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Allahabad High Court · body

1979 DIGILAW 30 (ALL)

Achutanand v. Deputy Director of Consolidation, Varanasi

1979-01-04

K.P.SINGH

body1979
ORDER K.P. Singh, J. - This writ petition is directed against the judgment of the Kshetriya Deputy Director of Consolidation, Varanasi dated 31-5-1972 whereby the revision petition filed by the contesting opposite party No. 4 Ram Lakshman Pandey was allowed. The relationship between the contesting parties would be evident from the following pedigree :-(For Pedigree see next page) 2. The petitioners had filed an objection under Section 9-A sub-clause (2) of U. P. C. H. Act basing their claim on a registered will dated 6-5-1965 executed by their grand-father Harbansh Pandey in respect of 11 Bighas, 12 Biswas and 15 Dhoors. The claim of the petitioners was accepted by the Consolidation Officer through his judgment dated 28-7-1971. Aggrieved by the decision of the Consolidation Officer the contesting opposite party Ram Lakshman Pandey had filed an appeal which was dismissed by the appellate authority through its judgment dated 12-11-1971. Thereafter the contesting opposite party had preferred a revision petition which was allowed through the impugned judgment dated 31-5-1972 of the revisional court. The petitioners being aggrieved by the judgment of the revisional court have come to this Court under Article 226 of the Constitution. 3. In the basic year Harbansh Pandey was recorded over the disputed land. It appears that Munnanji Pandey father of the present petitioners had set up a will and had denied the claim of the contesting opposite party No. 4 Rain Lakshman Pandey. Similarly the petitioners had set up another will in their favour denying the claim of the contesting opposite party No. 4 Ram Lakshman Pandey as well as the claim of their father Munnanji Pandey, who is opposite party No. 45 in the present writ petition. 4. The learned counsel for the petitioners has contended before me that the Deputy Director of Consolidation has patently erred in not accepting the will executed by Harbansh Pandey in favour of the petitioners. According' to him the Deputy Director of Consolidation has not drawn presumption in favour of the genuineness of the document relied upon by the petitioners in view of the provisions of Section 79 of the Indian Evidence Act. According' to him the Deputy Director of Consolidation has not drawn presumption in favour of the genuineness of the document relied upon by the petitioners in view of the provisions of Section 79 of the Indian Evidence Act. He has also contended that in view of Sections 40, 41 and 60 of the Indian Registration Act, the document should have been accepted by the Deputy Director of Consolidation and the Deputy Director of Consolidation has arbitrarily ignored the will in favour of the petitioners, hence the findings recorded by the Deputy Director of Consolidation are perverse and should be quashed. He has also contended that a heavy burden lay upon the contesting opposite party to show that the will was not executed in accordance with law when the will relied upon by the petitioners is a registered document. 5. The learned counsel for the contesting opposite party has tried to refute the contentions raised on behalf of the petitioners. According to him the Deputy Director of Consolidation has appraised the evidence on record and has not relied upon the statements of the attesting witnesses examined by the petitioners to prove the will. In such circumstances the will relied upon by the petitioners has not been proved in accordance with law and the Deputy Director of Consolidation was fully justified in not relying upon the will set up by the petitioners and has rightly come to the conclusion that the claim of the petitioners based on the will has not been substantiated. He has further submitted that per pedigree the Deputy Director of Consolidation has determined the shares of the parties which works out substantial justice between the parties, hence the impugned judgment should not be interfered with. 6. I have examined the contentions raised on behalf of the parties. 7. The Deputy Director of Consolidation has expressed himself in the following words: - "Is prakar ke gawah se yes asha nahi ki ja sakti hai ki woh kisi dastawej ko swayam parhe ya kisi dusrey vyakti ke dwara parhe janey par usey samajh sakey: atah is prakar ke gawah se kisi bhi dastawej par sakshi ke rup me has-takshar banwaya ja saki lha, Kyonki gawah swayam dastawej ko parhney athwa samajhne me asamarth tha. In paristhitiyon me main is nishkarsh par pahunchta hun ki vipakshi dwara dinank 6-5-65 ka kathit vasiyatnama vidhiwat nahin sidh kiya ja saka aur is vasiyat-namey ke adhar par achyutanand adi ko vivadgrast bhumi me koi halt nahin mil sakta." 8. The Deputy Director of Consolidation has also observed in his judgment as below :- "Parantu yeh aspasht hai ki vasiyatnamey ke donon gawahon ne jo bayan diye hain usse vasiyatnamey ka likha jana tatha uska registry kiya jana Vidhiwat sidh nahin hota. Dono gawah apney bayano se yeh sandeh utpanna kaftey hain ki vastav me wasiyatnama uski upasthiti me likha gaya tha aur unhonne usey parhkar tatha samajh bujh kar us-par hastakshar banaya tha". 