Unregistered Wills granting limited interests do not negate partition rights unless claims about the nature of interests are timely raised during consolidation proceedings, reinforcing exclusive jurisdiction under the Consolidation Act.

JUDGMENT :

J.J. MUNIR, J.

1.This is a defendant’s writ petition arising out of a suit for partition under Section 176 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (for short, ‘ZA & LR Act’).

2. The suit for partition was instituted by Smt. Parwati, widow of Ram Narain, against Ramgopal, her late husband’s brother, claiming a half share in the suit property (hereinafter referred to as ‘land in dispute’) on foot of a bhumidhari right that she inherited from her late husband, Ram Narain, upon his demise. She sought a decree of partition and separate possession of her half share. A written statement was filed by Ramgopal before the Sub-Divisional Officer, where the suit has been instituted, resisting the plaintiff’s claim on ground that Parwati was not Ram Narain’s lawfully wedded wife, and for the said reason, through a devise made by Ram Narain, Parwati was given a life estate alone in the land in dispute. She had no right to seek partition or separate possession. A copy of Ram Narain’s Will dated 10.01.1961 was filed along with the written statement and a typewritten copy thereof has been annexed to the writ petition.

3. The Trial Court framed the following issues (translated into English from Hindi) :

(1) Whether the plaintiff, Parwati, and defendant No.1, Ramgopal, are co-tenure holder bhumidhar in possession of the land in dispute?

(2) What are the shares of the plaintiff, Parwati, and defendant No.2 (sic), Ramgopal, in the disputed land?

(3) To what relief is the plaintiff entitled?

(4) Whether the plaintiff has the right to seek partition?

(5) Whether the plaintiff has the right to alienate the land in dispute by Gift, Will, Mortgage etc.?

(6) Whether the defendant’s case is barred by Section 49 of the Consolidation of Holdings Act?

(7) Whether the document mentioned in paragraph No.14 of the W.S. is forged and illegal?

4. The Trial Court answered Issue No.1 in the affirmative; Issue No.2, holding that the plaintiff and the defendant had a half share, as recorded during the consolidation proceedings; Issues Nos.3 and 4 have been decided together in terms of the remark that the plaintiff is a recorded co- tenure holder and there is nothing written in the Will about partition. The answer to the issues is not explicit; Issue No.5 has been answered holding that since the plaintiff is a bhumidhar with transferable rights, she has every right to alienate, but if the Will were proved, the right would end; Issue No.6 has been answered, holding that the suit is not barred by Section 49 of the Uttar Pradesh Consolidation of Holdings Act, 1953 (for short, ‘the CH Act’); and, Issue No.7 has been decided, holding that though it was not necessary for the Will to be registered, but the fact that for 33 years, after its execution, no rights were asserted on the basis thereof, renders it suspicious. There is a remark to the effect also in answering this issue that there is nothing said about division of crops. The Trial Court held that the plaintiff had a half share in the land in dispute and passed a preliminary decree to that effect on 28.02.1994.

5. The defendant, Ramgopal, carried an appeal to the Commissioner, Kanpur Division, Kanpur from the preliminary decree passed by the Sub- Divisional Officer. This appeal came up for hearing before the Additional Commissioner, Kanpur Division, Kanpur, being Appeal No.127 of 1994 on 20.01.1995. It was allowed by the Additional Commissioner and the suit dismissed.

6. The pla