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2014 DIGILAW 1197 (ALL)

Hari Ram v. Jamuna

2014-04-15

RAM SURAT RAM (MAURYA)

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JUDGMENT : Ram Surat Ram , J. Heard Sri Rakesh Pandey and Sri Sunil Kumar, for the petitioner and Sri Ashish Kumar Srivastav, for the contesting respondents. 2. The writ petition was filed for quashing the order of Additional District Magistrate/ Deputy Director of Consolidation dated 27.12.2013, arising out of title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 3. The dispute relates to properties of khatas 130, 131 and 147 of village Lezar Mahadeva, tappa Lehra, tahsil Farenda district Mahrajganj. In basic consolidation records, the names of Yadunath son of Triveni, Kashi and Parmeshwar sons of Kundan, Parsuram son of Jamuna, Gyandas and Bhagwandas sons of Gannu were recorded over khata 130, the names of Yadunath son of Triveni, Kashi, Parmeshwar and Jamuna sons of Kundan were recorded over khatas 131 and 147. The dispute is in respect of the share of Yadunath. Hari Ram (the petitioner) filed an objection under Section 9 of the Act, claiming the share of Yadunath on the basis of his will. Jamuna son of Kundan and Ghanshyam son of Pareshwar (respondents-1 and 2) filed an objection on the ground that Yadunath did not execute any will and died as a member of joint Hindu family as such after his death his share was jointly inherited by three sons of Kundan namely Kashi, Parmeshwar and Jamuna, being his real nephews. Smt. Subhagi and Smt. Yashodhara (respondents-3 and 4) filed an objection claiming themselves to be married daughters and heirs of Yadunath. Now the dispute is between Hari Ram (the petitioner) and Smt. Subhagi and Smt. Yashodhara (respondents-3 and 4). All these objections were consolidated and tried by Consolidation Officer. Before the Consolidation Officer, the petitioner filed an undated and unregistered will and extract of Pariwar Register and examined Hari Ram and Jhakari (the attesting witness of the will) as his witnesses. Smt. Subhagi and Smt. Yashodhara (respondents-3 and 4) filed a certificate issued by Gram Panchayat Development Officer dated 14.09.2005 showing that they were daughters of Yadunath and examined Smt. Subhagi, Ram Subhag and Muggan witnesses. The Consolidation Officer, by his order dated 28.03.2009, found that due execution of the will was proved by attesting witness Jhakari. The extract of Pariwar Register filed by the petitioner shows that Yadunath had no daughters of the names of Subhagi and Yashodhara. The Consolidation Officer, by his order dated 28.03.2009, found that due execution of the will was proved by attesting witness Jhakari. The extract of Pariwar Register filed by the petitioner shows that Yadunath had no daughters of the names of Subhagi and Yashodhara. The alleged certificate dated 14.09.2005, issued by Gram Panchayat Development Officer is not admissible in evidence. As such Smt. Subhagi and Smt. Yashodhara (respondents-3 and 4) could not prove that they were daughters of Yadunath. On these findings, objections of Smt. Subhagi and Smt. Yashodhara (respondents-3 and 4), Jamuna and Ghanshyam (respondents-1 and 2) were dismissed and it was held that share of Yadunath was inherited by the petitioner on the basis of his will. Consolidation Officer made correction in his order on 01.04.2009. 4. Smt. Subhagi and Smt. Yashodhara (respondents-3 and 4) filed two appeals (registered as Appeal Nos. 795 and 950) and Jamuna and Ghanshyam (respondents-1 and 2) filed an appeal (registered as Appeal No. 949) from the aforesaid orders. The appeals were consolidated and heard by Settlement Officer Consolidation, who by order dated 28.04.2010, dismissed the appeals. Smt. Subhagi and Smt. Yashodhara (respondents-3 and 4) filed a revision (registered as Revision No. 33) from the aforesaid order. The revision was heard by Additional Collector (F & R)/Deputy Director of Consolidation, who by order dated 27.12.2013 held that in the will the address of the attesting witnesses are not mentioned. The will was signed and also thumb marked by Yadunath. Jhakari son of Lutawan, in his statement, has not proved execution and attestation of the will as required under the law. The will is highly suspicious document in as much as in spite of the testator was having two daughters and three nephews but he executed will in favour of son of one nephew only without assigning reasons for depriving them. The execution of the will was not only denied by daughters but by nephews also. Smt. Subhagi and Smt. Yashodhara (respondents-3 and 4) were daughters of Yadunath. In the extract of Pariwar Register produced by the petitioner, Mitali (deceased) and Masali were shown as the daughters of Yadunath but the petitioner failed to produce Masali before the Court nor disclosed her where about. In the alleged will produced by the petitioners, two married daughters of Yadunath were mentioned, which proves that Smt. Subhagi and Smt. Yashodhara (respondents-3 and 4) were married daughters of Yadunath. In the alleged will produced by the petitioners, two married daughters of Yadunath were mentioned, which proves that Smt. Subhagi and Smt. Yashodhara (respondents-3 and 4) were married daughters of Yadunath. As on the death of Yadunath, his brother Kundan was not alive as such Smt. Subhagi and Smt. Yashodhara (respondents-3 and 4) inherited his properties. On these findings the revision was allowed and orders of Consolidation Officer and Settlement Officer Consolidation were set aside and names of Smt. Subhagi and Smt. Yashodhara (respondents-3 and 4) were directed to be recorded as an heirs of Yadunath. Hence this writ petition has been filed. 