HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. 5 CIVIL MISC. WRIT PETITION NO. 64464 OF 2009 Har Govind and others Vs. Deputy Director of Consolidation, Bulandshahr Hon'ble A.P. Sahi, J.
Heard Sri Gulab Chandra, learned counsel for the petitioners and Sri S.P. Singh, learned counsel for the respondent nos. 4 and 5.
The dispute relates to succession to the holding of late Kishan Chandra, who died on 17.06.1995. The petitioners before this Court are the real nephews of late Kishan Chandra and sons of Dal Mod. The name of the petitioners came to be mutated on the basis of a registered Will dated 08.06.1995. Thereafter, consolidation operations set in and Smt. Ranviri, the married daughter of late Kishan Chand, filed objections. The objection was rejected whereafter she filed an appeal that was also dismissed but on revision, the orders of the Consolidation Officer and the Settlement Officer Consolidation were reversed on the ground that she was entitled to succeed as per the provisions of Section 171 of the U.P.Z.A. & L.R. Act, 1950 coupled with the fact that the petitioners have failed to prove the execution of the registered Will in their favour.
Sri Gulab Chandra submits that as a matter of fact, the Will has been proved, therefore, the Deputy Director of Consolidation had no authority in law to exercise any original jurisdiction to reverse the said findings that too even against the weight of evidence on record. He, therefore, contends that the order of the Deputy Director of Consolidation is erroneous both on facts as well as in law. Sri Gulab Chandra has invited the attention to the Rule of succession as was then existing under Section 171 of the U.P. Zamindari Abolition & Land Reforms Act, 1950. The same is reproduced hereinunder as it stood prior to the amendment through U.P. Act No. 29 of 1998:
"171. Subject to the provisions of Section 169 and 173, when a bhumidhar, sirdar or asami being a male dies, his interest in his holding shall devolve in accordance with the order of succession given below:
(a) male lineal descendant in the male line of descent:
Provided that the son or sons of a pre-deceased-son how-low-so-ever shall inherit the share which would have devolved upon the deceased if he had been then alive;
(b) widow;
(c) father;
(d) mother, being a widow;
(e) father's father;
(f) father's mother, being a widow;
(g) widow of a male lineal descendant in the male line of descent;
(h) step-mother, being a widow;
(i) unmarried daughter;
(j) daughter's son;
(k) brother, being the son of the same father as the deceased;
(l) unmarried sister;
(m) brother's son, the brother having been a son of the same father as the deceased;
(n) father's father's son
(o) brother's son's son;
(p) father's father's son's son."
Replying to the said submissions, Sri S.P. Singh submits that even otherwise accepting what is being said by the learned counsel for the petitioner, the mother of the respondent nos. 4 and 5 namely Ranviri being the married daughter was entitled to inherit the same.
Needless to mention that the respondent nos. 4 and 5 were substituted during the pendency of the appeal on the death of their mother. Sri Singh submits that the Will having not been proved, the Deputy Director of Consolidation has rightly recorded findings after going through the statements of the attesting witnesses and hence no interference is called for.
What appears is that the widow of Kishan Chand, Smt. Rajwanti was alive when the said objections came to be filed. According to Sri Gulab Chandra she is even alive today. Smt. Rajwanti did not file any objection and the name of the nephews of Kishan Chandra came to be mutated. The objection came to be filed by the married daughter who as per the then law existing could not have inherited the property as her mother was still alive being the widow of late Kishan Chandra. Apart from this, the line of succession as per the existing provisions clearly rules in favour of the widow and it does not appear as to how the name of the widow did not came to be mutated in the revenue records.
It appears that the contest went on between the nephews and the married daughter and the authorities completely overlooked the fact that the widow was still alive and succession could not have been altered as the same operated under the provisions of Section 171 of the 1950 Act unless the same was sought to be deviated through some testament in terms of Section 169 of the Act. The testamentary disposition in favour of the petitioners has been disbelieved by the Deputy Director of Consolidation. In the opinion of the Court, a Will has to be proved in view of the provisions contained in Section 68 of the Indian Evidence Act. The Deputy Director of Consolidation has clearly recorded findings to the effect that the statement of the attesting witnesses nowhere corroborate the factum of the execution of the Will as they have expressed their innocence about the knowledge of the execution, which finding cannot be said to be perverse. The order of the Deputy Director of Consolidation is within the limits of Section 48 where an issue relating to a fact can also be appreciated provided the same have been misconstrued or misread by the lower authorities and their findings are perverse. In the instant case, the Deputy Director of Consolidation after assessing the evidence has also taken into account the ingredients of Section 68 of the Indian Evidence Act and hence in the opinion of the Court, the conclusion so drawn on an issue relating to facts cannot be interfered with in the exercise of jurisdiction under Article 226 of the Constitution of India.
Once this conclusion is arrived at, the issue remains as to who succeeds to the holding of late Kishan Chandra. In my opinion, the provisions of Section 171 as existing on the date of death of Kishan Chandra clearly indicates that the widow falls within clause (b) of the aforesaid section getting the first right of inheritance after male lineal descendants. It is undisputed that Kishan Chandra had no male issue and, therefore, his widow Smt. Rajwanti would succeed to the holding.
Accordingly, the impugned order stands modified to the extent that the holding shall now stand recorded in favour of Smt. Rajwanti wife of late Kishan Chandra who is stated to be alive and the records shall be maintained accordingly.
The writ petition stands disposed of accordingly.
Dt. 13.12.2011 Akv