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2014 DIGILAW 3801 (ALL)

Gayapal Singh v. D. D. C.

2014-12-19

ANJANI KUMAR MISHRA

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JUDGMENT Anjani Kumar Mishra, J. 1. Heard Shri C.K. Rai, learned Counsel for the petitioner in the writ petition as also for the appellant in the connected second appeal. I also heard Shri Hemant Kumar holding brief of Shri Pramod Kumar Singh for the respondents in both the cases. It appears that two sets of objections under section 12 of the U.P. Consolidation of Holdings Act were filed. One objection was filed by the petitioner, Gaya Pal claiming on the basis of an unregistered will said to have been executed in his favour by one Munni Devi on 18.11.1986. The other objection was filed by Smt. Geeta Devi claiming on the basis of a registered Will said to have been executed by Munni Devi in her favour on 17.5.1985. 2. The dispute between the parties in the writ petition pertains to plot Nos. 52, 63 and 74 situated in village Rasoolpur, Pargana Ayah Shah, District Fatehpur which were recorded in the name of Munni Devi widow of Vansh Gopal who is said to have died on 2.12.1986. 3. The Consolidation Officer by his order dated 16.6.1988 accepted the Will in favour of the Geeta Devi. The appeal Nos. 1934/1363/1564 filed by the petitioner was dismissed on 16.11.2000 which order was affirmed by the dismissal of revision No. 2681 by the Deputy Director of Consolidation on 9.9.2005 and hence this writ petition challenging the orders of the three consolidation authorities. 4. The second appeal filed by Gaya Pal arises out of original Suit No. 167 of 1987 filed by Geeta Devi. This suit was filed for a declaration that the Will dated 18.11.1986 was nullity and did not effect the rights of the plaintiff-Geet Devi as regards a residential house and sahan. In this suit also, the parties claimed on the basis of the respective Wills in their favour namely, the registered Will dated 17.5.1985 in favour of Geeta Devi and the unregistered Will dated 18.11.1996 in favour of Gaya Pal-defendant. 5. The Trial Court by the judgment and decree dated 17.11.1994 decreed the suit. The consequential appeal No. 109 of 1994 was dismissed by the judgment and decree dated 16.4.2008 against which the instant second appeal has been filed. 6. This second appeal has not been admitted although the record had been summoned and an order was passed that the appeal would be decided finally at the admission stage itself. The consequential appeal No. 109 of 1994 was dismissed by the judgment and decree dated 16.4.2008 against which the instant second appeal has been filed. 6. This second appeal has not been admitted although the record had been summoned and an order was passed that the appeal would be decided finally at the admission stage itself. 7. It is, therefore, clear that in both the cases namely, the writ petition and the second appeal, the parties claim on the basis of the same respective Wills in their favour alleged to have been executed by Munni Devi who was admittedly the owner of the agricultural land as also the house and sahan. 8. In both the cases, the registered Will executed in favour of Geeta Devi has been accepted while the unregistered will set up by Gaya Pal has been discarded. 9. Since the second appeal has not been admitted and the scope of a second appeal is limited, I think it fit and proper to deal with the second appeal first. It would also be relevant to note that both the cases, were nominated to me by the order of Hon'ble the Chief Justice dated 16.4.2014. 10. Learned Counsel for the appellants has primarily pressed the substantial question of law Nos. 1 and 3 formulated by him in the memo of appeal which are extracted below "1. Whether the Courts below were justified in holding that the registration of a will is full proof of its due execution and ipso facto repelled the suspicion regarding genuineness of the will dated 17.5.1985 in question? 3. Whether the Courts below were justified in placing reliance of the judgments of consolidation Courts who have no jurisdiction to decide the question of validity of a Will?" 11. As regards the first substantial question of law, it is the settled legal position that a registered will is presumed to have been duly executed and presumption is only as regards the execution of the Will. However, this presumption is rebuttable and there is no presumption as regards the contents of the will which must necessarily be proved. 12. It is clear from the submissions made and the substantial question of law framed by the learned Counsel for the appellant that it is not his case that the contents of the Will were not proved. 13. However, this presumption is rebuttable and there is no presumption as regards the contents of the will which must necessarily be proved. 