5. The counsel for the petitioner submitted that the petitioner examined Jhakari son of Lutawan, the attesting witness of the will, who has proved due execution and attestation of the will. None of the opposite parties cross examined the witness. The Consolidation Officer and Settlement Officer Consolidation relying upon the statement of Jhakari held that due execution of the will was proved. Deputy Director of Consolidation has illegally set aside the concurrent finding of fact recorded by two courts below. The alleged certificate dated 14.09.2005, issued by Gram Panchayat Development Officer, produced by respondents-3 and 4 was not a certified copy of any Public Document but was a certificate on the basis of personal knowledge and was not admissible in evidence. The Consolidation Officer and Settlement Officer Consolidation have not committed any illegality in ignoring this document. Apart from it respondents-3 and 4 could not adduce any evidence to prove that they were daughters of Yadunath. On the other hand the extract Pariwar Register produced by the petitioner fully proved that there was no daughter of the names of Subhagi and Yashodhara to Yadunath. This certificate was not rebutted by any other evidence. In case its genuineness was doubted then Deputy Director of Consolidation could have summoned the original Pariwar Register in order to verify its genuineness. But he has illegally remarked that this certificate was written in different hand writing. Smt. Subhagi and Smt. Yashodhara (respondents-3 and 4) could not prove that they were daughters of Yadunath. The order of Deputy Director of Consolidation is illegal and is liable to be set aside. 6. I have considered the arguments of the counsel for the petitioner and examined the record. Indian Succession Act, 1925 came into force on 30.09.1925. Smt. Subhagi and Smt. Yashodhara (respondents-3 and 4) could not prove that they were daughters of Yadunath. The order of Deputy Director of Consolidation is illegal and is liable to be set aside. 6. I have considered the arguments of the counsel for the petitioner and examined the record. Indian Succession Act, 1925 came into force on 30.09.1925. Section 63 provides the mode of execution of 'unprivileged will'. By Amendment Act No. 27 of 1926, definition of word "attested" has been inserted in Transfer of Property Act, 1882. Due execution of the will is required to be proved according to the provisions of Section 68 of the Evidence Act, 1872. Relevant provisions are quoted below:- Section 63. Execution of unprivileged wills.- Every testator, not being a solder employed in an expedition or engaged in actual warfare or an airman so employed or engaged or a mariner at sea, shall execute his will according to the following rules,- (a) The testator shall sign or shall affix his marks to the will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. (c) The will shall be attested to two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. Section 3. Section 3. Interpretation clause.- "attested" in relation to an instrument means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affixed his mark to the instrument, or has seen some other person sign the instrument, in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the shall sign the instrument in the presence of the executant, but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary. Section 68. Proof of execution of document required by law to be attested.- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence. 7. Section 61 of the Evidence Act, 1872 provides that the contents of a document may be proved either by primary or by secondary evidence. Primary evidence is the document itself. Section 67 requires to prove signature and handwriting of the persons by whom documents is alleged to be signed. Section 68 provides for proving execution of a document, required by law to be attested by at least one attesting witness, in order to make it admissible. Supreme Court in Girja Datt Singh v. Gangotri Datt Singh, AIR 1955 SC 346 , held that in order to prove the due attestation of the will Ex. A.36 Gangotri would have to prove that Uma Dutt Singh and Badri Singh saw the deceased sign the will and they themselves signed the same in the presence of the deceased. 