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2015 DIGILAW 697 (ALL)

Baldev v. Dy. Director of Consolidation

2015-04-03

RAM SURAT RAM (MAURYA)

body2015
JUDGMENT Ram Surat Ram (Maurya), J. 1. Heard Sri Shailesh Kumar Tripathi, for the petitioners. The writ petition has been filed against the orders of Consolidation Officer dated 4.4.2012, Settlement Officer Consolidation dated 6.9.2012 and Deputy Director of Consolidation dated 31.1.2015 passed in title proceeding under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). 2. The dispute relates to inheritance of Munesar son of Lakshiman of the land recorded in basic consolidation year khatas 48, 161 and 189 of village Chechraf Buzurg, pargana Bansi Paschim, district Siddharth Nagar, in which Munesar was one of the co-sharer along with others. During consolidation, Smt. Rampati (now represented by Chandi (respondent-4) filed three separate objections, in respect of aforesaid khatas, for recording her name, on the basis of registered Will dated 27.10.1984, allegedly executed by Munesar in her favour, who claims herself to be (sic) married daughter of Muneshar. Sarjoo (father of the petitioners) contested the case on the ground that Munesar was unmarried and died issueless on 5.7.1984. He, being real brother of Munesar, was his heir under section 171 of U.P. Act No. 1 of 1951. Supervisor Kanoongo by order dated 29.8.1984, directed for recording his name as an heir of Munesar, on the basis of report under PA-11-A. Munesar had already died on 5.7.1984, alleged Will dated 26.10.1984 was a document, fabricated by some imposter. Smt. Rampati filed original Will dated 27.10.1984 and examined Smt. Rampati as PW-1, Dhanpat (PW-2), attesting witness and Bhagwat Prasad (PW-3), scribe of the Will. The petitioners examined Makkhan (DW-1), Wazid Ali (DW-2) and Sarif Ahmad (DW-3). The Consolidation Officer, after hearing the parties held that it was admitted that Smt. Rampati was daughter of Munesar. Due execution of registered Will dated 27.10.1984 was proved by Dhanpat (PW-2), attesting witness and Bhagwat Prasad (PW-3), scribe of the will. The village was placed under consolidation operation by notification dated 12.11.1983, as such order of Supervisor Kanoongo, dated 29.8.1984, recording the name of Sarjoo as an heir of Munesar, was without jurisdiction. The petitioner could not adduce any evidence to prove that Munesar died on 5.7.1984. On these findings, objections of Smt. Rampati were allowed and her name was directed to be recorded over khatas in dispute as an legatee of Munesar. 3. The petitioners filed an appeal (registered as Appeal No. 781) from the aforesaid order. The petitioner could not adduce any evidence to prove that Munesar died on 5.7.1984. On these findings, objections of Smt. Rampati were allowed and her name was directed to be recorded over khatas in dispute as an legatee of Munesar. 3. The petitioners filed an appeal (registered as Appeal No. 781) from the aforesaid order. The appeal was heard by Settlement Officer Consolidation, who by order dated 6.9.2012, again held that it was admitted that Smt. Rampati was daughter of Munesar. Due execution of registered Will dated 27.10.1984 was proved by Dhanpat (PW-2), attesting witness. Execution of the Will in favour of married daughter is not suspicious. The petitioner could not adduce any evidence to prove that Munesar died on 5.7.1984. The village was placed under consolidation operation by notification dated 12.11.1983 as such order of Supervisor Kanoongo, dated 29.8.1984, recording the name of Sarjoo as an heir of Munesar, was without jurisdiction. On these findings, the appeal was dismissed. The petitioners filed a revision (registered as Revision No. 670) from the aforesaid order. Deputy Director of Consolidation, by order dated 31.1.2015 affirmed the aforesaid findings and dismissed the revision. Hence this writ petition has been filed. 4. The Counsel for the petitioners submits that the petitioners have denied that Smt. Rampati was daughter of Munesar, from very beginning. It was case of the petitioners that Munesar was bachelor and died issueless, which was proved from Pariwar Register. At the time of death of Munesar on 5.7.1984, Sarjoo, his real brother was alive as such he has inherited his share in the land in dispute under section 171 of U.P. Act No. 1 of 1951. Supervisor Kanoongo, by order dated 29.8.1984, recorded the name of Sarjoo as an heir of Munesar. Notification of the village under section 4 (2) took place on 13.11.1984. The consolidation authorities have illegally relied upon notification under section 4 (1) of the Act and held that order of Supervisor Kanoongo, dated 29.8.1984 was without jurisdiction. The witnesses examined by the