JUDGMENT

Lakshmi Prasad, J. - This special appeal is directed against the judgment of a learned single Judge of this Court by which the Appellant's Writ Petition Under Article 226 of the Constitution has been dismissed.

2. The Appellant is the own brother of Respondents 5 and 6. Sadasukh, their father, owned certain Bhumidhari holdings. He executed a will in respect of the same by which he gave certain specific plots to the Appellant whereas other plots to each of Respondents 5 and 6. In his own life time under the provisions of UP Consolidation of Holdings Act Sadasukh was allotted Chaks consisting of plots other than those he held and in respect of which he had executed the will. Subsequent to the death of Sadasukh his Chaks were mutated in the names of his three sons. Thereafter Lal Behari Awasthi, Respondent No. 6, filed a suit for partition claiming 1/3rd share. The stand of the Appellant in that suit that he was entitled to a share in accordance with the will and not only to 1/3rd share was rejected by the Assistant Collector, 1st Class Unnao. The first appeal to the Addl. Commissioner and the second appeal to the Board of Revenue were dismissed. It was in these circumstances that he preferred a writ petition giving rise to this appeal.

3. We have heard the Learned Counsel for the Appellant and the contesting Respondents 5 and 6. The view taken by the Revenue Court was that in the circumstances stated above Section 152 of the Indian Succession Act applied and as such the will could not be given effect to. When the matter came up before the learned single Judge he accepted the contention of the Appellant that on the facts of the case Section 163 of the Indian Succession Act and not Section 152 applied, but still he dismissed the petition mainly on the ground that it was not possible to say with any precision on the basis of the material on record as to what property had taken the place of the property which had been willed by Sadasukh in favour of his three sons respectively.

4. The Learned Counsel for the Appellant has urged that the reason given by the learned single Judge for rejecting the petition is not real. We are not inclined to accept the contention. It is conceded in the judgment under appeal that in so far as in consolidation operations Chaks consisting of land of equal are allotted, land of valuation equal to the valuation of specific plots bequeathed to each of the three sons could very easily be given to each of the three legatees according to the contents of the will. Despite that the learned single Judge thought that the petition must fail as that was not the function of the Court. We feel that the learned Judge fell in error in taking that view of the matter. Once it is found that notwithstanding the change in the land specifically bequeathed to each of the three sons, it is possible to allot to each of them land of a valuation equal to the value of the land bequeathed in favour of each son respectively, effect must be given to the will. We are accordingly of opinion that if Section 163 of the Indian Succession Act applies to the case the impugned orders must be quashed with a direction that the revenue authorities should proceed to apportion the Chaks amongst the three sons of Sadasukh so as to give effect to the will.

5. The only other question that calls for determination in the appeal is if Section 152 or Section 163, Indian Succession Act applies to the facts of the case. The view taken by the learned single Judge is that Section 163 applies. Learned Counsel for the contesting Respondents contends that in fact Section 152 applies and not Section 163 and the view of the learned single Judge to the contrary is not correct. Sections 152 and 163 are reproduced in the judgment under appeal. It is not necessary to reproduce them over here again. Section 152 provides for the legacy to be deemed under two circumstances mentioned therein (1) when the property specifically bequeathed does not belong to the testator