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2019 DIGILAW 1913 (ALL)

Amarwati v. D. D. C. , Bulandshahr

2019-08-07

J.J.MUNIR

body2019
JUDGMENT : Jahangir Jamshed Munir, J. 1. This writ petition arises out of objections filed under Section 9-A (2) of the U.P Consolidation of Holdings Act filed by the petitioner No. 1, Smt. Amarwati. The objections were filed on 2.4.1991, claiming succession on basis of the last Will and testament of one, Roshan Singh, the last undisputed recorded tenure holder and the father-in-law of the petitioner No. 1, Smt. Amarwati. The right that was claimed under the Will relates to Khata Nos. 172, 407, amongst others-situate in village Rabada, Pargana Shikarpur, Tehsil and District Bulandshahar. 2. It would be profitable to refer to the short pedigree of parties in order to appreciate the petitioner's claim, and, that of the contesting respondent Nos. 4 and 5. The pedigree aforesaid is depicted below: Roshan Kanchhi Shishpal Sahaspal Amrawati (Widow) 3. The petitioner's case as put forward in the objections is that the original tenure holder, Roshan Singh had three sons, namely, Kanchhi, Shishpal and Sahaspal. Sahaspal admittedly predeceased, Roshan Singh. The first petitioner is the widow of Sahaspal. The petitioner acknowledges that in the basic year relative to the consolidation operations to which the objections relate, Roshan Singh was recorded as the bhumidhar in possession of Khata Nos. 172, 405, 407, 82A and 82B. In the basic year aforesaid over the Khata No. 172, the name of Devi Singh and Roshan Singh, sons of Udal Singh were recorded as co-tenure holders whereas, over Khata No. 405, Roshan Singh S/o Udal Singh was exclusively recorded. Likewise, in Khata No. 407, Roshan Singh and Devi Singh, last mentioned alongwith Kanchhi Singh S/o Ram Singh, were recorded. In Khata No. 82A Khadak Singh, Chandrapal, Man Singh, Shankar, Mahesh, sons of Chhitar Singh, Devi Singh and Roshan Singh S/o Udal Singh, Ramji Lal, Gyan Singh, Rewati S/o Chhattar Singh were recorded. In Khata No. 82 B, Khadak Singh, Chandrapal, Man Singh, Shankar, Mahesh S/o Chhitar Singh, Devi Singh and Roshan sons of Udal Singh, Gyan Singh, Rewati sons of Chattar Singh, Kundi Singh S/o Ram Singh were recorded. This is how the original tenure holder, Roshan Singh's tenure was recorded over different khatas in the basic year last mentioned. 4. The objections that were filed under Section 9 A(2) by the petitioner No. 1, Amarwati before the Consolidation Officer have been perused in original. This is how the original tenure holder, Roshan Singh's tenure was recorded over different khatas in the basic year last mentioned. 4. The objections that were filed under Section 9 A(2) by the petitioner No. 1, Amarwati before the Consolidation Officer have been perused in original. It figures at the top of the memorandum of the objection dated 2.4.1991 that it relates to Khata No. 407. It is claimed in the objections that Roshan Singh had executed a Will and testament dated 5.6.1987 that is his last Will, giving rights to the petitioner, Amarwati in terms of the said Will over khatas mentioned there. She claimed a right to be recorded annexing a copy of the Will aforesaid as the basis of her objections. The claim of Smt. Amarwati was contested by the two surviving sons of the testator, Roshan Singh, that is to say, Kanchhi Singh and Shishpal, respondent Nos. 4 and 5 here, who did not dispute the Will but contested the Amarwati's claim with a case that she had under the Will of Roshan Singh a right to maintenance during her life time, charged upon a specified share in the khata in dispute. To that share too she had a right to the usufruct to satisfy her right to maintenance. Upon her death rights to the said share in land would revert to respondent Nos. 4 and 5, free of the widow's charge. She entered into a matrimony of sorts described in local and customary usage as karab. It was, therefore, pleaded that by her aforesaid act of entering into matrimony, she lost her limited right of maintenance to the revisionary heirs, going by the nature and purpose of that right. On the basis of aforesaid pleadings, the Consolidation Officer framed the following four issues (rendered into english from hindi vernacular): (I) Whether Amarwati is also one of the heirs of the deceased Roshan Singh? (II) Whether Amarwati has re-married? (III) What shares do the parties have in the khatas? (IV) Whether Gata Nos. 492/1, 222 part of khata No. 405 is parti and Gata No. 492/3 is a way? 4A. The principal issues between parties over which they went to trial before the Consolidation Officer were issue Nos. (II) Whether Amarwati has re-married? (III) What shares do the parties have in the khatas? (IV) Whether Gata Nos. 492/1, 222 part of khata No. 405 is parti and Gata No. 492/3 is a way? 4A. The principal issues between parties over which they went to trial before the Consolidation Officer were issue Nos. 1 and 2, which were, as above detailed, about the fact whether Smt. Amarwati