Ram Krishna Sharma vs Smt. Nanhi Devi And Others
2011 Latest Caselaw 1264 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. 05
 
CIVIL MISC. WRIT PETITION NO. 22533 OF 2011 
 
Ram Krishna Sharma.
 
 Vs.
 
 Smt. Nanhi Devi @ Indra Devi and others.
 
Hon'ble A.P. Sahi, J.

Heard Sri B.B. Jauhari, learned counsel for the petitioner and Sri Pulak Ganguly, learned counsel for the respondent no. 1.

The undisputed pedigree between the parties is gainfully reproduced below:

Buldev Prasad

Babu Ram Sohan Lal Jhamman Lal

Ram Krishna Sharma Smt. Nanhi Devi Smt. Chameli Devi

(Petitioner) @ Indra Devi (Widow)

(Respondent No. 1)

The agricultural holdings of Sohan Lal and Jhamman Lal are being claimed by the petitioner by virtue of succession under Section 171 read with Section 172 of the U.P. Zamindari Abolition & Land Reforms Act, 1950 whereas the agricultural holdings of Sohan Lal and Jhamman Lal are being claimed by the respondent no. 1, the daughter of Sohan Lal, on the ground that she has inherited such property by virtue of a Will executed by Sohan Lal in favour of the respondent no. 1 and another Will executed by Smt. Chameli Devi in favour of the said respondent. The Will executed by Sohan Lal is dated 14.04.1985, which is unregistered, whereas the Will dated 15.07.1985 executed by Smt. Chameli Devi is a registered Will.

The Consolidation Officer before whom the dispute was initially contested, found the Will set up by the respondent no. 1 to be proved, and accordingly issued directions for recording the name of the said respondent. On appeal, the same was reversed by the Settlement Officer, Consolidation in favour of the petitioner. A revision was filed by the respondent no. 1 and the revision has now been allowed by the Deputy Director of Consolidation, vide impugned order dated 4th March, 2011, upholding the order of the Consolidation Officer. Resultantly the petitioner has come up in this petition questioning the correctness of the orders passed against him.

Sri B.B. Jauhari, learned counsel for the petitioner inviting the attention of the Court to the pedigree contends that the property has to pass on by inheritance to the petitioner, as the Wills set up by the respondent no. 1 do not stand proved, and no finding has been recorded either by the Consolidation Officer or by the Deputy Director of Consolidation in conformity with the provisions and the ingredients as prescribed under Section 63(c) of the Indian Succession Act, 1925 read with the provisions of Section 169 of the U.P. Zamindari Abolition & Land Reforms Act, 1950. He further submits that the Wills set up by the respondent no. 1 have not been proved in accordance with the procedure as prescribed under Section 68 of the Indian Evidence Act, 1872 and in the absence of any such finding, the order impugned deserves to be set aside.

On facts Sri B.B. Jauhari further submits that the statement of the attesting witnesses also do not tally with the statements of the other witnesses and in particular he has invited the attention of the Court to the statements of Ganga Prasad and Parmeshwari Dayal in relation to the registered Will dated 15.07.1985. It is urged that Ganga Prasad on the one hand stated that the entire execution of the Will by Smt. Chameli Devi on 15.07.1985 was conducted through the aid of Parmeshwari Dayal whereas Parmeshwari Dayal in his statement denied the same. This contradiction according to Sri Jauhari raises a serious doubt and suspicion about the execution of the Will itself. He further contends that in view of the various judgments of the Apex Court Parmeshwari Dayal being the husband of the beneficiary under the Will has established his presence which further makes the circumstances more doubtful and the judgments of the Apex Court come to the aid of the petitioner on this count. He has filed a compilation of the said judgments, which are as follows:

1. H. Venkatachala Iyengar Vs. B.N. Thimmajamma and others, AIR 1959 SC 443.

2. Ramchandra Rambux Vs. Champabai and others, AIR 1965 SC 354.

3. Lalitaben Jayantilal Popat Vs. Pragnaben Jamnadas Kataria and others, (2008) 15 SCC 365.

4. S.R. Srinivasa and others Vs. Padmavathamma, (2010) 5 SCC 274.

The matter was heard yesterday i.e. 20.04.2011 and the learned counsel for the respondent no. 1, Sri Pulak Ganguly on the questions framed sought time to assist the Court with instructions received from his client today. Thereafter the matter has been heard and Sri Pulak Ganguly submits that he does not propose to file any counter affidavit as the issues involved are purely legal.

