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ALLAHABAD HIGH COURT (LB)
Ram Surat Ram (Maurya), J.
Daya Shanker Singh - Petitioner
Versus
Deputy Director of Consolidation, Faizabad and others - Respondents
W.P. No. 264 (Consol.) of 2014
Decided On : 18-9-2014
U.P. Consolidation of Holdings Act, 1953 - Land Dispute - Section 172, 174, 175, 169, 171, 68, 63 of Indian Succession Act, 1925, Section 3 of Transfer of Property Act, 1882, Section 68 of the Evidence Act, 1872 - The court discussed the dispute over land recorded in basic consolidation year khata of village Chetra, and khatas 13 and 168 of village Pandari, tehsil Bikapur, district Faizabad. The dispute was between Daya Shankar, who claimed right on the basis of an unregistered will dated 31.05.1976, and the heirs of Ram Chet Singh, who claimed right by way of inheritance under various sections of the U.P. Act No. 1 of 1951. The court examined the mode of execution of the will, the attestation of the will, and the suspicious circumstances surrounding the will's execution. It also considered the date of death of Smt. Inderdei and the claim of inheritance by the parties. The court analyzed the legal provisions and their interpretations, including the requirements for due execution of a will, attestation, and the burden of proof in establishing the validity of a will. The court's decision was based on the failure to prove due execution of the will, the presence of suspicious circumstances, and the lack of evidence supporting the petitioner's claim, leading to the dismissal of the writ petition.
Fact of the Case:
The dispute involved a claim of right over land based on an unregistered will dated 31.05.1976, and inheritance under U.P. Act No. 1 of 1951. The court examined the mode of execution of the will, the attestation of the will, the date of death of Smt. Inderdei, and the claim of inheritance by the parties. The petitioner's claim was based on the will, while the respondents asserted their right as heirs of Smt. Inderdei.
Finding of the Court:
The court found that the petitioner failed to prove due execution of the will, and there were suspicious circumstances surrounding the will's execution. The date of death of Smt. Inderdei and the claim of inheritance were also analyzed, leading to the dismissal of the writ petition.
Issues: The issues revolved around the validity of the unregistered will, the mode of execution and attestation of the will, the date of death of Smt. Inderdei, and the claim of inheritance by the parties.
Ratio Decidendi: The court held that the petitioner failed to prove due execution of the will, and the presence of suspicious circumstances raised doubts about the validity of the will. The court also emphasized the burden of proof in establishing the validity of a will and the requirements for due execution and attestation. Additionally, the lack of evidence supporting the petitioner's claim led to the dismissal of the writ petition.
Final Decision: The writ petition was dismissed, and the petitioner was directed to return the remaining amount from the harvested crops to the respondents within a specified period.
Ram Surat Ram (Maurya), J.
Heard Sri Mohd. Arif Khan, Senior Advocate, assisted by Sri Mohd. Aslam Khan, for the petitioner and Sri S.K. Mehrotra, for the contesting respondents.
2. This writ petition has been filed against the orders of Settlement Officer Consolidation dated 21.12.2009 and Deputy Director of Consolidation dated 10.03.2011, passed in the title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act).
3. It may be mentioned that Daya Shankar claimed the land of Smt. Inderdei on the basis of will dated 31.05.1976, allegedly executed by her, in his favour and his objection was allowed by Consolidation Officer. Smt. Mithilesh Singh and others also claimed the land of Smt. Inderdei but they lost from the Court of all consolidation authorities. Smt. Mithilesh Singh and others have filed Writ Petition No. 338 (Consolidation) of 2011, which is also pending. Kapildeo Singh and others also claimed the land of Smt. Inderdei and lost from the Court of all consolidation authorities. Kapildeo Singh and others have filed Writ Petition No. 357 (Consolidation) of 2013, which is also pending. However, in Writ Petition No. 364 (Consolidation) of 2011, there is serious dispute in respect of possession over the land in dispute as such counsel for the petitioner insisted to decide this writ petition separately as his case is based upon separate will. Other writ petitions are not ready for hearing and the counsel appearing in those cases are not interested in final arguments as such this writ petition is heard separately and is being decided.
4. Dispute is in respect of the land recorded in basic consolidation year khata of village Chetra, and khatas 13 and 168 of village Pandari, tehsil Bikapur, district Faizabad. As stated above, there were several objections but in this writ petition,2 dispute is between Daya Shankar (the petitioner), who claimed right on the basis of unregistered will dated 31.05.1976, allegedly executed by Smt. Inderdei, recorded tenure holder and heirs of Ram Chet Singh (respondents-3 to 7) (hereinafter referred to as the respondents), who claimed right by way of inheritance under Section 172, 174 and 175 of U.P. Act No. 1 of 1951. In basic consolidation year, khata 3 was recorded in the name of Smt. Inderdei, khata 13 was recorded in the name of Smt. Inderdei and Ram Chet Singh. Khata 168 (grove land) was recorded in the names of various persons including Smt. Inderdei and Uma Shankar, Rama Shankar and Daya Shankar sons of Ram Naresh. There is vague allegation that Smt. Inderdei was bhabhi of Ram Naresh Singh but the petitioner has neither set up any pedigree nor proved it nor claimed right under Section 171 of U.P. Act No. 1 of 1951.
5. There is dispute in respect of date of death of Smt. Inderdei also. According to the petitioner, Inderdei died on 21.02.1977, while according to the respondents, Inderdei died before 20.09.1976. The consolidation authorities found that as Vijay Kumar filed an application for mutation of his name over the land in dispute on the basis of unregistered will of Smt. Inderdei on 20.09.1976 before Naib Tahsildar under Section 34 of U.P. Land Revenue Act, 1901 as such Smt. Inderdei died before 20.09.1976. There is also dispute in respect of date of will. In paragraph-14 of the writ petition date of will has been mentioned as 31.04.1976. In the will date "4" has been manipulated and made as "5" as in April there is no date "31". But the witnesses have stated that will was executed in May as such this Court proceeds on its basis.
6. The petitioner filed an application under Section 34 of U.P. Land Revenue Act, 1901 for recording his name as an heir of Smt. Inderdei under her unregistered will dated 31.05.1976. Naib Tahsildar by order dated 18.07.1979 directed for recording the name of the petitioner over the land in dispute. Sub-Divisional Officer by order dated 06.02.1981 allowed the appeal of Ram Chet Singh and set aside the order of Naib Tah
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