was one of the heirs of the deceased, Roshan Singh and whether she had remarried. In answering the said issues, particularly, issue No. 1, the Consolidation Officer went into the question about the validity of the Will, dated 5.6.1987 propounded by Smt. Amarwati. This Will was not disputed either by Amarwati or respondents Nos. 4 and 5. The Consolidation Officer, however, held the Will not proved. While deciding issue No. 2, the Consolidation Officer held that Smt. Amarwati had not remarried. He, accordingly, directed the name of Kanchhi, Shishpal sons of Roshan Singh and Amarwati widow of Sahaspal to be recorded over Roshan Singh's share in Khata Nos. 172, 405, 407, 82A and 82B on the basis of intestate succession. There is a detailed indication of the shares of these three co-tenure holders, as determined by the Consolidation Officer by his judgment and order dated 14.8.1995, passed in Case No. 5756, in a schedule appended to the said order. 5. Aggrieved by the Judgment and order of the Consolidation Officer, dated 14.8.1995 last mentioned, Kanchhi Singh alone preferred an appeal to the Settlement Officer of Consolidation under Section 11(1) of the Act. In appeal, the findings recorded by the Consolidation Officer were affirmed and the appeal dismissed vide judgment and order, dated 13.6.1997. 6. Aggrieved by the order of Settlement Officer of Consolidation, Shishpal Singh and the other co-tenure holders whose rights came to be decided by the Settlement Officer, approving the findings of the Consolidation Officer, filed Revision No. 163 to the Deputy Director of Consolidation. The Deputy Director of Consolidation went into the validity of the Will propounded by the petitioner, Smt. Amarwati which had been rejected by the Consolidation Officer on basis of his view of the evidence that finds eloquent mention in the Consolidation Officer's order. The Deputy Director of Consolidation was at pains to review the reasoning of the Consolidation Officer. The Deputy Director of Consolidation went into the validity of the Will propounded by the petitioner, Smt. Amarwati which had been rejected by the Consolidation Officer on basis of his view of the evidence that finds eloquent mention in the Consolidation Officer's order. The Deputy Director of Consolidation was at pains to review the reasoning of the Consolidation Officer. He also took note of argument urged before him that there was no issue framed by the Consolidation Officer about the validity of the Will, that he pronounced upon. The Deputy Director of Consolidation held that the Consolidation Officer had found the Will to be suspicious, saying that one of the attesting witness one, Khushi Ram in his deposition had said that he had signed all pages, but his signature appeared on a single paper. This finding of the Consolidation Officer, the Deputy Director of Consolidation has held to be one based on an unwholesome view of the evidence. He has opined that the Consolidation Officer should have read the deposition of the attesting witness in its entirety. It was observed in his analysis of evidence by the Deputy Director of Consolidation that discrepant statements of this kind are commonplace. Even otherwise, it was opined by the Deputy Director of Consolidation that at the time of registration of Will, the attesting witness is required to sign multiple times. It was recorded by the Revisional Court that the revisionist filed the original Will dated 5.8.1987. By the said Will, the testator, Roshan Singh had bequeathed all his movable and immovable property to his two sons, Kanchi Singh and Shish Pal, and had also made a bequest in favour of his daughter-in-law, Smt. Amarwati. Two attesting witnesses of Will were Khushi Ram and Dhani Ram. Both were examined to prove the Will. The Deputy Director of Consolidation recorded a finding that a perusal of the record shows that both parties, who put in objections, have affirmed the execution of the will. Two attesting witnesses of Will were Khushi Ram and Dhani Ram. Both were examined to prove the Will. The Deputy Director of Consolidation recorded a finding that a perusal of the record shows that both parties, who put in objections, have affirmed the execution of the will. The petitioner, Smt. Amarwati was found to have said in her objections in paragraph 3(as recorded by the Deputy Director of Consolidation) to the following effect: ^^izfroknh uaŒ1 e`rd gks x;s gSA mUgksus okfnuh ds uke olh;r fy[kk FkkA tks lkFk esa laYkXu gS ds vuqlkj okfnuh dk uke dkxtkr es vfdr gksuk pkfg;sA^^ (Emphsis by Court) The Deputy Director of Consolidation has then taken note of a document, marked as paper 1, which is a xerox copy of the said Will. The Deputy Director of Consolidation has gone on to say that the revisionist on the one hand, and Kanchhi, in his objections on the other, have specifically acknowledged that succession to the property is one to be recorded on the basis of the Will. Kanchhi and Shish Pal in their reply dated 27.12.1991 vide paragraph Nos. 3 and 4 