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2017 Supreme(All) 334
ALLAHABAD HIGH COURT
(Lucknow Bench)
BEFORE : RAJAN ROY, J.
MOHAMMAD RASHID ....Petitioner
Versus
DEPUTY DIRECTOR OF CONSOLIDATION LUCKNOW AND OTHERS ....Respondents
(Civil Misc. Writ Petition (Consolidation) No. 728 of 2014, decided on 22nd March, 2017)
Counsel :
Mohd. Aslam Khan for the Petitioner; C.S.C., Ajmal Khan, Gopal Pandey and R.K. Srivastava for the Respondents.
Headnote:(Indian) Succession Act, 1925—Section 63—Title—Claim based on Will—Objection filed—Private respondents, who are sons of recorded tenure holder, claimed title based on succession—They also objected to claim of petitioner on the ground that Will was fraudulent—Courts below rejected the objection of petitioner and accepted the claim of the contesting respondents—Mere registration of Will was not proof enough to remove suspicious circumstances—Section 170 also prohibited bequest of holding by an Aasami or Bhumidhar with non-transferable rights—Will itself has not been found to be proved nor credible—Burden of explaining the suspicious circumstances is upon the propounder of Will i.e. the petitioner—Not only plea of fraud was very much there, but even otherwise same would be seen by Courts below as has been done by them—One of feature which makes the Will in question highly suspicious is the factum of holding of a landless labourer, who had initially been granted patta in respect thereof by Gaon Sabha on account of his state of penury, being bequeathed by him through a Will to a third person, i.e. a brick kiln owner and a wealthy person—Will also to be invalid on ground of exclusion of natural heirs—Petitioner failed to remove the suspicious circumstances—Interference with findings of fact recorded by Courts below declined. [Paras 11 to 36]
Result; Petition Dismissed.
Key Points: - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - [25000792000013] - [25000792000014] - [25000792000019] - [25000792000027]
What is the validity of a Will under the Uttar Pradesh Consolidation of Holdings Act 1953 and the Indian Succession Act in the context of Section 170 Z.A. & L.R. Act (1950) and the exclusion of natural heirs?
What is the burden of proof and the standard of proof required to uphold a Will when suspicious circumstances are present?
How do suspicious circumstances, including dominant position of the testator's employer and the lack of natural heirs, affect the credibility and admissibility of a Will?
Hon’ble Rajan Roy, J.—The proceedings before this Court under Article 226 of the Constitution of India have arisen from the objections filed by the petitioner as also the contesting respondent under Section 9-A(2), U.P. Consolidation of Holdings Act 1953 (hereinafter referred as ‘’Act 1953') claiming title over the land in dispute. The petitioner herein filed objections claiming title based on a Will said to have been executed by the recorded tenure holder as also seeking correction in the area of the Gatas forming part of Khata No. 321 in Village Kamlabad Madholi, Pargana Mahona, Tehsil Bakshi Ka Talab, District Lucknow. The private respondents, who are the sons of the recorded tenure holder, claimed title on the basis of succession. They also objected to the claim of the petitioner herein on the ground that the Will was fraudulent, illegal and unreliable, no such Will was executed by their father in favour of the petitioner.
2. All the three lower Courts of the Consolidation Officer (C.O.), Settlement Officer Consolidation (S.O.C.) and Deputy Director Consolidation (D.D.C.) have adjudicated the dispute in favour of the private respondents and have rejected the Will and the claim of the petitioner based thereon.
3. To encapsulate the facts of the case, a patta was granted by the Gaon Sabha in favour of Hasan (father of the contesting respondents) in respect of land forming part of Khata No. 321 bearing Gata No. 125/1 (0-2-5) and Gata No. 1/9 (0-12-14) in the year 1976 (1383 F.). This is not in dispute. It is also not in dispute that Hasan was an employee of the petitioner and worked at his brick-kiln. Such lessees/patta holders as Hasan initially had only sirdari rights i.e. the property held by them was inheritable, except by testamentary succession in view of Section 170 U.P. Zamindari Abolition and Land Reforms Act 1950 (hereinafter referred as ‘Act 1950’), but, could not be transferred. Subsequently, on account of amendments in the Act 1950 they acquired the status of Bhumidhar with non-transferable rights. During subsistence of the aforesaid Patta Hasan is said to have executed a Will in favour of the petitioner which was registered on 4.7.1991. Thereafter, in view of the changes in the Act 1950 vide Section 131-B which was inserted in the Act by U.P. Act No. 19 of 1995 with effect from 14.1.1995 Hasan became a Bhumidhar with transferable rights. This happened on 31.5.1997. This fact is also not in dispute. It is also not in dispute that after the closure of the brick kiln of the petitioner Hasan left for his native place Azamgarh and died there on 17.3.1999. It is also not in dispute that Hasan left behind three sons and his wife.
4. Consolidation proceedings started in the concerned village at Lucknow in the year 1999. The petitioner filed an objection, as already referred earlier. The contesting respondents also filed objections as already referred hereinabove, albeit, with some delay. The delay was condoned.
5. Both the objections were considered and decided by the C.O. vide his order dated 25.4.2006. The consolidation officer rejected the objection of the petitioner and accepted the claim of the contesting respondents.
6. Being aggrieved, the petitioner herein filed an appeal under Section 11(1) of the U.P. Consolidation of Holdings Act 1953 (hereinafter referred as ‘Act 1953’) before the Settlement Officer, Consolidation. The appellate Court also concurred with the findings and opinion expressed by the consolidation officer and rejected the appeal. Not being satisfied the petitioner herein took the matter further to the Court of the Deputy Director of Consolidation under Section 48 of the Act 1953 by filing a revision against the order of the Courts below, however, it met the same fate. The Deputy Director of Consolidation also concurred with the findings and views expressed by the Courts below.
7. It is against this background that the present writ petition was filed in the year 2014 wherein an interim ord
