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Allahabad High Court · body

1986 DIGILAW 95 (ALL)

Amar Singh v. Assistant Director of Consolidation, Ghaziabad

1986-01-28

B.L.YADAV

body1986
ORDER B.L. Yadav, J. - This petition under Article 226 of the Constitution is directed against the order D/- 16-10-80 passed by the Asstt. Director of Consolidation allowing the revision filed by respondents 6 and 7 in proceedings under S. 12 of the U.P. Consolidation of Holdings Act. (for short the Act). 2. The facts leading to the present petition are that Chak No. 202 was recorded in the name of Smt. Gillia, widow of Chhukkhan. An objection under S. 12 of the Act was filed by Smt. Sagia and Smt. Reoti, respondents 6 and 7 alleging that they are daughters of Smt. Gilia and Chhukkhan and the latter has executed a will dated 4th Aug.. 1971 in favour of Smt. Gilia, the own mother of the objectors and she was given only a life estate, hence she had no right to execute the will dated 10-4-76 in favour of the petitioners. It was further alleged that the latter will was illegal and that need not be given effect to in the revenue papers rather their names may he entered as bhumidhar being the heirs of their mother. 3. The petitioners filed an objection denying the case of respondents 6 and 7 alleging that Snit. Gilia had executed a will on 10-4-76 in their favour, hence their names may he entered as bhumidhar and the objection of respondents 6 and 7 deserved to be dismissed. 4. The Consolidation Officer held that Smt. Gilia had no right to execute the will D/- 10-4-76, hence the petitioners were not entitled to be entered in place of deceased rather only respondent 7 were entitled to be entered in revenue papers after the death of their mother. The appeal filed by the petitioners was allowed. Thereafter the revision filed by respondents 6 and 7 was allowed and their names were ordered to be entered in place of Smt. Gilia, their mother. Against this order the present petition has been filed. 5. The appeal filed by the petitioners was allowed. Thereafter the revision filed by respondents 6 and 7 was allowed and their names were ordered to be entered in place of Smt. Gilia, their mother. Against this order the present petition has been filed. 5. Sri B. Dayal appearing for the petitioners urged that the second will executed by Smt. Gilia on 10-4-76 in favour of the petitioner was legal and valid and Chhukkhan had no rights to execute the will on 4-8-71 conferring only limited rights on Smt. Gilia, that she had acquired full-fledged rights under the will and was competent to execute the subsequent will D/- 10-4-76 in favour of the petitioners and as Smt. Gilia did not die intestate, hence respondents 6 and 7 could not get any right. 6. Sri N.C. Rajvanshi appearing for respondents Nos. 6 and 7 on the other hand urged that Chhukkhan had executed the will in favour of Smt. Gilia, widow, conferring only limited rights of a Hindu widow and she was not given any right to execute any will, hence the will in favour of the petitioners was illegal. 7. In this case the principal question for consideration is as to whether the will dated 4-8-71 executed by Chhukkhan in favour of his wife Smt. Gilia was valid? Chhukkhan being bhumidhar has transferable rights and he executed the will in favour of his widow conferring rights of a limited owner to the effect that she might not execute any further will during her life and after her death the plots may be inherited by his daughters Smt. Reoti and Smt. Segia (respondents 7 and 6). In these circumstances the intention of the testator is paramount. The well known principle of construction of a will is that the Court must assume itself in the armchair of the testator. Applying this principle Chhukkhan would have considered that in case his widow Smt. Gilia was given absolute rights. she might execute some will or the sale deed and thus deprive his daughters from inheritance. The condition accordingly imposed in the will executed by him appears to be just. A copy of the will is available on the record which is Annexure CA2 to the Supplementary Counter affidavit. she might execute some will or the sale deed and thus deprive his daughters from inheritance. The condition accordingly imposed in the will executed by him appears to be just. A copy of the will is available on the record which is Annexure CA2 to the Supplementary Counter affidavit. To be exact the words in the will are as follows:- " ;g fd esjs i'pkr~ ;fn esjh L=h Jherh fxfy;k nsoh ekStwn gksxh rks loZizFke esjh