have admitted the factum of execution the Will in question. The Deputy Director of Consolidation has categorically said that the Will gives Amrawati a right to maintenance, and a sum of Rs. 2,000/- each to the two minor daughters of Sahaspal, that has been invested in National Saving Certificates with a term of six years. There is a very detailed analysis by the Deputy Director of Consolidation about the circumstances attending the execution of Will, and the depositions made by the attesting witnesses, to prove its due execution, that were considered to be dependable by the DDC. The evidence on the basis of which the Will was sought to be proved was examined by the Deputy Director of Consolidation, and, the Will was held to be proved. The Deputy Director of Consolidation has unhesitatingly held the Will proved, on the basis of a finding that reads to the following effect (in Hindi vernacular): ^^bl izdkj iathd`r foys[k] ftldk iathdj.k mlds vuqizek.ku lk{kh [kq'khjke }kjk lkfcr fd;k x;k vkSj mHk; i{kks us viuh&viuh vkifŸk;ksa esa bls Lohdkjk gS] dh vekU; djus dk dksbZ vkSfpR; ugha gSA^^ 8. Thus, according to the Deputy Director of Consolidation, the Will has been accepted by both parties. Thus, according to the Deputy Director of Consolidation, the Will has been accepted by both parties. Thereafter, the Deputy Director of Consolidation has taken into consideration the plaint dated 22.4.1987 giving rise to O.S. No. 194 of 1987 on the file of the learned Munsif-IVth, Bulandshahr and the order dated 18.11.1987, passed in the said suit. It has been recorded that a perusal of the plaint giving rise to the suit shows that it was filed on 22.4.1987, seeking relief of permanent injunction restraining Roshan Singh from alienating his property, the subject-matter of the dispute. The Will was executed on 5.8.1987 and the suit came to be decided 8.11.1987 which, according to Sri Rahul Sahai, was withdrawn. The said fact has also been recorded by the Deputy Director of Consolidation in his order that after the execution of the Will, the suit was withdrawn. This fact has been taken into consideration by the Deputy Director of Consolidation as circumstantial evidence to point out that the Will, indeed was genuine. The Deputy Director of Consolidation has also been at pains to consider the stand taken by Smt. Amarwati in the witness box, where she has said that after the death of her husband Sahpal, she did not marry anyone. She has also said that the wife of Kanchhi, Sushila is alive. She has also said that she is not aware of any other Will that her father-in-law has executed. She has also been noted to have said that prior to the present objections she had not filed any other case; nor had she gone to any Court. She also said that prior to her deposition in Court before the Consolidation Officer, she had never appeared before any Court. She had never thumb marked any document that she remembers. The Deputy Director of Consolidation from this evidence of Amarwati, concluded that her stand is contradictory, and that she is trying to suppress facts. 9. The Deputy Director of Consolidation has also taken into account a compromise, dated 20.7.1994, where the factum of execution of the will in question has been acknowledged. The Deputy Director of Consolidation has concluded on a meticulous examination of the evidence on record that the Will is proved and the estate of Roshan Singh would devolve by testamentary succession, under Section 169 of the Act. The Deputy Director of Consolidation has concluded on a meticulous examination of the evidence on record that the Will is proved and the estate of Roshan Singh would devolve by testamentary succession, under Section 169 of the Act. It would be governed by the aforesaid provision: whatever rights the widow has acquired under the Will would be her's, and even if she has remarried, there would be no defeasance. On the aforesaid conclusions, the Deputy Director of Consolidation held that the orders of the Courts below are not sustainable. He allowed the revision setting aside the orders of the Consolidation Officer and the Settlement Officer of Consolidation, dated 14.8.1995 and 13.6.1997, respectively, and declared the rights, of parties including the petitioners over Khata No. 172, 405, 407, 82A and 82B, in accordance with the Will dated 5.6.1987, being the last Will and testament of Roshan Singh. He has indicated the shares of parties in various khatas in terms of the aforesaid Will in a scheduled, scripted at the foot of the impugned order, dated 6.8.1997. 9A. Heard Sri M.C. Singh, learned counsel for the petitioners Nos. 2 and 3 who are purchasers from Smt. Amarwati. No one has appeared on behalf of Amarwati on any of the dates, when this matter has been heard. Sri Rahul Sahai, learned counsel appearing on behalf of respondent No. 4 has been heard on his behalf. No one has appeared on behalf of Respondent No. 5. 