JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri R.D. Shahi and Sri Mohan Singh, for the petitioners and Sri P.K. Jaiswal, for the contesting respondents. 2. The writ petition has been filed against the orders of Settlement Officer Consolidation dated 12.02.2015, 21.05.2015 and Deputy Director of Consolidation dated 17.08.2015, passed in title proceeding, under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the 'Act'). 3. The dispute between the parties relates to land recorded in basic consolidation year khatas-139 and 424 of village Newaria, khata-104 of village Fatuhapur and khata-86 of village Khaira Kalan, pargana Ekauna, district Bahraich (at present Shrawasti), which were recorded in the name of Jagdish Prasad son of Gaya Prasad. Buddhi Sagar and Prem Sagar (the petitioners) filed objections (registered as Case No. 22, of village Fatuhapur, Case No. 141, of village Newaria and Case No. 248 of village Khaira Kalan) under Section 9A of the Act, for recording their names over aforementioned khatas, on the basis of registered will dated 25.07.1989, allegedly executed by Jagdish Prasad in their favour. Kripa Ram (now represented by respondents-3 to 7) (hereinafter referred to as the 'respondents') filed counter objections and contested the cases, denying execution of will dated 25.07.1989 by Jagdish Prasad and stated that after death of Jagdish Prasad, his three sons (including him) jointly inherited the land in dispute. He also filed an application before Consolidation Officer for framing an issue in respect of will. Initially Consolidation Officer rejected that application by order dated 27.05.2011. However, the order was set aside by Deputy Director of Consolidation and matter was remanded to Consolidation Officer to frame an issue in respect of will and try it also. 4. After remand, record of Case No. 248 was misplaced. Consolidation Officer consolidated Case Nos. 22 and 141. The petitioners filed original will dated 25.07.1989, applications dated 03.12.2010, 12.12.2010, extracts of khatauni of village Newaria, order of Tahsildar, receipt relating to payment of irrigation dues and land revenue and examined Sant Bux Singh, Prem Sagar and Aditya Prasad Trivedi. Kripa Ram filed copy of sale deed and land revenue receipts and examined himself as witness. 22 and 141. The petitioners filed original will dated 25.07.1989, applications dated 03.12.2010, 12.12.2010, extracts of khatauni of village Newaria, order of Tahsildar, receipt relating to payment of irrigation dues and land revenue and examined Sant Bux Singh, Prem Sagar and Aditya Prasad Trivedi. Kripa Ram filed copy of sale deed and land revenue receipts and examined himself as witness. Consolidation Officer, by his order dated 27.05.2011 held that both the attesting witnesses have died before start of evidence in the case as such due execution of the will was proved according to provisions of Section 69 of Evidence Act, 1872, from statements of Sant Bux Singh (scribe of the will) and Aditya Prasad Trivedi, who had attested photograph of Jagdish Prasad on the will and identified him before Sub-Registrar, at the time when will was presented for registration. From statement of Kripa Ram also it was proved that he was present at tahsil at the time of execution of will and had knowledge of it. Kripa Ram did not participate in last rites of his father, which shows that he did not have good relation with him. Jagdish Prasad had purchased land to Kripa Ram and by executing will in favour of his remaining two sons, he had made equal distribution of his land amongst his sons. On these findings, he allowed the objections of the petitioners and directed for recording their names over khatas 86 of village Khaira Kalan and 248 of village Fatuhapur. Consolidation Officer, subsequently by ex-parte order dated 27.09.2013, allowed Case No. 141 also, on the ground will dated 25.07.1989 has been accepted by him for properties of two villages and directed for recording the names of the petitioners over land of khatas 139 and 424 of village Newaria. 5. Kripa Ram filed an appeal (registered as Appeal No. 408) from the order dated 27.05.2011. It is alleged that Kripa Ram filed an application dated 25.07.2011 for dismissing the appeal as not pressed. The appeal was thereafter dismissed on 28.07.2011. Kripa Ram died on 31.12.2012. The respondents filed an application dated 13.03.2014 for recall of the order dated 28.07.2011, which was allowed by order dated 12.02.2015. The respondents also filed an appeal (registered as Appeal No. 376/210) from order dated 27.09.2013. The appeal was thereafter dismissed on 28.07.2011. Kripa Ram died on 31.12.2012. The respondents filed an application dated 13.03.2014 for recall of the order dated 28.07.2011, which was allowed by order dated 12.02.2015. The respondents also filed an appeal (registered as Appeal No. 376/210) from order dated 27.09.2013. Both the appeals were consolidated