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2024 Supreme(All) 1728
IN THE HIGH COURT OF ALLAHABAD
MANISH KUMAR, J.
Jagdish And Another - Petitioners
Versus
Deputy Director Consolidation Sitapur - Respondent
WRIT B NO. 4784 OF 1981.
Decided On : 06-05-2024
For the Petitioners: D.K. Trivedi, Ganesh Gupta, R.K. Sharma, Raj Kumar Yadav.
For the Respondents: C.S.C., B.C. Agarwal, Durgesh Kumar Pandey, P.C. Gupta, Sri. P.L.Mishra, Vineet Kumar Pandey.
The testimony of a marginal witness is sufficient to prove a Will, and the absence of the scribe does not invalidate it.
Headnote:(A) U.P. Zamindari Abolition and Land Reforms Act, 1950 - Section 171(2)(b) - U.P. Consolidation of Holdings Act, 1953 - Writ petition for quashing revisional order regarding land rights based on a disputed Will - The petitioner claimed rights on the basis of a certified copy of a registered Will, while the respondents contested the validity of the Will and the petitioner's claim. (Paras 3-5, 10-12)
(B) Proof of Will - The court emphasized that the statement of a marginal witness is sufficient to prove a Will, and the absence of the scribe does not invalidate the document. The revisional court's reliance on conjecture was deemed erroneous. (Paras 15-18)
Facts of the case:
The petitioner claimed rights to agricultural land based on a Will executed by the original tenure holder, which was disputed by the deceased's relatives. The original Will was misplaced, leading to reliance on a certified copy.
Findings of Court:
The court found that the Will was duly proved and the revisional court erred in its judgment.
Issues: The main issues included the validity of the Will and the appropriateness of the revisional court's findings.
Ratio Decidendi: The court ruled that the marginal witness's testimony sufficed to establish the Will's validity, rejecting the revisional court's reliance on the absence of the scribe.
Result: Writ petition allowed; the revisional order quashed.
JUDGMENT
Manish Kumar, J.
Heard learned counsel for the petitioners, Sri. Hemant Kumar Pandey, learned Standing Counsel for the State and learned counsel for the private respondents.
2. The present writ petition has been preferred for quashing of the impugned revisional order dated 19.08.1981 passed by the respondent no. 1/Deputy Director of Consolidation and with a further prayer to direct the respondent no. 1 not to implement the order contained as Annexure no. 3.
3. Learned counsel for the petitioners has submitted that the present writ petition has been filed by Jagdish i.e. the petitioner no. 1 claiming his right on chak Nos. 621 & 622 on the basis of the certified copy of the registered Will dated 12.03.1979 executed in his favour by Late Sarju, who was the original tenure holder of the said chak.
4. The petitioner no. 2 i.e. Smt. Sukhdei was the widow of Late Sarju and on the basis of same, she was claiming her right on the said property as per Section 171(2)(b) of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as 'the Act, 1950').
5. It is further submitted that the respondent nos. 2, 3 & 4 were claiming their rights being the real brothers of Late Sarju and denying that Smt. Sukhdei/petitioner no. 2 was the wife of Late Sarju and disputed the Will as well and Late Sarju has no male descendants.
6. It is further submitted that during the pendency of the present writ petition, Smt. Sukhdei had expired and an application was moved for deletion of her name and the said application was allowed and the deletion was made on 18.12.2005, deleting the name of Smt. Sukhdei as petitioner no. 2. During the pendency of the present writ petition, the respondent nos. 2, 3 & 4 have also expired and in their place, their legal representatives/heirs have been substituted and for convenience, they will be referred as respondents.
7. Sri. Vineet Kumar Pandey, is representing the respondent no. 3, whereas counsel for the respondent nos. 2 & 4 despite the matter has been taken in the revised list and the notice is pasted outside the Court that the old matters will not be adjourned, they are neither present nor any request has been made on their behalf for adjournment of the case.
8. It is further submitted that the registered Will dated 12.03.1979 has been mis-placed, so the petitioner no. 1 has raised his claim after obtaining the certified copy of the Will from the Office of the Registrar. The Will presented/relied by the petitioner no. 1 was disputed by the respondent nos. 2, 3 & 4. The petitioner no. 2/Late Sukhdei also raised her claim in the proceedings before the Settlement Officer Consolidation being the widow of Late Sarju. The said matter was decided by the Consolidation Officer under Section 12 of the U.P. Consolidation and Holdings Act, 1953 in favour of petitioner no. 1 by its order dated 29.11.1979.
9. Against the said order, the private respondents preferred an appeal which was also dismissed by the Settlement Officer Consolidation by its order dated 26.03.1980 and affirmed the order passed by the Consolidation Officer with a finding that the Will has been proved on the basis of statement of Shri. Mohd. Umar, who was the marginal witness of the Will.
10. Against the appellate order, the private respondents preferred a revision before the Deputy Director of Consolidation, which was allowed in their favour without appreciating the evidence adduced by the petitioner no. 1 and without taking into account the findings given by the Consolidation Officer and the Settlement Officer Consolidation. Merely on the basis of conjectures and surmises, the revision was allowed in favour of the private respondents and feeling aggrieved by the same, the present writ petition has been preferred.
11. On the other hand, learned counsel for respondent no. 3 has submitted that the petitioner no. 1 had not filed the original registered Will before the Consolidation Officer and the Settlement Officer Consolidation. In
