners. The other objections were filed by Katvaru and others who claimed to have a sale deed from Supher. Supher contested the objection and denied execution of will by Subedar and he claimed that Subedar died issue-less as such the property in dispute was inherited by him being his father's brother's son. The case was tried by the Consolidation Officer, Chiraiya Kot, Mau, who by order dated 19.9.2002 found that as due execution of the will dated 16.12.1987 was proved by Ram Awadh Singh, marginal witness of the will as such on the basis of the will the petitioner inherited the property of Subedar. Accordingly, the name of the petitioner was directed to be recorded over the land in dispute. Respondents filed two appeals i.e. one by Supher and another by Nagendra and others. Both the appeals were consolidated and heard by the Settlement Officer, Consolidation, who by order dated 19.9.2002 allowed the appeals and held that as the order of mutation which was passed on the basis of P.A-11 was not set aside as such on the basis of the will it was not liable to be deleted. The petitioner filed an application for recall of the order dated 19.9.2002 on the ground that the order was an ex parte order. The recall application was heard by the Settlement Officer, Consolidation, Mau, who by order dated 28.3.2006 rejected it on the ground that the restoration application did not contain signature of Damodar or Ram Kunwar Singh, who was having his power of attorney, and which was filed by one Harendra Kumar Singh, who was neither party in the proceeding nor aggrieved by the impugned order as such the recall application was not maintainable.
4. The petitioner filed a revision(registered as Revision No. 141/173/ 2013-14 against the orders of the Settlement Officer, Consolidation dated 19.9.2002 and 28.3.2006. The revision was heard by the Deputy Director of Consolidation, who by order dated 29.10.2013 found that as the petitioner in spite of the notice did not appear before the appellate court, accordingly, the order cannot be treated as ex parte order. On merit, he found that photo of Subedar affixed on the will was entirely different from his photo affixed on his driving licence. The recitals in the will that Damodar was his grandson was false and the signature of Subedar contained on the will did not tally with the signature contained on the photograph. Apart from the aforesaid situation as the will was not registered, it has been taken as a suspicious circumstance and the revision filed by the petitioner has been dismissed. Hence this writ petition has been field.
5. The counsel for the petitioner submits that due execution of the will was proved by the marginal witness Ram Awadh Singh and at the time of registration, the registration of the will was not compulsory under Section 169 of U.P. Act No. 1 of 1951. Accordingly, the Consolidation Officer found that due execution of the will was proved. The respondents have not adduced any evidence to show that the will was a forged