and heard by Settlement Officer Consolidation, who by order dated 21.05.2015, held that Jagdish Prasad had transferred 14.40 acre land to the children of the petitioners in village Newaria through sale deed dated 29.09.1967 as such findings of Consolidation Officer that for equal distribution of land between the sons, Jagdish Prasad had executed will dated 25.07.1989, is not correct. There were material contradictions, in the statement of witnesses in respect of execution of the will dated 25.07.1989. On 25.07.1989, Jagdish Prasad was seriously ill, as such due execution of the will in sound and conscious mind was not proved. After death of Jagdish Prasad, land in dispute was jointly inherited by his three sons. On these findings, he allowed the appeals, set aside the orders of Consolidation Officer dated 27.05.2011 and 27.09.2013 and directed for recording the names of all the three sons as heirs of Jagdish Prasad. 6. The petitioners filed four revisions (registered as Revision Nos. 376, 377, 378 and 379) from orders dated 12.02.2015 and 21.05.2015 passed in Appeal No. 408 and 21.05.2015 passed in Appeal No. 376/210. The revisions were consolidated and heard by Deputy Director of Consolidation, who by his order dated 17.08.2015, held that recital of the will that Jagdish Prasad had given property to his son Kripa Ram but no evidence has been adduce to prove that property was purchased for Kripa Ram. On the other hand, it is proved that 14.40 acre land was transferred to the petitioners through sale deed dated 26.09.1967. There is no recital in the will that Jagdish Prasad was dissatisfied with Kripa Ram and there was no reason to Jagdish Prasad to deprive Kripa Ram from his properties. There are material contradictions in statement of witnesses in respect of execution of the will and its due execution was not proved beyond doubt. Settlement Officer Consolidation has not committed any illegality in allowing the appeal. On these findings he dismissed the revisions. Hence this writ petition has been filed. 7. There are material contradictions in statement of witnesses in respect of execution of the will and its due execution was not proved beyond doubt. Settlement Officer Consolidation has not committed any illegality in allowing the appeal. On these findings he dismissed the revisions. Hence this writ petition has been filed. 7. The counsel for the petitioners submitted that Kripa Ram, himself moved an application for dismissing his appeal as not pressed, on which the appeal was dismissed on 28.07.2011. Kripa Ram did not file any application for recall of the aforesaid order during his life time although Kripa Ram survived up to 31.12.2012. After his death his heirs malafide moved an application dated 13.03.2014 for recall of the order dated 28.07.2011, which was not maintainable and highly time barred. Allegations that the respondents had gone out side the village for earning livelihood was false. Some of the respondents used to attend the cases before consolidation authorities during life time of Kripa Ram and had knowledge about it. Settlement Officer Consolidation has illegally allowed the recall application. Respondents-1 and 2 has found that Jagdish Prasad had purchased 2.73 acre land for Kripa Ram while he had purchased 14.40 acre land for the petitioners as such it is incorrect to say that for equal distribution of land amongst sons, will was executed but at the same time they had illegally ignored the fact that after purchase of land, Kripa Ram separated him from his father and did not take care of his father subsequently. Observations of respondents-1 and 2 that there were material contradictions, in respect of execution of will was false and vague in as such as the respondents had not referred/noted alleged contradictions in statement of the witnesses. Statements of attesting witnesses were recorded in mutation case before Tahsildar. The petitioners filed certified copies of the statements of attesting witnesses, who had died when evidence was started before Consolidation Officer as such it were admissible in evidence. Otherwise also the petitioners examined Sant Bux Singh, scribe of the will and Aditya Prasasd Trivedi, Advocate, who had attested photograph of Jagdish Prasad, affixed on the will, according to the provisions of Section 69 of Evidence Act, 1872. The will dated 25.07.1989 was registered document on which duly attested photograph of Jagdish Prasad was affixed. Due execution of the will was proved beyond all reasonable doubts. The will dated 25.07.1989 was registered document on which duly attested photograph of Jagdish Prasad was affixed. Due execution of the will was proved beyond all reasonable doubts. The will was executed in favour of two sons excluding one son as he was living separately during life time of father and did not serve him as such this was a natural circumstance to exclude him from inheritance. Respondents-1 and 2, being fact finding authorities, are required to consider entire evidence on record and also reasons assigned by Consolidation Officer before reversing his judgments. The orders of respondents-1 and 2 are illegal and liable to be set aside. 