8. Supreme Court again in Janki Narayan Bhoir v. Narayan Namdeo Kadam, AIR 2003 SC 761 : 2003 (50) ALR 455 (SC) : 2003 (94) RD 294 : 2003 (3) AIC 139. held that Section 68 of the Evidence Act speaks of as to how a document required by law to be attested can be proved. 8. Supreme Court again in Janki Narayan Bhoir v. Narayan Namdeo Kadam, AIR 2003 SC 761 : 2003 (50) ALR 455 (SC) : 2003 (94) RD 294 : 2003 (3) AIC 139. held that Section 68 of the Evidence Act speaks of as to how a document required by law to be attested can be proved. According to the said section, a document required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence. It flows from this section that if there be an attesting witness alive capable of giving evidence and subject to the process of the court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the will has got to prove that the will was duly and validly executed. That cannot be done by simply proving that the signature on the will was that of the testator but must also prove that attestations were also made properly as required by clause (c) of Section 63 of the Succession Act. What is significant and to be noted is that one attesting witness examined should be in a position to prove the execution of a will. To put in other words, if one attesting witness can prove execution of the will in terms of clause (c) of Section 63 viz. attestation by two attesting witnesses in the manner contemplated therein, the examination of the other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the will. attestation by two attesting witnesses in the manner contemplated therein, the examination of the other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the will by the other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act. 9. Supreme Court again in Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh, (2009) 4 SCC 780 : 2009 (75) ALR 170 (SC) : 2009 (107) RD 48 : 2009 (76) AIC 25. held that having regard to the provisions of Section 68 of the Evidence Act and Section 63 of the Succession Act, a will to be valid should be attested by two or more witnesses in the manner provided therein and the propounder thereof should examine one attesting witness to prove the will. The attesting witness should speak not only about the testator's signature or affixing his mark to the will but also that each of the witnesses had signed the will in the presence of the testator. 10. In this case, Jhakari, in his statement has stated that Yudunath during his lifetime executed a will in favour of Hari Ram. After looking to the original will (Exhibit Ka-1) he had stated that his thumb impression on the deed was of the time of execution of the deed. Thus he has not stated that the will was thumb marked by Yadunath and the other witness Santu in his presence or he had seen them while putting their thumb marks on the will. Thus neither execution nor attestation as required under the law was proved. Thus he has not stated that the will was thumb marked by Yadunath and the other witness Santu in his presence or he had seen them while putting their thumb marks on the will. Thus neither execution nor attestation as required under the law was proved. In view of the mandatory provisions of Section 68 of the Evidence Act, 1872, the will produced by the petitioner could not be read in evidence. 11. Apart from it there are suspicious circumstances and the petitioner failed to remove the suspicious circumstances. The will is undated. Addresses of the witnesses have not been mentioned in it. Even in the evidence, the petitioner could not give time of execution of the will. The will contains incorrect recitals in as much as it has mentioned two married daughters of Yadunath but according to the documents produced by the petitioner one daughter was deceased and other was unmarried. It had not disclosed three nephews, who were jointly residing with Yadunath. 12. So far as the argument that Smt. Subhagi and Smt. Yashodhara (respondents-3 and 4) could not prove that they were daughters of Yadunath, is concerned Smt. Subhagi entered into witness box and stated that she and yashodhara were married daughters of Yadunath. Her statement was admissible under Section 50 of the Evidence Act, 1872. Even if her documentary evidence was not admissible but her oral evidence was there and the findings of fact in this respect cannot be set aside, in exercise of writ jurisdiction as the findings are fully supported by oral evidence, which itself is sufficient to prove relation with the deceased. A perusal of the objection filed by the petitioner before Consolidation Officer (Annexure-4) to the writ petition shows that the petitioner has no where denied that Smt. Subhagi and Smt. Yashodhara were not the daughters of Yadunath. In such circumstances no interference can be made by this Court in exercise of writ jurisdiction. 13. In view of the aforesaid discussion, the writ petition has no merit and is dismissed. Petition Dismissed.