9. From the above extrats of the impugned judgment it is clear to me that Deputy Director of Consolidation has not believed the statement of the attesting witnesses and has thus arrived at the conclusion that the will relied upon by the petitioners was not proved in accordance with law. Both the counsel do not dispute that the will requires attestation and when the statements of the attesting witnesses did not inspire confidence of the revisional court, it is difficult to say that the findings recorded by the Deputy Director of Consolidation suffer from mistake of law apparent on the face of the record. 10. Section 79 of the Evidence Act raises a presumption about the genuiness of the certified copy when the document is substantially in the form and purports to be executed in the manner as directed by law in that behalf. 11. In the present case when the revisional court, has not accepted the statement of the attesting witnesses it is clear that the document was not executed in the manner as directed by law. The contention of the learned counsel for the petitioners that in view of the provisions of Section 79 of the Evidence Act the genuineness of the will should have been presumed, appears to me without any substance. 12. As regards the petitioners' contention based on the provisions of Sections 40, 41 and 60 of the Indian Registration Act it is sufficient to say that the document may be admissible for the purpose of proving that the document has been duly registered in the manner provided by this Act. 13. 12. As regards the petitioners' contention based on the provisions of Sections 40, 41 and 60 of the Indian Registration Act it is sufficient to say that the document may be admissible for the purpose of proving that the document has been duly registered in the manner provided by this Act. 13. In the present case the will relied upon by the petitioners may be presumed to have been duly registered but the petitioners cannot rely upon the will for substantiating their claims unless they have succeeded in proving the will in accordance with law'. 14. In the circumstances of the present case it is proper to refer to a ruling reported in AIR 1955 All 573 : (1955 All LJ 741) Misri Lal v. Bhagwati Prasad, wherein Honble Mootham. C. J. has observed below' (at page 748 of All LJ): - "The Registrars certificate is evidence of admission of execution by executant and that it self is evidence admissible to prove the due execution of the document. The question whether it is sufficient evidence must depend upon the circumstances." and Honble Randhir Singh, J. has observed as below: - "Where the proof of execution depends on circumstances other than the admission of execution by the executants, such as the due attestation or identity of the executants who appeared before the sub-Registrar the endorsement of the Sub-Registrar may not be sufficient proof of the execution of the deed, but there can be no doubt that the admission of the execution by the executants whose identity could not be disputed, and in a case where no question of proper attestation arises, appearing in the endorsement would be evidence of execution of the document, or at any rate would be some evidence of execution". 15. As I have indicated that the will relied upon by the petitioners requires attestation and the Deputy Director of Consolidation has not placed reliance upon the statement of attesting witnesses, the aforesaid will is not properly attested and the petitioners cannot succeed in placing reliance upon the will to substantiate their claim. To my mind there is no error apparent on the face of the record in the impugned judgment and the petitioners have failed to prove due execution of the will relied upon by them. 16. To my mind there is no error apparent on the face of the record in the impugned judgment and the petitioners have failed to prove due execution of the will relied upon by them. 16. Per pedigree the petitioners along with their father Munnanji Pandey, opposite party No. 5 are entitled to half share in the property of Harbans Pandey, who was recorded in the basic year and the contesting opposite party No. 4 Ram Lakshman Pandey is entitled to half share in the disputed property. Since the Deputy Director of Consolidation has given half share to the petitioners father Munnanji Pandey and half share to the contesting opposite party No. 4 Ram Lakshman Pandey the will set up by Munnanji Pandey was not recognised by the Consolidation Officer and he had not. preferred any appeal against the judgment of the Consolidation Officer, hence to my mind due share has been granted to the petitioners father according to the pedigree and the claim of the contesting opposite party No. 4 Ram Lakshman Pandey to the extent of half share was rightly recognised by the Deputy Director of Consolidation. The impugned Judgment has done substantial justice between the parties and need not be interfered with in writ jurisdiction. 17. For the reason given above, the writ petition lacks merit and it is accordingly dismissed. Parties shall bear their own costs.