8. I have considered the arguments of the counsel for the parties and examined the record. Mode of execution of the will has been prescribed under Section 63 of Indian Succession Act, 1925, which is quoted below "63. Execution of unprivileged wills.--Every testator, not being a soldier 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. The will shall be attested by 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 witnesses 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. 9. Execution of the will is required to be proved, at least by one attesting witness under Section 68 of the Evidence Act, 1872. 9. Execution of the will is required to be proved, at least by one attesting witness under Section 68 of the Evidence Act, 1872. In case, attesting witnesses were not alive then according to provisions of Section 69 of Evidence Act, 1872, which are quoted below "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: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied. 69. Proof where no attesting witness found.--If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person." 10. The word "attestation" has been defined under Section 3 of Transfer of Property Act, 1882 as follows "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 affix 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 whom has signed 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;" 11. A Bench of three Hon'ble Judges of Supreme Court in Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh, (2009) 4 SCC 780 , after reviewing earlier judgments held that as per provisions of Section 63 of the Succession Act, 1925 for the due execution of a will: "(1) the testator should sign or affix his mark to the will; (2) the signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a will; (3) the will should be attested by two or more witnesses, and (4) each of the said witnesses must have seen the testator signing or affixing his mark to the will and each of them should sign the will in the presence of the testator." The attestation of the will in the manner stated above is not an empty formality. It means signing a document for the purpose of testifying of the signatures of the executant. The attesting witness should put his signature on the will animo attestandi. It is not necessary that more than one witness be present at the same time and no particular form of attestation is necessary. Since a will is required by law to be attested, its execution has to be proved in the manner laid down in the Section 68 of the Evidence Act which requires that at least one attesting witness has to be examined for the purpose of proving the execution of such a document. 12. Apart from proving due execution of the will, if a will is surrounded by suspicious circumstances, the propounder is required to remove suspicious circumstances. Supreme Court in H. Venkatachala v. B.N. Thimbajamma, AIR 1959 SC 443 held that there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. There may, however, be cases in which the execution of the will may be surrounded by suspicions circumstances. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. 13. Supreme Court in H. Venkatachala v. B.N. Thimbajamma, AIR 1959 SC 443 , Rani Purnima Debi v. Kumar Khagendra Narain Deb, AIR 1962 SC 567 , Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529 (Constitution Bench), Ram Pyari v. Bhagwant, AIR 1990 SC 1742 , Bhagwan Kaur v. Kartar Kaur, (1994) 5 SCC 135 , SR Sriniwas v. Padmavathamma, (2010) 5 SCC 274 , Balathandayuthan v. Ezhilarasan (2010) 5 SCC 770 , M.B. Ramesh v. K.M. Veeraji Urs, (2013) 7 SCC 490 and Jagdish Chandra Sharma v. Narain Singh Saini, (2015) 8 SCC 615 held that suspicious circumstances are genuineness of signature of testator on the will, condition of testator's mind at the time of will, propunder took prominent part in execution of will, will being unnatural, improbable and unfair and might cut of wholly or in part near relations. However, Supreme Court in Rabindra Nath Mukherjee v. Panchanan Banerjee, (1995) 4 SCC 459 and Uma Devi Nambiar v. T.C. Sidhan, AIR 2004 SC 1772 , took a contrary view that will is always executed to alter normal mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heir. If a natural heir has been given lessor share or excluded from succession, then by itself without any thing more cannot be held to be a suspicious circumstance. 