12. It is clear from the submissions made and the substantial question of law framed by the learned Counsel for the appellant that it is not his case that the contents of the Will were not proved. 13. Careful perusal of the judgments of the two Courts below reveals that the Will was found proved in accordance with the provisions of section 68 of the Evidence Act as the marginal witness thereto, was produced and examined. On an appreciation of the entire evidence in this regard, the Courts below found the Will dated 17.5.1985 to be proved. 14. The Courts below specially, the Lower Appellate Court has also considered the various circumstances on the basis of which it was sought to be argued that the Will in favour of Geeta Devi was shrouded in suspicious circumstances. All the aspects urged were duly considered and repelled for cogent reasons. 15. A finding has been returned on the basis of the report of the expert that the thumb impression on the registered Will was identical to the thumb impression on the registered sale deed executed by Munni Devi in favour of the plaintiff's husband while the thumb impression on the will set up by the defendant-appellant was found to be different. 16. It has also been observed that the expert, Ravindra Kumar Tripathi, PW-5 was cross-examined but nothing of consequence emerged there from which would render his report doubtful or not worthy of credence. Various other circumstances have also been noted on the basis of which the Will in favour of Geeta Devi was found to be genuine. The first such circumstance is that the Will was required to be executed as it pertained also to non agricultural plots and the plaintiff-Geeta Devi would not have succeeded to this property, but for the will. It has also come on record that Geeta Devi is the daughter of Munni Devi's brother. Munni Devi and her husband Vansh Gopal treated Geeta Devi as their own daughter and they had got her married. The Court has also observed that it, in fact, there was no necessity to execute any will in favour of the defendant-appellant, Gaya Pal as he would be the testator's heir, in the normal line of succession. Munni Devi and her husband Vansh Gopal treated Geeta Devi as their own daughter and they had got her married. The Court has also observed that it, in fact, there was no necessity to execute any will in favour of the defendant-appellant, Gaya Pal as he would be the testator's heir, in the normal line of succession. It has further come on record that at the time of her death Munni Devi was residing with Geeta Devi. It is, therefore, clear that the will in favour of the plaintiff Geeta Devi has not been accepted only because it is a registered Will. The contention of the learned Counsel for the appellant, therefore, cannot be accepted. 17. As regards the second substantial question of law pressed by the learned Counsel for the appellant, it would be relevant to note that the judgments of the Consolidation Courts have also been referred to, for holding against the appellant but this is not the sole ground for accepting the registered Will in favour of Geeta Devi and for discarding the alleged will in favour Gaya Pal and, therefore, in my considered opinion the second substantial question of law urged also lacks substance. 18. Moreover, since the Will in favour of the Geeta Devi has been accepted as it stood proved in accordance with section 68 of the Evidence Act and the various circumstances which are alleged to have rendered its suspicious have been duly considered and the case of defendant-appellant discarded, I find no merit in the submissions made by the learned Counsel for the appellant. It is not the case of the Counsel for the appellant that the judgments of the two Courts below suffer from perversity. 19. I, therefore, hold that no substantial question of law arises in the second appeal which is, therefore, liable to be dismissed. 20. As already noted herein above, the parties claimed before the Civil and Consolidation Courts on the basis of the same wills which pertained both to the agricultural and non agricultural property of Munni Devi. Since the Will in favour of the Geeta Devi stands affirmed as the second appeal raises no substantial question of law, the Will in her favour as regards the agricultural property must also necessary be accepted and, therefore, the writ petition is liable to be dismissed. Since the Will in favour of the Geeta Devi stands affirmed as the second appeal raises no substantial question of law, the Will in her favour as regards the agricultural property must also necessary be accepted and, therefore, the writ petition is liable to be dismissed. Accordingly and for the reasons given above, both, the Writ Petition No. 68800 of 2005 and the Second Appeal No. 622 of 2008 are dismissed.