lEifRr mijksDr Jherh fxfy;k nsoh dks feysxh fdUrq og lEifRr gh ghug;krh ekfyd jgsxh vkSj mldks lEifRr dks fdlh ds gkFk gLrkUrj.k djus dk ;k _.k cUnd djus dk vf/kdkj izkIr u gksxkA vkSj esjh iRuh ds nsgkUr ds ckn vFkok esjh iRuh ds eq>ls igys gh LoxZ yksx oklh gks tkus dh lwjr esa esjh lEifRr Hkwfe/kkjh Hkwfe o edkukr bR;kfn fLFkr xkze HknL;kuk ftldk iw.kZ fooj.k bl ys[k ds vUr esa fn;k x;k fd ekfyd o Hkwfe/kj esjh nksuksa iq=h Jherh fxfy;k iRuh Jh j?kqcj flag o Jherh jsor /keZiRuh Jh psrjke flag fuoklh xzke cqdykuk ftyk dcqyUn'kgj orZeku fuoklh HknL;krk rglhy gkiqM ftyk esjB gksxh vkSj mudks lEifRr ds fo"k; esa esjs leu iw.kZ vf/kdkj fodz; vkfn ds izkIr gksxs vU; fdlh dk esjh lEifRr ls dksbZ ljksdkj fdlh :i esa u gksxkA " 8. From the aforesaid recital of the relevant portion of the will it is clear that Smt. Gilia was given only the life interest. There is a Roman maxim "Non Quod Voluit Testator Sed Quod Dixit In Testatamento Inspicitur," which obviously means that not what the said testator wished but what he actually said in the will has to be considered and taken into account in considering the will. 9. Further the word `Heen Hayat' is a well known term in the law, which obviously means a limited owner having no transferable rights. There is another latin Maxim relevant to the occasion : "Non Aliter A Significatione Verhorum Recedi Oportet Quarn cum Manifestum Est eluid Sensisse Testatorem", which means there can be no departure from the ordinary meaning of the words used in a will except in so far as it appears that the testator meant something different. In the instant case by the use of word `Heen Hayat' it was clear that the testator intended to confer only limited right on his widow. In the instant case by the use of word `Heen Hayat' it was clear that the testator intended to confer only limited right on his widow. Thereafter he again clarified it by saying that in case his widow dies his daughters would inherit and there would be no right of transfer to his widow. The words used in the will are not capable of two interpretations. Hence it is clear that the will dated 4-8-71 executed by Chhukkhan in favour of Smt. Gilia was valid and legal. 10. No doubt by the Land Laws Amendment Act No. 32 of 1975, sub-sec, (2) of S. 169 of the U. P. Z. A. and L. R. Act was omitted. This sub-sec. (2) of S. 169 provided that "No Bhumidhar entitled to have holding in the right of a widow ................ can bequeath by will such holding or part "Now after the deletion of sub-sec. (2) of S. 169 of the U. P. Z. A. and L. R. Act even a widow can execute the will. 11. In Ramji Dixit v. Bhrigunath, AIR 1965 All 1 (FB), it was held that when a female inherited the holding before the enforcement of the U. P. Z. A. and L. R. Act from the last male holder and has become Bhumidhar under S. 18F of the Act or has acquired Bhumidhari rights under Sections 134 and 137, she can transfer such holding and such transfer shall be valid and effective even after her life. Their Lordships of the Supreme Court were also pleased to approve the view taken by this Court (vide AIR 1968 SC 1058 ). There is no denying the fact that even though a widow inherits right of Bhumidhar or she acquires Bhumidhari rights, she can make the transfer. But in case her rights of transfer have been controlled by a will executed earlier in her favour, in that event she would be having no better rights than conferred on her by the will. 12. There is another aspect of the matter which is that by a will even the law of inheritance or succession can be controlled or modified or altered. 12. There is another aspect of the matter which is that by a will even the law of inheritance or succession can be controlled or modified or altered. Even the stranger can be made heir of the last male tenant or the testator and the other heirs, who would have been entitled either under the personal law or under the Tenancy Law, i.e. as provided under S. 171 of the U.P.Z.A. and L.R. Act and S. 35 of the U. P Tenancy At, can be omitted by executing a will ((see Roop Narain v. Ramchandra, 1973 Rev Dec 444 : 1973 All LJ 599, 13. 1 am, therefore of the view that the testator Chhukkhan had executed a valid will in favour of his wife Smt. Gilia and the latter acquired only the rights of limited owner and hence she has no right to execute the will on 10-4-76 in favour of the petitioners and after her death her daughters, respondents 6 and 7 became her heirs. 14. In view of the discussions made above, the writ petition lacks merit and is hereby dismissed with costs.