Amar Nath vs D.D.C. And Others
2017 Latest Caselaw 7595 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 33
 

 
Case :- WRIT - B No. - 45875 of 2011
 

 
Petitioner :- Amar Nath
 
Respondent :- D.D.C. And Others
 
Counsel for Petitioner :- Saroj Yadav, Anil Sharma
 
Counsel for Respondent :- C.S.C., A.R. Dube, R.K.Shahi
 

 
Hon'ble Manoj Misra, J.

I have heard Sri Rahul Mishra, holding brief of Sri Saroj Yadav, for the petitioner; the learned Standing Counsel for the respondents 1 and 2; Sri R.K. Shahi for the respondent no.3 and have perused the record.

The contesting parties have exchanged their affidavits, therefore, with the consent of the parties, this petition is being decided finally.

The present petition emanates from a dispute in respect of succession to the interest of deceased tenure-holder Sukhdeo. Three sets of objections were filed under section 9 of the U.P. Consolidation of Holdings Act (in short the C.H. Act). One was filed by the third respondent (Bhanu Pratap) claiming himself to be daughter's son of Sukhdeo and legatee under an unregistered Will dated 25.02.1962 executed by Sukhdeo. The second objection was filed by Kamla Devi, mother of third respondent, claiming in the alternative that she be accepted successor of deceased Sukhdeo being his daughter. And the third was filed in respect of a particular plot by one Bholai on the basis of sale deed in respect of which no dispute survives.

The claim of the first and second objector was contested by Ram Daur Singh, father of the petitioner, by claiming that Sukhdeo died issue less; that the will set up is forged; that when Sukhdeo died his brother Musafir (father of Ram Daur Singh) survived him and succeeded to his interest by virtue of section 171 of the U.P. Zamindari Abolition and Land Reforms Act (in short the Z.A. Act), as it existed then; and that, after Musafir's death, Ram Daur Singh inherited his rights.

The Consolidation Officer framed a number of issues, took evidence of both sides, oral as well as documentary, and after considering oral testimony of the attesting witnesses of the Will as well as the parties including documentary evidence such as Parivar Register entries, school leaving certificates, letters, original of the Will, etc., found as follows: (i) that Kamla Devi was daughter of late Sukhdeo; (ii) Bhanu Pratap Singh, the third respondent, was son of Kamla Devi and grand son of Sukhdeo; (iii) that Sukhdeo died in the year 1964 whereas Musafir died in the year 1969; (iv) that the execution of Will dated 25.02.1962 by Sukhdeo in favour of his grand son Bhanu Pratap Singh was duly proved by the two attesting witnesses, namely, Chandra Bhan Singh and Tej Bahadur Singh; and (v) that since more than two years before his death, the testator Sukhdeo was inflicted with paralysis of lower half therefore had difficulty in movement, which was a circumstance as to why the Will was not got registered. It was also observed that in those days for a bequest to be valid under the then existing provisions of the Z. A. Act, registration of Will was not compulsory. Upon finding as above, the claim on the basis of Will was sustained and entries were directed accordingly vide order dated 16.12.1975.

Aggrieved by the order of the Consolidation Officer, the Ram Daur Singh (predecessor-in-interest of the petitioner) filed an appeal under Section 11(1) of the C.H. Act before the Settlement Officer of Consolidation.

The Settlement Officer of Consolidation without disturbing the findings returned by the Consolidation Officer as regards relationship of the testator with Kamla Devi and Bhanu Pratap as also the date of his death, by a cursory order dated 11.03.1983 discarded the Will and upheld the claim of the brother of Sukhdeo on the basis of intestate succession.

From the order of the Settlement Officer of Consolidation, which has been appended as Annexure 5 to the paper book, it appears that the Will was discarded on following grounds: (a) that the predecessor in office of the Settlement Officer of Consolidation had made an observation in his order dated 30.11.1976 that the signature of the testator on the will appeared different from his signature as found in his statement made in some other mutation proceeding dated 25.07.1962; and (b) that if Sukhdeo could give his testimony before Court on 25.07.1962, that is five months after the execution of the Will, there was no reason for Sukhdeo not to get the Will registered.

Surprisingly, while discarding the Will as above, neither the testimony of the witnesses including the attesting witnesses of the Will examined by the propounder of the Will was discussed nor the detailed findings returned by the Consolidation Officer were set aside. It was not even observed as to what were the circumstances in which his predecessor-in-office had made observation, as noticed above, in his order dated 30.11.1976. Even the petitioner has not cared to bring that alleged order dated 30.11.76 or that document on record to enable this court to examine the same and assess its relevance.

Aggrieved by the order passed by the Settlement Officer of Consolidation, the third respondent preferred revision before the Deputy Director of Consolidation.

The Deputy Director of Consolidation, upon examination of the record, found that the witnesses of the objector to the Will had not denied that Sukhdeo was inflicted with paralysis and used to be confined to bed since before his death and was aged about 90 years. He found that, under the circumstances, non-registration of the Will was not such a suspicious circumstance which could defeat the Will, particularly, when its execution was otherwise duly proved by the attesting witnesses with whom the other party claimed no animosity. In nutshell, he found that there was no good reason for the Settlement Officer of Consolidation to upset a well considered judgment of the Consolidation Officer, accordingly, vide order dated 07.06.2011, he set aside the order passed by the Settlement Officer of Consolidation Officer and restored the order passed by the Consolidation Officer.