petitioners proved that the petitioners were in possession over the land in dispute. Will dated 27.10.1984 was a manufactured Will and has been fabricated after death of Munesar. Dhanpat, in his statement at one place, has stated that Munesar signed the Will and at the other place has stated that he had put his thumb impression. Will dated 27.10.1984 was a manufactured Will and has been fabricated after death of Munesar. Dhanpat, in his statement at one place, has stated that Munesar signed the Will and at the other place has stated that he had put his thumb impression. Smt. Rampati, in her statement admitted that Will was executed after death of Munesar. Statement of Rampati has been illegally ignored by the consolidation authorities. The Will was surrounded with suspicious circumstances namely (i) stamp was purchased on 26.10.1984, while Will was registered on 27.10.1984. (ii) Three persons have attested the will, (iii) Dhanpat has stated that Munesar signed the Will although it bears thumb impressions, (iv) Scribe has shown his ignorance in respect of registration and (v) Smt. Rampati, in her statement admitted that Will was executed after death of Munesar. These suspicious circumstances have not been removed. He relied upon the judgment of Supreme Court in Bharpur Singh v. Shamsher Singh2009 (107) RD 620 (SC), in which it has been held that a Will must be proved in terms of the provisions of section 63(c) of the Succession Act, 1925 and section 68 of the Evidence Act, 1872. In the event the provisions thereof cannot be complied with, the other provisions contained therein, namely, sections 69 and 70 of the Evidence Act providing for exceptions in relation thereto would be attracted. Compliance with statutory requirements for proving an ordinary document is not sufficient, as section 68 of the Evidence Act postulates that execution must be proved by at least one of the attesting witnesses, if an attesting witness is alive and subject to the process of the Court and capable of giving evidence. 5. I have considered the arguments of the Counsel for the petitioner and examined the record. Consolidation Officer and Settlement Officer Consolidation, in their orders found that the petitioners had admitted before them that Smt. Rampati was daughter of Munesar. A memorandum of appeal, filed by the petitioners (Annexure-6) shows that Smt. Rampati was shown as married daughter of Munesar. The petitioners raised ground that as Sarjoo, brother of Munesar was alive at the time of his death, he was preferential heir under section 171 of U.P. Act No. 1 of 1951, in preference to the married daughter. A memorandum of appeal, filed by the petitioners (Annexure-6) shows that Smt. Rampati was shown as married daughter of Munesar. The petitioners raised ground that as Sarjoo, brother of Munesar was alive at the time of his death, he was preferential heir under section 171 of U.P. Act No. 1 of 1951, in preference to the married daughter. Although Makkhan, in his statement had denied Smt. Rampati, being daughter of Munesar but at the time of oral argument it was admitted that she was daughter of Munesar. Statement of fact recorded in the orders in this respect has not been challenged either in the memorandum of appeal. Contrary arguments in the writ petition is not liable to be accepted. It was admitted to the witnesses of the petitioners that there was separation between the family of Munesar. If in Pariwar Register, name of married daughter of Munesar was not mentioned then no adverse inference can be drawn on its basis. Smt. Rampati and her witnesses have proved that she was daughter of Munesar. The findings recorded by the Courts below, in this respect, do not suffer from any illegality and no interference is required by this Court. Will, in favour of only married daughter, by a person living separately from his family cannot be said to be suspicious. 6. 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. (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 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." 7. Due execution of the Will is required to be proved, at least by one attesting witness under section 68 of the Evidence Act, 1872, which is 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." 8. In Bharpur Singh v. Shamsher Singh 2009 (107) RD 620 (SC), and three Hon'ble Judges Bench of Supreme Court in Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh 2009 (107) RD 48 (SC), after reviewing earlier judgments held that as per provisions of section 63 of the Succession Act, 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 and the Evidence Act which requires that at least one attesting witness has to be examined for the purpose of proving the execution. Therefore, 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. 