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2017 DIGILAW 1061 (ALL)

ARVIND KUMAR v. STATE OF U. P.

2017-04-20

SUNEET KUMAR

body2017
JUDGMENT Hon’ble Suneet Kumar, J.—Heard Sri H.M.B. Sinha, learned counsel for the petitioner. Learned Standing Counsel appearing for the State respondents and Sri Pulak Ganguly, learned counsel appearing for third, fourth and fifth respondents. 2. Petitioners are assailing the order dated 6 March 2013 passed by the second respondent, Deputy Director of Consolidation, Bareilly (D.D.C.), whereby, the order of the Consolidation Officer (C.O.) and that of the appellate authority, Settlement Officer Consolidation (S.O.C.) has been reversed, thus, accepting the claim set up by the private respondents in respect of the disputed property. As a consequence, it has been directed that the name of the petitioners be expunged and that of the private respondents be entered in the revenue record. The facts, briefly stated, is that Pooranlal and Radhey Shyam were co-owners each having half share in the property. Both, real brothers inherited the property from their father Netram. Petitioners are legal heirs of Radhey Shyam, whereas, the third respondent is the real sister of Radhey Shyam and Pooran Lal, and, the fourth and fifth respondents are the sons of the third respondent. Pooran Lal being issue-less, therefore, the third respondent was staying with him alongwith her sons and looking after him. 2. On 28 September 1984, Pooran Lal executed a registered Will in favour of the sons of his sister (contesting respondents). Pooran Lal died in 1990, thereafter, dispute arose between the petitioners and the private respondents, for the reason that Radhey Shyam, got his name entered in the revenue record for the share of Pooran Lal. Aggrieved, the private respondents filed objections under Section 9 of the U.P. Consolidation of Holdings Act, 1953 (Act), before the C.O.; petitioners entered appearance and contested. 3. The private respondents set up their claim on the strength of the registered Will, whereas, the petitioners set up their claim on the basis of an unregistered will alleged to have been executed by Pooran Lal on 26 April 1988. Before the C.O., both the sale-deeds, were brought on record. Fourth respondent appeared as a witness, evidence of the deed writer and Banwarilal, a villager, deposed on behalf of the private respondents. Evidence was led on behalf of the petitioners, however, the learned C.O. rejected the objection of the private respondents and accepted the unregistered will. Aggrieved, a restoration application was filed as the C.O. had proceeded ex parte which was rejected. Evidence was led on behalf of the petitioners, however, the learned C.O. rejected the objection of the private respondents and accepted the unregistered will. Aggrieved, a restoration application was filed as the C.O. had proceeded ex parte which was rejected. Thereafter, the contesting respondents filed an appeal before the S.O.C. which was rejected. Finally, the revision filed by the contesting respondents was allowed by the impugned order reversing the order and judgment of the subordinate authorities. 4. The dispute between the parties primarily centered around, as to whether, the registered Will executed by Pooran Lal was duly proved by the propounder. The revisional authority, in the impugned order, upon considering the evidence, material and documents available on record and on hearing the parties noted that the C.O. misread the evidence to reject the registered Will. To prove the Will, the deed writer was examined, since the attesting witnesses had died. 5. This fact was not disputed by the petitioner; in their objection before the revisional authority they merely stated that the date of death of the attesting witness was not disclosed or mentioned by the contesting respondents. It is not being disputed that the attestator and the attesting witnesses belong to the same village, therefore, they being not alive was not disputed categorically. The Will was proved as secondary evidence by examining the deed writer, who accepted the execution of the Will, further, stated that the Will was written on the direction of Pooran Lal, thereafter, it was read out to Pooran Lal, who first appended his signature thereon, followed by the attesting witnesses. The execution of the deed was duly accepted in the cross-examination. The revisional authority while reversing the order of the C.O. and the S.O.C., was of the opinion that the categorical evidence led by the contesting respondents was not correctly appreciated or considered by the subordinate authorities. Further, the surrounding circumstances for executing the Will, noted in the impugned order, was that since the testator was issue-less, therefore, his sister was staying with him and he was not at good terms with his brother Radhey Shyam and his family, which is evident from the first information report (FIR) lodged by Pooran Lal against his brother on 1 October 1984 i.e. barely one month after executing the Will. The fact that the family of the third respondent was staying with Pooran Lal is duly reflected from the family register, wherein, the contesting respondents have been shown to be included in the family of Pooran Lal. In the backdrop of unrebutted evidence, the revisional authority was of the opinion that the Will was duly proved. Further, the surrounding circumstances does not throw any suspicion in the execution of the Will. Had the Will not been executed in favour of the sons of his sister, Pooranlal, knew that the property would devolve on Radhey Shyam and his legal heirs in view of Section 171 of the U.P. Zamindari Abolition and Land Reforms Act. Consequently, the registered Will was accepted by the revisional authority being duly proved, and the unregistered will produced by the petitioners was held to be a forged and manufactured document. Further, there was no occasion for Pooran Lal to have executed a unregistered will in favour of the petitioners in the backdrop of the animosity between the brothers. The revisional authority would further note that after the death of Pooran Lal, proceedings under Section 145/146 Cr.P.C. was initiated for possession of the disputed property, wherein, the learned Sub Divisional Magistrate directed that possession of the disputed property be handed over to the contesting respondents as it was held that they were in possession of the share of Pooran Lal. 6. In the above noted factual backdrop, learned counsel for the petitioner would submit: (i) the onus was upon the contesting respondents to prove the execution of the Will which they failed; (ii) onus would shift upon the petitioners only upon the contesting respondents having discharged their part in terms of Section 68/69 of the Evidence Act; (iii) the marginal witnesses to the Will were not produced; (iv) since the Will was not proved, the property would devolve upon the petitioners in terms of Section 171 of the U.P. Zamindari Abolition and Land Reforms Act. 7. 