He has, however, invited the attention of the Court to the certified copy of the statement dated 27.01.1987 recorded in Misc. Case No. 339 of 1987 before the Tehsildar Nawab Ganj, District Bareilly where Smt. Chameli Devi, Executor of the Will dated 15.07.1985, in her statement has admitted the execution of the said Will. On the strength of the said document, Sri Ganguly submits that the Consolidation Officer did not commit any error in concluding that the Wills have been executed and even otherwise, Sohan Lal being the father of the petitioner had rightly executed the unregistered Will about which there can be no doubt. He, therefore, contends that the respondent no. 1 being the sole heir of Sohan Lal and having a Will in her favour from Smt. Chameli Devi also, there was absolutely no room for any doubt to raise a suspicion about the execution of the Wills. He, therefore, contends that the conclusion drawn by the Deputy Director of Consolidation does not suffer from any infirmity. Hence, the impugned order does not deserve any interference. It is, therefore, submitted that the writ petition be dismissed.

Having heard learned counsel for the parties, a perusal of the order of the Consolidation Officer clearly indicates that he had framed issues and has arrived at findings on the basis of the material that was placed before him, including the statements of the witnesses as also the marginal witnesses of the Will. Non-mentioning of the plot numbers was also a reason given to reject the Will but the same was not accepted. The Consolidation Officer further found that there was a statement of Smt. Chameli Devi herself recorded before the Tehsildar which also indicates that not only Sohan Lal but also Smt. Chameli Devi both have executed the Will in favour of the respondent no. 1 and after having recorded these findings, and having discussed the evidence on record, he arrived at the conclusion that the case set up by the respondent no. 1 deserves to be accepted.

When the matter went up in appeal, the Settlement Officer, Consolidation by recording a conclusion that since the Will executed by Smt. Chameli Devi does not contain the signatures of the marginal Witnesses in the second page coupled with the funds having been provided by Parmeshwari Dayal was sufficient to prove that the Will had not been executed by Smt. Chameli Devi out of her own freewill.

Apart from this, the Settlement Officer, Consolidation did not delve into the findings recorded by the Consolidation Officer nor did he discuss any material evidence with regard to the probative value of the Will or its execution. The appellate order, therefore, came to be assailed by the respondent no. 1 before the Deputy Director of Consolidation, who has reversed the order of the Settlement Officer, Consolidation.

A perusal of the order of the Deputy Director of Consolidation indicates that he has upheld the findings recorded by the Consolidation Officer and has committed the same error as was committed by the Settlement Officer Consolidation by recording conclusions without discussing the alleged inconsistencies in the statements as pointed out before this Court. The Deputy Director of Consolidation also did not delve into the issues relating to the ingredients of Section 63(c) of the Indian Succession Act, 1925 read with the provisions of Section 68 of the Indian Evidence Act, 1872 to conclude as to whether the Will had been executed and whether the surrounding circumstances were such that the Will was proved. The Deputy Director of Consolidation held that the findings recorded by the Consolidation Officer were sufficient to uphold the contention of the respondent no. 1 and accordingly, set aside the order of the Settlement Officer, Consolidation.

In the opinion of the Court neither the probative value of the statement of Smt. Chameli Devi dated 18.04.1987 as referred to hereinabove, a certified copy whereof has been placed on record, nor the statements of Ganga Prasad and Parmeshwari Dayal had been assessed by the Settlement Officer, Consolidation before setting aside the order passed by the Consolidation Officer. The same exercise was adopted by the Deputy Director of Consolidation who also did not proceed to assess the same.

In such a situation, the order of the Deputy Director of Consolidation dated 4th March, 2011 as well as the order of the Settlement Officer, Consolidation dated 09.12.2010 are set aside. The writ petition is allowed.

The matter is remanded back to the Settlement Officer Consolidation to decide the matter afresh in the light of the observations made hereinabove after giving an opportunity of hearing to the parties and dealing with the evidence which is already available on record within a period of three months from the date of presentation of a certified copy of this order before him.

Dt. 21.04.2011

Akv