14. The endorsement made by Sub-Registrar, to the effect that the endorsement was made in his presence and in the presence of the witnesses and that the witnesses signed the said endorsement in the presence of Bachan Singh does not satisfy the requirements of Section 63 of the Indian Succession Act, 1925 and does not reach up to the level of proof as required under Section 68 of the Indian Evidence Act, 1872. Therefore, the mere registration of will is of no consequence. In Sridevi v. Jayaraja Shetty, AIR 2005 SC 780 in which death of testator occurred within 15 days of execution of the will and in Niranjan Umesh Chandra Joshi v. Mrudula Jyoti Rao, AIR 2007 SC 614 , in which death occurred within a week, it was held that it was a suspicions circumstance. In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, (2006) 13 SCC 433 , held that there are several circumstances which would have been held to be described by this Court as suspicious circumstances: "(i) when a doubt is created in regard to the condition of mind of the testator despite his signature on the will; (ii) when the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances; (iii) where propounder himself takes prominent part in the execution of will which confers on him substantial benefit." 15. In the present case, Kripa Ram, one of the son of Jagdish Prasad was deprived from inheritance. Jagdish Prasad was suffering from cancer at the time of execution of will and died shortly thereafter but nothing has been disclosed about it in will. The propounders took active part in execution of the will and witness Durga Prasad was his close relation. Jagdish Prasad was suffering from cancer at the time of execution of will and died shortly thereafter but nothing has been disclosed about it in will. The propounders took active part in execution of the will and witness Durga Prasad was his close relation. Reasons for depriving Kripa Ram has been given in the will that for maintenance of Kripa Ram, he was given properties and separated from family and he was living separately from testator and was happy. Other sons Buddhi Sagar and Prem Sagar were living with him and were serving him in all the way. It has been not disclosed that Jagdish Prasad had transferred 14.40 acre land to the children of the petitioners through sale deed dated 26.09.1967 (copy of the sale deed was filed) and only 2.73 acre was transferred to Kripa Ram. Further about 40 bighas land was given to the petitioners through this will. There was no separation in the family and all of them were residing jointly. These facts are not explained. Jagdish Prasad had considerable landed property and was not depended financially upon his sons. The petitioners could not prove separation in the family as land of Newaria, where parental house of Jagdish Prasad was situated was transferred to Kripa Ram. If for purposes of avoiding ceiling laws, some land was transferred to one son then it does not mean that son was living separately and had no concern with father. A positive evidence in this respect has to be adduced by the petitioners and it has to be proved beyond reasonable doubts. In the will, it has not been mentioned that Kripa Ram was not taking any care of Jagdish Prasad. 16. It has been admitted to Durga Prasad, witness of the petitioners before Tahsildar, who is also a close relation that Jagdish Prasad died after one and half months of execution of will deed. Kripa Ram stated that Jagdish Prasad was suffering from cancer in intestine and was operated at the time of execution of will. He was unable to move. The will was signed by some imposter, in collusion of witnesses. Reason of death has been concealed by the petitioners. The petitioners were required to give evidence that at the time of execution of will Jagdish Prasad was in fit state of mind and health. Active participation of the propounders in execution of will is also proved. 17. The will was signed by some imposter, in collusion of witnesses. Reason of death has been concealed by the petitioners. The petitioners were required to give evidence that at the time of execution of will Jagdish Prasad was in fit state of mind and health. Active participation of the propounders in execution of will is also proved. 17. Respondents-1 and 2 found that there were material contradictions in the statement of the witnesses relating execution of the will. Although, the petitioner has filed statements of witnesses recorded before Tahsildar but has not filed statement of witnesses recorded before Consolidation Officer. As such it is not possible for this Court to hold that findings in this respect is perverse. 18. So far as the order dated 12.02.2015 is concerned, The respondents stated that after filing of appeal, Kripa Ram fell ill and the respondents had gone out side the village for earning livelihood. By committing fraud the appeal was got dismissed as withdrawn. Settlement Officer Consolidation accepted the allegation and allowed the recall application. The petitioners thereafter argued the appeal on merit. This Court is not inclined to interfere with that order. 19. In view of the aforesaid discussions, there is no illegality in the judgments of respondents-1 and 2. The writ petition has no merit and is dismissed.