7. In rebuttal, learned counsel for the contesting respondents would submit: (i) the registered Will was duly proved by producing the deed writer, as the marginal witnesses were not alive; (ii) there was no occasion for Pooran Lal to have executed an unregistered will in favour of the petitioners as the relationship between the brothers was sour; (iii) documentary evidence and material produced would clearly show that the contesting respondents were family to Pooran Lal. Rival submissions fall for consideration. 8. It is not being disputed by the learned counsel for the parties that the revisional authority under the Act is the last Court of fact and law. 9. Proof of a Will has to be strictly in terms of Section 63 of the Indian Succession Act, 1925 read with Section 68 and 69, as the case may be, of the Indian Evidence Act, 1872. Supreme Court in H. Venkatachala Iyengar v. B.N. Thimmajamma and others, 1959 Supp. 1 SCR 426, opined as follows: However, 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. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. 10. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. 10. In Smt. Guro v. Atma Singh and other, 1992 (2) SCR 30 , the Supreme Court held as follows: “With regard to proof of a will, the law is well- settled that the mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement prescribed in the case of a will by Section 63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and signature of the testator as required by law is sufficient to discharge the onus. Yet again Section 68 of the Indian Evidence Act postulates the mode and manner in which proof of execution of document required by law to be attested stating that the execution must be proved by at least one attesting witness, if an attesting witness is alive and subject to the process of the Court and capable of giving evidence.” 11. In Daulat Ram and others v. Sodha and others, 2005 (1) SCC 40 , the Court opined as follows: “Will being a document has to be proved by primary evidence except where the Court permits a document to be proved by leading secondary evidence. Since it is required to be attested, as provided in Section 68 of the Indian Evidence Act, 1872, it cannot be used as evidence until one of the attesting witnesses 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. In addition, it has to satisfy the requirements of Section 63 of the Indian Succession Act, 1925. In order to assess as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But where there are suspicious circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence. The burden to prove that the Will was forged or that it was obtained under undue influence or coercion or by playing a fraud is on the person who alleges it to be so.” (Refer: Meenakshiammal (Dead) Through and others v. Chandrasekaran and another [2006 (1) SCC 280 and Sridevi and others v. Jaya Raja Shetty (2005) 8 SCC 784) 12. In Pentakota Satyanarayana and others v. Jayaraja Shetty and others, 2005 (8) SCC 784, the Apex Court held as follows: “In the instant case, the propounders were 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. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated above.” (Refer: B. Venkatamuni v. C.J. Ayodhya Ram Singh and others (2006) 13 SCC 449). Each case, however, must be determined in the fact situation obtaining therein. 13. In Babu Singh v. Ram Sahai, 2008 (14) SCC 754 , interpretation of Section 69 of the Evidence Act was in question. Section 69 would apply where no attesting witness was found. The Supreme Court held as follows: “It would apply, inter alia, in a case where the attesting witness is either dead or out of the jurisdiction of the Court or kept out of the way by the adverse party or cannot be traced despite diligent search. Only in that event, the Will may be proved in the manner indicated in Section 69, i.e., by examining witnesses who were able to prove the handwriting of the testator or executant. The burden of proof then may be shifted to others.” The issue primarily involved is, as to whether, the propounder had discharged the onus of proving the Will in terms of Section 63 of Indian Succession Act, read with Section 69 of the Evidence Act. The attesting witnesses had died. This fact is also pleaded before this Court which is unrebutted by the petitioners. The attesting witnesses had died. This fact is also pleaded before this Court which is unrebutted by the petitioners. It is merely stated that the respondents have not mentioned the date of death of the witnesses, however, the petitioners would not dispute that the testator, witnesses and the contesting parties belong to the same village. The deed writer in his testimony proved the execution of the will, which was written in the presence of the testator, thereafter, it was read out before him. The testator appended his signature and thereafter the witnesses had put their thumb impression. In cross-examination the witness proved the execution of the deed beyond suspicion. The petitioners have not discharged their onus by showing any suspicious circumstances in the execution of the Will. Rather, the surrounding circumstances, viz. lodging of FIR by the testator against his brother, the entries in the family register to establish that the respondents were family to the testator and proceedings under Section 145/146 Cr.P.C. for obtaining possession of the disputed property would clearly and unambiguously prove that the Will was duly executed without undue influence or coercion. The testator had reasons to execute the Will in favour of the respondents. The respondents were family to him and had the Will not been executed, in the backdrop of the animosity, the property would devolve upon the petitioners in terms of Section 171 of the U.P. Zamindari Abolition and Land Reforms Act, 1950. 14. Taking into consideration all relevant factors, it is found that the Will was product of a free will. The testator had full knowledge and understanding as regards the contents thereof. For the said purpose, the background facts may also be taken note of. The plea of undue influence was not taken by the petitioners. For the reasons and law stated herein above, the writ petition lacks merit, accordingly, stands dismissed. No cost.