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2016 DIGILAW 3184 (ALL)

Banshi Singh v. Board of Revenue Lko.

2016-09-17

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya),J. 1. List has been revised. Counsel for the respondents is not present. 2. Heard counsel for the petitioner. 3. The writ petition has been filed against the order of Board of Revenue, UP dated 23.5.2014 passed in mutation proceeding under Section 34 of UP Land Revenue Act, 1901. 4. The dispute between the parties is in respect of inheritance of Nanku, who was murdered on 30.6.2006 issueless. Bansi Singh (the petitioner), Raja Singh, respondent-2 and Gulab Singh, respondent-3 are real brothers of Nanku. Respondent-3 filed an application under Section 34 of UP Land Revenue Act, 1901 for mutation of his name over the property of Nanku on the basis of an unregistered Will dated 21.4.2004 executed in his favour. The petitioner has also filed an application under Section 34 for mutation of his name along with respondents- 2 and 3 being his heir under Section 171 of UP Act No.1 of 1951. Both the mutation applications were consolidated and heard by the Tehsildar who by the order dated 25.2.2010 directed for recording the name of Gulab Singh, respondent-3 over the land in dispute on the basis of an unregistered Will dated 21.4.2004. The petitioner filed an appeal against the aforesaid order. The appeal was heard by the Sub Divisional Officer, who by the order dated 29.4.2010 dismissed the appeal. The petitioner thereafter filed a revision against the aforesaid order. The revision was heard by the Additional Commissioner who by the order dated 31.10.2013 allowed the revision and set aside the orders of Tehsildar and 25.2.2010 and Sub Divisional Officer dated 29.4.2010 and remanded the matter to Tehsildar for deciding the matter afresh in accordance with law as well as the observation made by him. Gulab Singh filed a revision against the aforesaid order before Board of Revenue, UP at Lucknow. Board of Revenue, UP by the order dated 23.5.2014 allowed the revision and set aside the order of Additional Commissioner dated 31.10.2013. Hence this writ petition has been filed. 5. The Board of Revenue has recorded a finding that the Tehsildar as well as Sub Divisional Officer has rightly allowed the mutation application but the orders have been illegally set aside by the Additional Commissioner. 6. The counsel for the petitioner submits that respondents claimed their right on the basis of unregistered Will dated 21.4.2004 allegedly executed by Nanku, who died on 30.6.2006. 6. The counsel for the petitioner submits that respondents claimed their right on the basis of unregistered Will dated 21.4.2004 allegedly executed by Nanku, who died on 30.6.2006. Section 169 of UP Act No. 1 of 1951 was amended with effect from 23.8.2004 by UP Act No. 27 of 2004 providing that every Will must be a registered Will. He submits that it is well settled that will is operative only on the death of executor of the Will. Since the death of executor of the Will occurred on 30.6.2006 therefore, unregistered will cannot be relied upon. 7. I have considered the arguments of the counsel for the petitioner and examined the records. 8. Section 169 of UP Act No. 1 of 1951 as amended by UP Act No. 27 of 2004 with effect from 23.8.2004 is quoted below - 169- Bequest by a bhumidhar- (1) A [bhumidhar with transferable rights] may by will bequeath his holding or any part thereof except as provided in [sub-section (2-A)]. (2)...... (2 -A) In relation to [bhumidhar with transferable rights] belonging to a Scheduled Caste or Scheduled Tribe, the provisions of [Sections 157-A and 157-B] shall apply to the making of bequests as they apply to transfer during life time. (3) Every will made under provisions of sub-section (1) shall, notwithstanding anything contained in any law, custom or usage, [be in writing, attested by two persons and registered]. 9. A bare perusal of the aforesaid provision shows that Section 169 regulates the right of bhumidhar with transferable right to execute Will and it was provided that a bhumidhar with transferable right may by Will bequeath his holding or any part thereof according to the procedure as provided under sub-section (3). While in sub-section (3) it was provided that every will made under the provision of sub-section-(1) shall notwithstanding anything contained in any law, custom or usage be in writing, attested by two persons and registered. 10. Thus the aforesaid provision regulates the right of bhumidhar with transferable right. Nanku, who was bhumidhar with transferable right, was alive on the date of enforcement of the aforesaid amended provision. Therefore it was imperative upon him to bequeath his holding through registered Will. If the Will executed by him was unregistered then it could not be set up as a mode of succession according to the provision of 169 of the Act. Therefore it was imperative upon him to bequeath his holding through registered Will. If the Will executed by him was unregistered then it could not be set up as a mode of succession according to the provision of 169 of the Act. In such circumstances, the order of Board of Revenue is liable to be set aside. 11. In the results, the writ petition succeeds and is allowed. The order of Board of Revenue, UP dated 23.5.2014 is set aside.