10. The submission of Sri M.C. Singh, learned counsel for the petitioners is that the order of the Deputy Director of Consolidation is manifestly illegal and flawed. He submits that this is so because now, he does not wish to rely on the Will which brings about an inequitable distribution to the estate of Roshan Singh, between his two sons and his widowed daughter-in-law. He does not deny the fact that this Will was propounded by Smt. Amarwati in whose shoes, the petitioner Nos. 2 and 3 have stepped but says that in the peculiar facts and circumstances, the disposition made by the Will should be condemned as unfair and modified in a more equitable manner. It is also argued that the Will that he has propounded, may be one thing but it is for the Court to determine whether the Will is proved in accordance with law. It is also argued that the Will that he has propounded, may be one thing but it is for the Court to determine whether the Will is proved in accordance with law. It is the submission of Sri M.C. Singh, learned counsel for the petitioners that the Will has not been proved in accordance with law. In this regard, he has invited the attention of the Court to that part of the finding of the Consolidation Officer, where he finds the attesting witness Khushi Ram to be not dependable, and, therefore, the execution of the Will not proved free from all clouds of doubt. It is argued that so far as the Settlement Officer of Consolidation is concerned, he did not go into the validity of the Will and hardly pronounced upon that; he put in a judgment of passive affirmation, without going through the entire evidence. Sri M.C. Singh, learned counsel for the petitioners criticized the judgment of the Deputy Director of Consolidation on ground that being a Court of Revision, it was not his province to undertake a wholesome review of evidence and in that exercise record a pure finding of fact regarding the validity of Will, contrary to that recorded by the Consolidation Officer and affirmed by the Settlement Officer. In support of his case, Sri M.C. Singh, learned counsel for the petitioners relied upon the decision of this Court in Ram Karon Shukla v. Deputy Director of Consolidation, Fatehpur and others, 2001 (92) RD 695 , where this Court has held that the Deputy Director of Consolidation, cannot act as a Consolidation Officer and substitute his own findings. The Deputy Director of Consolidation is a Court of Revision. In Ram Karan Shukla (supra) it has been held thus in para 4: 4. "On the other hand, learned counsel for the contesting respondents supported the validity of the orders passed by the Deputy Director of Consolidation. It was argued that the findings recorded by the Deputy Director of Consolidation were based on relevant evidence on the record. They were all findings of fact, which could not be interfered with by this Court under Article 226 of the Constitution of India. I have considered the submissions made by learned counsel for the parties and also perused the record. They were all findings of fact, which could not be interfered with by this Court under Article 226 of the Constitution of India. I have considered the submissions made by learned counsel for the parties and also perused the record. X X X From a reading of the aforesaid statutory provision, it is apparent that the Deputy Director of Consolidation may send for the record of any case or proceedings decided by the authorities below to satisfy himself as to the regularity of the proceedings, or as to the correctness, legality or propriety of any order other than interlocutory orders passed by the authorities below. It is, thus, apparent that if the proceedings taken or orders are found irregular or the orders passed by the authorities below are found to be illegal, incorrect or improper, the Deputy Director of Consolidation can set aside the said proceedings or order and can allow a revision. In the present case, the requisite findings have not been recorded by the Deputy Director of Consolidation. It has not been held that the proceedings held by the authorities below were in any manner, irregular or the orders passed by them were illegal, incorrect or improper. He has acted wholly illegally and arbitrarily in observing that the chaks of the parties were liable to be exchanged. The Deputy Director of Consolidation cannot act as the Consolidation Officer. He cannot substitute his findings for the findings recorded by the authorities below as a matter of course." 