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IN THE HIGH COURT OF ALLAHABAD
S.U. KHAN, J.
Peareylal – Appellant
Versus
Dy. Director (C) and Others – Respondents
Decided On : 09-07-2007
Will - Property Dispute - AIR 1959 SC 443, (1974) 2 SCC 600, (2006) 9 SCC 515, AIR 2007 SC 311, AIR 2007 SC 614 - The court discussed the genuineness of the Will and the surrounding suspicious circumstances, citing legal provisions and interpretations from various Supreme Court authorities. The court found the judgments passed by the lower courts to be erroneous in law and allowed the writ petition, setting aside all impugned orders.
Fact of the Case:
The dispute involved agricultural land left behind by Brahma Singh, with conflicting claims of succession/inheritance by Gajendra Singh and an agreement for sale in favor of Pearey Lal. The minor son of Gajendra Singh, Vinod Kumar, claimed adoption and a Will in his favor, leading to a property dispute.
Finding of the Court:
The court found the judgments passed by all three lower courts to be erroneous in law and allowed the writ petition, setting aside all impugned orders. The petitioner was directed to pay a specified amount to respondent Vinod Kumar upon getting possession of the land in dispute.
Issues: The key issues revolved around the genuineness of the Will, adoption claims, and the surrounding suspicious circumstances, as well as the possession and valuation of the disputed land.
Ratio Decidendi: The court emphasized the duty of the propounder of a Will to prove its genuineness, the need to dispel surrounding suspicious circumstances, and the distinction between formal proof and proof of genuineness. The court also considered the possession and valuation of the disputed land in reaching its decision.
Final Decision: The writ petition was allowed, and all impugned orders were set aside. The petitioner was directed to pay a specified amount to respondent Vinod Kumar upon getting possession of the land in dispute, failing which interest and additional payments would be applicable.
S.U. KHAN, J.
1. Heard learned Counsel for the parties.
2. This writ petition is directed against the orders passed by Consolidation Officer (CO), Settlement Officer Consolidation (SOC) and Deputy Director of Consolidation (DDC). Revision before the DDC was registered as Revision No. 59 Pearey Lal vs. Vinod Kumar and Others and was dismissed by the DDC, Meerut on 29.7.1980.
3. The dispute relates to agricultural land left behind by Brahma Singh. On the death of Brahma Singh (who died unmarried) his real brother Gajendra Singh (original respondent No. 5) claimed the land in dispute on the basis of succession/inheritance. Pearey Lal petitioner asserted that Gajendra Singh had executed an agreement for sale about the land in dispute in his favour after getting his (Gejendra Singh's) name mutated in revenue records and after obtaining permission for sale from SOC. Pearey Lal also filed suit for specific performance before the Civil Court against Gajendra Singh. In the said suit Vinod Kumar real son of Gajendra Singh filed impleadment application, which was opposed by Pearey Lal and Vinod Kumar who was minor aged about 6 or 7 years at that time claimed that Brahma Singh had firstly adopted him and secondly, he had executed a Will in his favour. He filed application through Mahendra Singh his sister's husband, rejected by the Court. The Supreme Court in Kasturi vs. Iyyamperumal and Others, (2005) 6 SCC 733 has held that rival claimant to ownership is neither necessary nor proper party in a suit for specific performance of an agreement for sale. The impleadment application was rejected holding that neither Will nor adoption was proved. The suit for specific performance was afterwards decreed. In said suit, it was decided that Gajendra Singh had executed agreement for sale in favour of Pearey Lal. Before the civil suit was decreed proceedings had started before the consolidation courts and an application for staying proceedings of the suit till decision by the CO was filed, which was rejected.
4. CO, SOC as well as DDC have held that adoption as well as Will was proved. If either of these two things stand proved, Vinod Kumar is entitled to get the property in dispute.
5. Learned Counsel for the petitioner has argued that as after executing agreement for sale, Gajendra Singh had become dishonest hence, he put forward his minor son Vinod Kumar and falsely asserted that Brahma Singh had adopted Vinod Kumar and had also executed a Will in favour of Vinod Kumar.
6. It is correct that as Vinod Kumar was not party in the civil suit hence, findings recorded therein are not binding upon him.
7. However, it is the duty of the propounder of a Will to prove the genuineness of the Will. In order to prove the genuineness, surrounding circumstances will have to be explained and doubts about the Will will have to be removed. Mere proof of attestation is not sufficient. Genuineness is to be independently proved.
8. Supreme Court in H. Venkatachala Iyengar vs. B.N. Thimmajamma and Others, AIR 1959 SC 443 has held that if there are surrounding suspicious circumstances then they must be dispelled the propounder of the Will and the doubts, if any, regarding the Will must be cleared. The said authority has been followed in several other authorities of the Supreme Court including Surendra Pal and Others vs. Dr. Saraswati Arora and Another, (1974) 2 SCC 600, Joseph Antony Lazarus (Dead) by LRs. vs. A.J. Francis, (2006) 9 SCC 515, B. Venkatamuni vs. C.J. Ayodhya Ram Singh and Others, AIR 2007 SC 311 and Niranjan Umeshchandra Joshi vs. Mrudula Jyoti Rao and Others, AIR 2007 SC 614.
9. Will was stated to be executed on 1.9.1967. It is an unregistered Will. Its copy has been annexed alongwith supplementary affidavit filed by learned Counsel for the petitioner which was sworn on 31.1.2005 (On page 37). In the said Will it is mentioned that the executant is aged about 48 years; that often he remains ill; that Vinod Kumar younger son of Gejendra Singh real brother
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