9. In the present case, Dhanpat, attesting witness of the Will has proved due execution of the Will, according to the aforementioned principles. The arguments of the Counsel for the petitioners that Dhanpat has stated that Munesar had signed the Will although it bears thumb impressions, is not correct. 9. In the present case, Dhanpat, attesting witness of the Will has proved due execution of the Will, according to the aforementioned principles. The arguments of the Counsel for the petitioners that Dhanpat has stated that Munesar had signed the Will although it bears thumb impressions, is not correct. He has stated that after preparation of the Will, Munesar signed it, he had affixed his thumb impressions. This is continuous sentence and part of it cannot be read separately. 10. The petitioners took the plea that Munesar died on 5.7.1984. Supreme Court in Gian Chand and Bros. v. Rattan Lal 2013 (96) ALR 839 (SC), held that it is well-settled principle of law that a person who asserts a particular fact is required to affirmatively establish it. The burden of proving the facts rests on the party who substantially asserts the affirmative issues and not the party who denies it and the said principle may not be universal in its application and there may be an exception thereto. The purpose of referring to the same is that if the plaintiff asserts that the defendant had acknowledged the signature, it is obligatory on his part to substantiate the same. But the question would be what would be the consequence in a situation where the signatures are proven and there is an evasive reply in the written statement and what should be construed as substantiating the assertion made by the plaintiff. 11. The petitioners could not adduce any evidence to prove date of death of Munesar. The petitioners relied upon the circumstance that as Supervisor Kanoongo, by order dated 29.8.1984, recorded the name of Sarjoo as an heir of Munesar as such on that day Munesar was dead but the petitioner could not adduce any evidence to prove that this entry was genuine inas much as PA-11-A was issued according to the provisions of Land Record Manual and was served upon Chairman of Land Management Committee. Thus no reliance can be placed on this entry for the purposes that Munesar was dead on 27.10.1984. The other argument that Smt. Rampati, in her statement had admitted that Will was executed after death of Munesar, is also not admitted. The Counsel for the petitioner produced the photostat copy of statement of Smt. Rampati, which contains cutting in it at the relevant place. The other argument that Smt. Rampati, in her statement had admitted that Will was executed after death of Munesar, is also not admitted. The Counsel for the petitioner produced the photostat copy of statement of Smt. Rampati, which contains cutting in it at the relevant place. Last sentence of the statement, in cross examination, suggestion was given by cross examiner that Devi (other attesting witness) had not attested the Will, was denied. Immediately thereafter it has been written that Will was executed subsequent to death. This part was not relied before Consolidation Officer or Settlement Officer Consolidation. In the light of cutting made in it, it appear that suggestion given by cross examiner that Will was executed subsequent to death, was also denied but cutting was made in it, at subsequent stage. Case of Smt. Rampati and her witness was that Munesar executed the Will. There was no reason to say that Will was executed after death. 12. So far as the order of Supervisor Kanoongo, dated 29.8.1984, recording the name of Sarjoo as an heir of Munesar, is concerned, as held above, the petitioner could not adduce any evidence to prove that this entry was genuine inas much as PA-11-A was issued according to the provisions of Land Record Manual and was served upon Chairman of Land Management Committee. Otherwise also it was an administrative order of mutation under U.P. Land Revenue Act, 1901 and it has no effect in regular title proceeding. All the three consolidation authorities held that Munesar executed Will dated 27.10.1984, in favour of Smt. Rampati, his daughter. The alleged suspicious circumstances namely (i) stamp was purchased on 26.10.1984, while Will was registered on 27.10.1984. (ii) Three persons have attested the Will, (iii) Dhanpat has stated that Munesar signed the Will although it bears thumb impressions, (iv) Scribe has shown his ignorance in respect of registration and (v) Smt. Rampati, in her statement admitted that Will was executed after death of Munesar, do not raise any suspicion. In view of the aforesaid discussions, the writ petition has no merit and is dismissed.