11. In addition, reliance has been placed on another decision of this Court in Smt. Bechna v. Deputy Director of Consolidation, Varanasi and others, 2001 (92) RD 693 , where this Court to the same effect has held that the Deputy Director of Consolidation is a Court of Revision, who cannot re-appreciate and reappraise evidence on merits, taking a view contrary to what the two Authorities of fact below have held. In Smt. Bechna (supra), this Court has held in para 7 of the report, thus: "7. Smt. Bechna, as stated above, claimed that she was in possession over the land in dispute since the sale-deed was executed in her favour on 13.11.1956 by respondent No. 2. Her name was also mutated in the revenue papers after following the procedure prescribed under the law, therefore, she was entitled to retain the land in dispute. Smt. Bechna, as stated above, claimed that she was in possession over the land in dispute since the sale-deed was executed in her favour on 13.11.1956 by respondent No. 2. Her name was also mutated in the revenue papers after following the procedure prescribed under the law, therefore, she was entitled to retain the land in dispute. In the objection filed by the respondent No. 2, the validity of the sale-deed was not challenged by the respondent No. 2. It was also not pleaded that he was minor at the time the sale-deed was executed, therefore, he had no right to lead evidence contrary to his pleadings, that at the time of execution of sale-deed in question he was minor inasmuch as it is well-settled in law that no amount of evidence shall be admissible in the absence of pleadings. The evidence led by respondent No. 2 to the effect that he was minor at the time of execution of sale-deed was, thus, inadmissible in evidence. However, in case, the Deputy Director of Consolidation felt that the findings recorded by the Settlement Officer Consolidation, for any reason, were not correct, he could upset the findings and remand the case for decision afresh to the Settlement Officer Consolidation. He had no jurisdiction to substitute his own findings for the findings recorded by the Settlement Officer Consolidation on the questions of facts after re-appreciating and re-appraising on the evidence on record, which was relied upon by the Settlement Officer Consolidation. The submission made by learned counsel for the contesting respondent, to the contrary, therefore, cannot be accepted. In may opinion, the writ petition is liable to be allowed and the case is liable to be remanded to the Deputy Director for Consolidation for decision afresh in the light of the observations made above and in accordance with law." 12. Further reliance has also been placed by Sri M.C. Singh, learned counsel for the petitioners upon the decision of this Court in Ram Adhar and others v. Assistant Director of Consolidation, Banda and others, 2003 (94) RD 697, where. also it is held that the Deputy Director of Consolidation, cannot act as the Settlement Officer or the Consolidation Officer. It was held that the jurisdiction of the Deputy Director of Consolidation under Section 48 of the Act is limited and can be exercised within the four corners of the Act alone. also it is held that the Deputy Director of Consolidation, cannot act as the Settlement Officer or the Consolidation Officer. It was held that the jurisdiction of the Deputy Director of Consolidation under Section 48 of the Act is limited and can be exercised within the four corners of the Act alone. It was held in Ram Adhar and others (supra) thus: "7. From a reading of the aforesaid section, it is clear that the jurisdiction of the Deputy Director of Consolidation under the aforesaid section is limited. He can interfere in the orders passed by the authorities below if the findings recorded by them are found to be incorrect, illegal or improper, but he has got no jurisdiction to interfere with the orders passed by the Settlement Officer, Consolidation if the findings recorded by him are not found to be bad in law. The Deputy Director of Consolidation nowhere held that the findings recorded by the Settlement Officer Consolidation were in any manner illegal. He has actually reappraised the entire evidence and substituted his own findings for the findings recorded by the Settlement Officer Consolidation which is, as stated above, not permissible under the law. A reference in this regard may be made to the decision of the Apex Court in the case of Gaya Din v. Hanuman Prasad, and the decision of this Court in the case of Ram Koran Shukla v. Deputy Director of Consolidation and others. 8. In the aforesaid decisions, it has been ruled by the Apex Court and this Court that the Deputy Director of Consolidation cannot act as the Consolidation Officer or the Settlement Officer Consolidation and he can exercise the power within the four corners of Section 48 of the Act." 13. In order to further buttress his point, the decision of this Court on which Sri M.C. Singh, learned counsel for the petitioners further placed reliance is Jangi Lal v. Deputy Director of Consolidation, Allahabad and others, 2002 (93) RD 35. It was held there that the limitation on the powers of the Deputy Director of Consolidation as a Court of Revision did not permit him to substitute his own findings for those of the Authority ties below, though he could set aside illegal findings or those manifestly erroneous. After a review of authority on the point that was then ruling, it has held in Jangi Lal (supra) thus: "7. After a review of authority on the point that was then ruling, it has held in Jangi Lal (supra) thus: "7. By this Court, it has been consistently held that