Assailing the order passed by the Deputy Director of Consolidation, dated 07.06.2011, the present petition has been filed.

The learned counsel for the petitioner has submitted that once the Settlement Officer of Consolidation had noticed that the signatures on the Will were at variance with the signature of the testator that appeared on some other document, the Will was liable to be discarded and, therefore, the order passed by the Settlement Officer of Consolidation was not liable to be interfered with by the Deputy Director of Consolidation. He has also submitted that the Deputy Director of Consolidation exercises revisional powers where under he should not interfere with a finding of fact returned by the appellate court.

The learned counsel for the contesting respondent supported the order passed by the Deputy Director of Consolidation and has submitted that the Settlement Officer of Consolidation rendered an absolutely cryptic judgment which had no legs to stand whereas the judgment of the Consolidation Officer was well discussed and had dealt with the entire evidence of the parties therefore the Deputy Director of Consolidation was justified in restoring the order of the Consolidation Officer after setting aside the order passed by the Settlement Officer of Consolidation. He also submitted that the alleged comparison of signatures by the predecessor in office of the Settlement Officer of Consolidation was completely uncalled for. More so, when there is nothing on record to show that any application was filed for comparison of the signatures with the aid of expert.

I have given thoughtful consideration to the submissions of the learned counsel for the parties and have perused the record.

Before proceeding to deal with the submissions of the learned counsel for the parties, it would be apposite to observe that consequent to the amendment brought by U.P. Act No.3 of 2002, with retrospective effect, that is with effect from 10.11.1980, Explanation (3) has been added in section 48 of the C.H. Act which confers power upon the Deputy Director of Consolidation to re-appreciate any oral or documentary evidence. Accordingly, the Deputy Director of Consolidation not only has power to correct jurisdictional errors but can also examine findings of fact and can correct the same, if required.

As the order of the Settlement Officer of Consolidation was passed after the incorporation of Explanation (3), that is, after 10.11.1980, the revisional court was vested with power to re-appreciate the evidence. Under the circumstances, it cannot be said that the Deputy Director of Consolidation exceeded his jurisdiction by interfering with the finding of fact returned by the Settlement Officer of Consolidation.

In so far as the reasons recorded by the Settlement Officer of Consolidation to discard the Will are concerned, they do not appear to be sustainable. The Settlement Officer of Consolidation laid heavy emphasis on the circumstance that the testator had appeared in court proceeding about five months after the execution of the Will, yet the Will was not registered therefore it created a doubt about the Will. The said circumstance by itself would not create a ring of doubt around the execution of the Will, particularly, when it was proved as well as admitted by the witnesses of the objector to the Will that the testator was inflicted with paralysis and was mostly confined to bed. It was also proved that the testator was aged about 90 years. Therefore, non-registration of the Will which, at that time, did not require compulsory registration, by itself, was not a suspicious circumstance and, in any case, not sufficient enough to discard the Will which was otherwise proved to have been duly executed by the two attesting witnesses with whom the objector to the Will admittedly had no enmity. More so, when the Will was in favour of daughter's son to disinherit testator's brother.

It would be apposite to observe that the finding returned by the Consolidation Officer that the legatee was testator's daughter's son was not disturbed by the Settlement Officer of Consolidation. Even the petitioner's counsel has not assailed the same before this Court.

The other circumstance taken by the Settlement Officer of Consolidation, namely, dissimilarity in signatures appearing on the Will with those appearing on some statement was equally irrelevant for the following reasons. Firstly, because dissimilarity was not noticed by the Settlement Officer of Consolidation who wrote the judgment but by his predecessor-in-office in some order dated 30.11.76, which has not been produced by the petitioner. And, secondly, there is nothing on record to show that the signature on the other document with which comparison was allegedly made was admitted by the propounder of the Will as that of the testator. Further, there appears nothing on record to show that any claim was made for comparison of the signatures by an expert. Under the circumstances, there existed no good reason to undertake any such exercise suo motu. Even before this court nothing has been shown to demonstrate that the signatures in the two documents were strikingly dissimilar; and that the propounder of the Will had admitted that signatures on the two documents were that of the testator. This Court is therefore of the view that the Settlement Officer of Consolidation was not justified in giving weightage to the observation made by his predecessor in office in respect of dissimilarity in signatures appearing in two documents.

In so far as the judgment of the Consolidation Officer is concerned it is well considered and deals with entire evidence, oral as well as documentary, and specific findings have been returned not only in respect of due execution of the Will but also in respect of relationship between the testator and the legatee. He found that the execution of the Will was duly proved by the attesting witnesses with whom no enmity was disclosed by the objector of the Will.

The learned counsel for the petitioner has not been able to demonstrate that the findings returned by the Consolidation Officer were vitiated in any manner or that the testimony of the attesting witnesses was liable to be discarded for any good reason.

In view of the above and keeping in mind that the Will was a natural disposition, where under a grandfather (maternal) had bequeathed his interest in land in favour of his daughter's son (grandson), execution of which was duly proved by the attesting witnesses, and well discussed findings were returned by the Consolidation Officer, which were unnecessarily disturbed by the Settlement Officer of Consolidation on irrelevant considerations, this court is of the considered view that the Deputy Director of Consolidation was justified in restoring the order passed by the Consolidation Officer after setting aside the order passed by the Settlement Officer of Consolidation. This petition therefore lacks merit and is dismissed. Interim order, if any, stands discharged.

Order Date :- 4.12.2017

Sunil Kr Tiwari