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2019 Supreme(All) 682
IN THE HIGH COURT OF ALLAHABAD
ANJANI KUMAR MISHRA, J.
Dilip Kumar Pandey - Petitioner
Versus
Deputy Director of Consolidation and Others - Respondent
Writ-B No.181 of 2019
Decided On : 01-04-2019
Advocate Appeared:
For the Petitioner: Sachida Nand Tripathi
For the Respondent: C.S.C., Ramesh Chandra Mishra
Headnote:
U.P. Consolidation of Holdings Act – Section 9A(2) Indian Succession Act, 1925 – Section 213(2) (i) – Section 57 –Petition arises out of objection petitioner seeks writ of certiorari for quashing order passed by Consolidation Officer allowing impleadment application, filed by respondent no.3, whereby petitioners application for recall of order has rejected and order passed by Deputy Director of Consolidation, whereby consequential revision filed by petitioner challenging orders has rejected, are also impugned – Held, Extracted portion may modified slightly, It has observed in judgment cited that legality of will should subject to final determination of rights of parties in regular probate proceedings, observation may have relevant in case that being decided, instant writ petition arises out of regular title proceedings, It is also settled legal position that will, which does not pertain to property lying outside area of Presidency Towns, is not mandatorily required to probated in view of Section 57 read with Section 213(2) (i) of the Indian Succession Act, 1925. Such a will can always be proved in collateral proceedings, also., the will which is bone of contention at moment is liable to proved in accordance with law in pending proceedings, itself – Petition is dismissed.(Para 21, 23)
Facts of the case:
Petition arises out of objection petitioner seeks writ of certiorari for quashing order passed by Consolidation Officer allowing impleadment application, filed by respondent no.3, whereby petitioners application for recall of order has rejected and order passed by Deputy Director of Consolidation, whereby consequential revision filed by petitioner challenging orders has rejected, are also impugned.
Findings of the court:
Extracted portion may modified slightly, It has observed in judgment cited that legality of will should subject to final determination of rights of parties in regular probate proceedings, observation may have relevant in case that being decided, instant writ petition arises out of regular title proceedings, It is also settled legal position that will, which does not pertain to property lying outside area of Presidency Towns, is not mandatorily required to probated in view of Section 57 read with Section 213(2) (i) of the Indian Succession Act, 1925. Such a will can always be proved in collateral proceedings, also., the will which is bone of contention at moment is liable to proved in accordance with law in pending proceedings, itself.
Result: Petition is dismissed.
ANJANI KUMAR MISHRA, J.
1. Heard Shri Sachida Nand Tripathi, learned counsel for the petitioner and Shri Ramesh Chandra Mishra for the respondent no.3, the sole contesting respondent.
2. By means of this writ petition, which arises out of an objection under Section 9A(2) of the U.P. Consolidation of Holdings Act, the petitioner seeks a writ of certiorari for quashing the order dated 17.01.2015 passed by the Consolidation Officer allowing an impleadment application, filed by respondent no.3.
3. The order dated 05.11.2016, whereby the petitioner's application for recall of the order dated 17.01.2015 has been rejected and the order dated 29.12.2018 passed by the Deputy Director of Consolidation, whereby the consequential revision filed by the petitioner challenging the orders dated 17.01.2015 and 05.11.2016, has been rejected, are also impugned.
4. Indra Pari Devi, the mother of the petitioner filed an objection under Section 9A(2) of the U.P. Consolidation of Holdings Act challenging the basic year entry in favour of Ram Ujagar, Ram Vilash and Nalin Kant regarding plot no.247 of Khata No.6 situated in village Malav, Tappa Kauswasi, Pargana Bhauwapar, Tehsil Basgaon, District Gorakhpur.
5. It appears that the objector Indra Pari Devi died on 15.02.1994. On an application filed by the petitioner, the petitioner and his brother Vipin Kumar Pandey as well as six daughters of Savitri Devi, were ordered to be substituted in her place, vide order dated 03.01.2002.
6. On 20.04.2013, an impleadment application was filed by the respondent no.3, claiming on the basis of an unregistered will, executed by Indra Pari Devi in his favour, whereunder 2/3 share of Indra Pari Devi's land was bequeathed the respondent no.3 while remaining 1/3 share was bequeathed to her natural heirs, including the petitioners.
7. The Consolidation Officer, vide order dated 17.01.2015, allowed the impleadment application, although, copy of this order dated 17.01.2015 is not filed on record of this petition.
8. It is alleged that on the same day, an application for recall of the order allowing the impleadment application was filed primarily on the ground that the will had not been produced by the person seeking impleadment.
9. The Consolidation Officer vide order dated 05.11.2016, rejected the recall application on the ground that since respondent no.3 had been impleaded as an objector along with the natural heirs of Indra Pari Devi, the same would not affect the merits of the objection, which was yet to be decided after parties had led their evidence and had been duly heard. It was also observed that in any case, the copy of the will had, since been filed on record.
10. Aggrieved by the two orders aforesaid, the petitioner preferred a revision, which has been dismissed vide order dated 29.12.2018 finding that no copy of the order dated 17.01.2015 impugned in the revision had been filed by the revisionist. In so far as, the order dated 05.11.2016 is concerned, it was observed that the same was not a final order, but an interlocutory order, against which, a revision was not maintainable.
11. The contention of counsel for the petitioner is that the impleadment application had been allowed without copy of the will being available on record. In any case, the copy which has been filed subsequently, is a forged and anti timed document which had been filed without serving its copy upon the petitioner.
12. It is also contended that since in the impleadment application, the date of death of Indra Pari Devi was not disclosed neither was the date of the will itself, disclosed, the same goes to show that the will is forged and anti dated.
13. It is also vehemently contended by counsel for the petitioners that the impleadment application could not have been allowed without the will having been filed and proved in accordance with law and therefore, the orders impugned are vitiated.
14. He has placed reliance upon the decision of this Court dated 20.11.2018 in the Matters Under Articl
