Sheo Nath v. Rajjoo — 1992 DIGILAW 54 (ALL)

JUDGMENT Brijesh Kumar, Member - These are two second appeals directed against the judgment and decree dated 29.7.841 passed by the Additional Commissioner, Jhansi Division, Jhansi, allowing the appeal No. 25/24 of 1983 - Rajju v. Ram Kumar and others, setting aside the decree and order dated 19.11.83 passed, by the Assistant Collector 1st Class Banda decreeing the suit No. 25 of 1980. Second appeal No. 127 has been filed by Sheo Nath and Second Appeal No. 34 has been filed by Ram Kumar. 2. The facts of the case are that Sheo Nath and others filed a suit No. 25 of 1980 u/s 229-B of the U.P. Zamindari Abolition and Land Reforms Act, Rajju filed suit No. 36 of 1980 u/s 229-B of the Act against the State and others. The trial court consolidated both the suits with Suit No. 25 as leading case. The contention of the plaintiff Sheo Nath and Bhola in suit No. 25 are that they are Bhumidhar in possession and have been continuing in possession over the suit Plot No. 3071/3-8-0 since before the abolition of Zamindari. Their father Chunka used to cultivate the land. Upon his death, the plaintiffs stepped in his shoes. The defendants Ram Kumar and Rajju have no concern with the land in dispute. The defendant No. 1 Ram Kumar in collusion with the Lekhpal got his name fraudulently recorded in clause 9 without any order of the competent authority. 3. Rajju s/o Sukhwa filed another suit against the Gaon Sabha and others with the claim that Chunka s/o Munna had executed a Will in his favour in respect of the plot in dispute on 7.1.77. On the strength of the Will, he came in possession over the plot in dispute. The learned trial court framed 9 issues. He decided issue No. 1 and 2 holding that Sheo Nath and Bhola were bhumidhars in possession. It dismissed the case of Rajju holding that the alleged Will was not proved. Both the plaintiffs preferred appeals before the Divisional Commissioner. The learned Additional Commissioner allowed the appeal of Rajju on 29.8.84. Aggrieved by this order, the plaintiff Sheo Nath and defendant Ram Kumar preferred the above mentioned second appeals before this Court. 4. I have heard the learned counsel for the parties. Both the plaintiffs preferred appeals before the Divisional Commissioner. The learned Additional Commissioner allowed the appeal of Rajju on 29.8.84. Aggrieved by this order, the plaintiff Sheo Nath and defendant Ram Kumar preferred the above mentioned second appeals before this Court. 4. I have heard the learned counsel for the parties. Sri Hari Shanker, learned counsel for Sheo Nath has contended that in the presence of the only son Sheo Nath, his father Chunka cannot execute a Will in favour of an stranger. He has further contended that the respondent Ram Kumar and Rajju are real brothers. Ram Kumar and Chunka were under litigation. When the former found his defence week, he forged a Will in respect of the disputed land in favour of his brother Rajju. In these circumstances, the learned counsel contends, that the alleged Will is suspicious document and every suspicion will be removed about the Will to the satisfaction of the court. In support of his argument, he has placed reliance on AIR 1959 SC 443 and AIR 1977 SC 78. His last submission is that no right could accrue to Rajju on the basis of an unregistered Will. 5. Sri K.K. Misra, learned counsel for the respondent has contended that a will is not required to be registered u/s 18 of the Registration Act. Since the Will has been duly proved u/s 68 of the Evidence Act, the appellant has no case. He has further argued that the appellant has a good chunk of land and a very small portion of the land has been transferred through the Will. The next submission made by him is that the right of a bhumidhar with transferable rights to execute a Will is unrestricted and if it has been exercised it cannot be negatived u/s 169 of the Act by another person though he might have a preferential claim under the general order of succession u/s 171 of the Act. Reliance has been placed on 1982 RD 278. He has asserted that the ruling reported in AIR 1977 SC 78 is not applicable to the present case because the propounder has no role to play. The learned counsel for the appellant has contended that the suit is barred u/s 34 of the Specific Relief Act as no alternative plea of possession has been taken. Reliance has been placed on 1972 RD 251. 6. The learned counsel for the appellant has contended that the suit is barred u/s 34 of the Specific Relief Act as no alternative plea of possession has been taken. Reliance has been placed on 1972 RD 251. 6. I have carefully considered the arguments advanced before me and have also perused the record. The crucial question to be decided in this case is whether the plaintiff Sheo Nath has succeeded in proving his case and whether the Will has validly executed in favour of Rajju. The learned trial court has found the plaintiff Sheo Nath bhumidhar in possession on the basis of the khasra and khatauni entries of 1387-F wherein his father is recorded in the main column. The plaintiff's father is recorded in the jot-bahi in 1382-89-F also. In Z.A. Form 32 dated 5.7.62 Chunka s/o Munna paid 10 times rent and became bhumidhar. The learned trial court has thrown aside the case of the defendant Ram Kumar on the ground that there is no reliable evidence that he was of the family of Nusua and Sukurua recorded in the khasra of 1333-34-F and that no step for mutation was taken by the defendant after the death of Nusua and Sukurua. The learned trial court has further observed that the S.D.O. expunged the Class 9 entry made in favour of the defendant in case No. 6 u/s 33/39 on 10.5.79. The defendant filed khasras 1383, 1384, 1385 and 1386-F but he has failed to file the khasra of the year in which the Clause 9 entry was recorded. It was necessary to see whether PA-10 was issued. The learned trial court is also of the view that the alleged will executed in favour of Rajju is not proved because the notary Savitri Devi was not produced, and out of 2 marginal witnesses, only Ram Autar was produced. The learned trial court rejected the testimony of this witness on the ground that he had put his thumb impression on the file though he had put his signature on the Will. The learned trial court has also taken into consideration the circumstances which go against Rajju. It is of the view that Chunka could not execute any Will in favour of a person whose brother was under litigation with the propounder. 7. Normally, a Will has to be proved like any other document. The learned trial court has also taken into consideration the circumstances which go against Rajju. It is of the view that Chunka could not execute any Will in favour of a person whose brother was under litigation with the propounder. 7. Normally, a Will has to be proved like any other document. But since the person executing the Will is not in this world, the court has to be extra cautious. In the instant case, it does not stand to reason why would Chunka dis-inherit his only son in favour of a person whose brother was at dagger drawn with the former. It hardly matters if a small portion of the land has been transferred through the Will. Besides the circumstances going against Rajju, the learned trial court has given cogent reasons for not accepting the Will. The notary was not produced and the testimony of the marginal witness Ram Autar was not worthy of credence. I am therefore, fully satisfied that the execution of this Will is not free from suspicion. Where a Will is surrounded with suspicious circumstances, the safest course is to reject it. The learned Additional Commissioner has failed to weigh the circumstances under which the Will was executed. 8. In the result, the appeal preferred by Sheo Nath succeeds and consequently allowed. The appeal No. 34 preferred by Ram Kumar having no merits, is dismissed. The parties shall bear their own costs. 9. This order shall govern second appeal No. 127 and 34 of 1983-84/1984-85/Banda.