Allahabad High Court
Ram Vishal And Others vs D.D.C. And Others on 26 May, 2011
Bench: Amreshwar Pratap Sahi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 5
Case :- WRIT - B No. - 29115 of 2011
Petitioner :- Ram Vishal And Others
Respondent :- D.D.C. And Others
Petitioner Counsel :- Manvendra Nath Singh
Respondent Counsel :- C.S.C.,S.S. Mishra
Hon'ble Amreshwar Pratap Sahi,J.
Heard Sri M.N. Singh learned counsel for the petitioners and Sri Shyam Sunder Mishra, learned counsel for the respondent no.2.
The petitioners claim succession to the holding of late Chhedi Lal on the basis of an unregistered will. They further deny the blood relationship of the respondent no.2 and urge that she is not the real sister of late Chhedi Lal. The matter was contested before the Consolidation Officer, who on the basis of the evidence led before him, believed the will set up by the petitioners and rejected the claim of the respondent no.2. Aggrieved, the respondent no.2 preferred an appeal before the Settlement Officer Consolidation, which was dismissed by him vide order dated 7th August, 2002. Against which the respondent no.2 preferred a revision which has been allowed by the Deputy Director of Consolidation holding that on the basis of the evidence on record, the respondent no.2 is the sister of late Chhedi Lal and secondly, the will set up by the petitioners will not be presumed to have been proved as the attesting witnesses had not signed both the pages of the will.
Sri Singh, learned counsel for the petitioners submits that this finding of the Deputy Director of Consolidation particularly on the issue of attestation of the will, is not in conformity with the provisions of Section 68 of the Indian Evidence Act and has been recorded without reversing the finding recorded by the Consolidation Officer. His further submission is that the Consolidation Officer had clearly recorded that the two attesting witnesses had proved the will and if the said finding has not been reversed then merely because of the fact that the pages do not bear the signatures of the attesting witnesses, cannot be said to be sufficient to disbelieve the will.
Learned counsel for the contesting respondent no.2, Sri Mishra submits that the attesting witnesses are interested witnesses and the relatives of the petitioners, and this will was practically forged to nonsuit the claim of the answering respondent and was never executed by late Chhedi Lal. He further submits that so far as the status of the answering respondent being that of the sister of late Chhedi Lal is concerned, the same stands established by virtue of the evidence that was led in the shape of the Succession Certificate dated 6h March, 1993 as also the declaration in the G.P.F. account of late Chhedi Lal, who was an employee of the Basic Shiksha Parishad. He, therefore, submits that the answering respondent being the sister of late Chedi Lal was entitled to inherit the holding and that the petitioners had set up a forged will, which has been disbelieved by the Deputy Director of Consolidation, hence, the impugned order does not require any interference under Article 226 of the Constitution of India.
It is by now well settled by a series of decisions that the Deputy Director of Consolidation exercises wide powers under Section 48 of the U.P.C.H. Act and he can enter into all questions of fact and law that have been raised before the Consolidation Officer or Settlement Officer Consolidation but where the findings of fact have been recorded on the basis of evidence, the same can be interfered with only on an appropriate ground for which reasons have to be recorded in writing. In the instant case, the Consolidation Officer has recorded a clear finding to the effect that the two attesting witnesses of the will had entered into the witness box and had proved the will. This finding has not been specifically reversed by the Deputy Director of Consolidation. The only finding recorded by the Deputy Director of Consolidation is that since the attesting witnesses had not signed both the pages, therefore, the execution of the will is doubtful. The Deputy Director of Consolidation erred by not adverting to the principles of law that have been enunciated for proving of a will keeping in view the provisions of Section 68 of the Indian Evidence Act. He has also not reversed the finding of the Consolidation Officer. In view of this, the findings recorded by the Deputy Director of Consolidation only to that extent cannot be sustained. The execution of the will and its surrounding circumstances, if suspicious, have also to be assessed before believing the same.
So far as the issue relating to the respondent no.2 being the sister of late Chhedi Lal is concerned, in my opinion, the Deputy Director of Consolidation is perfectly justified in recording a finding on the basis of the Succession Certificate and other evidence on record that she is the sister of late Chhedi Lal. Apart from this, it would be appropriate to mention that so far as the difference in the name of the village as recorded by the Consolidation Officer is concerned, the same would not be relevant at all, inasmuch as, there is no dispute about the parentage of late Chhedi Lal or his identity as such. Not only this, the will which is being relied upon by the petitioners itself recites that Chhedi Lal had allegedly executed a will while working as an employee in an institution of Basic Shiksha Parishad in village Amlihapal. In view of this, the finding recorded to that extent by the Deputy Director of Consolidation cannot be faulted with.
Accordingly, the writ petition is partly allowed. The finding recorded by the Deputy Director of Consolidation that the respondent no.2 is the sister of late Chhedi Lal is affirmed. The order of the Deputy Director of Consolidation whereby the will set up by the petitioners had been disbelieved is set aside and the matter is remaded back to the Deputy Director of Consolidation to decide the impact of the evidence led on the basis of the will as set up by the petitioners in the light of the observations, made hereinabove as expeditiously as possible preferably within a period of three months from the date of presentation of a certified copy of this order before him.
Order Date :- 26.5.2011
Shiraz