in exercise of powers under Section 48 of the Act if the Deputy Director of Consolidation comes to the conclusion that the findings recorded by the authorities below, i.e., the Settlement Officer, Consolidation or the Consolidation Officer were illegal or Irregular or improper or incorrect, he could set aside the said findings after reappraisal of the evidence, but he could not substitute his own findings. A reference in this regard may be made to the decisions of this Court in case of Ram Koran Shukla (supra) and another case of Smt. Bechna (supra). So far as the decision of the Supreme Court in Gayadin's case is concerned, the Apex Court in paragraph Nos. 11, 12 and 13 was pleased to observe/hold as under: "(quoted part omitted)". From the fact of Gayadin's case, it is evident that the Deputy Director of Consolidation allowed the revision and remanded the case to the Settlement Officer, Consolidation vide order dated 6.7.1971. The Settlement Officer, Consolidation by order dated 22.9.1973 allowed the appeal. Thereafter, the Deputy Director of Consolidation set aside the order passed by the Settlement Officer, Consolidation and allowed the revision by order dated 7.4.1975. Subsequently, the order passed by the Deputy Director of Consolidation was set aside by the High Court in exercise of the power under Article 226 of the Constitution of India and the order passed by the Settlement Officer, Consolidation was restored. Challenging the validity of the order of the High Court. Civil Appeal No. 191 of 1991 was filed in the Supreme Court which was dismissed by the Supreme Court by judgment and order dated 27.11.2000. Thus, ultimately, the order passed by the Settlement Officer, Consolidation, dated 22.9.1973, was upheld. The question as to whether the Deputy Director of Consolidation had the jurisdiction to substitute his own findings for the findings recorded by the Settlement Officer, Consolidation was neither raised before it nor was considered by the Supreme Court in the said decision. Thus, ultimately, the order passed by the Settlement Officer, Consolidation, dated 22.9.1973, was upheld. The question as to whether the Deputy Director of Consolidation had the jurisdiction to substitute his own findings for the findings recorded by the Settlement Officer, Consolidation was neither raised before it nor was considered by the Supreme Court in the said decision. From the reading of the judgment of the Apex Court, it is apparent that the view taken by the said Court is that the Deputy Director of Consolidation could set aside the findings of fact if they were found to be perverse or against the weight of evidence on record but it has not been held that after setting aside those findings, the Deputy Director of Consolidation himself could substitute his own findings. Therefore, the submission made by the learned counsel for the contesting respondent cannot be accepted. In the cases arising out of the provisions where phraseology similar to the phraseology used in Section 48 of the U.P. Consolidation of Holdings Act came to be considered. For example. Section 25 of the Provincial Small Cause Courts Act, this Court consistently held that the revisional Court has no jurisdiction to substitute its own findings for the findings recorded by the original or the appellate authority. A reference in this regard may be made to a Division Bench decision of this Court in Laxmi Kishore and others v. Har Prasad Shukla, 1979 ACJ 473, wherein it was ruled as under: 15. If it finds that there is no evidence to sustain a finding on a particular issue of fact, it can Ignore that finding. Same will be the case where the finding is based only on inadmissible evidence. In such cases the Court will be Justified in deciding the question of fact Itself, because the evidence is all one way. No assessment is needed. The Court can also decide the revision if only a question of law or some preliminary point of law viz., validity of notice, is sufficient for its decision. 16. But, if it finds that a particular finding of fact is vitiated by an error of law, it has power to pass such order as the justice of the case requires; but it has no jurisdiction to reassess or reappraise the evidence in order to determine an issue of fact for Itself. 16. But, if it finds that a particular finding of fact is vitiated by an error of law, it has power to pass such order as the justice of the case requires; but it has no jurisdiction to reassess or reappraise the evidence in order to determine an issue of fact for Itself. If it cannot dispose of the case adequately without a finding on a particular issue of fact, it should send the case back after laying down proper guidelines. It cannot enter into the evidence, assess it and determine an issue of fact. 17. Our answer to the question referred to us is that in the state (sic) circumstances, the revisional Court has no power to consider the evidence for itself in order to determine an issue of fact. The proper course is to remand the case to the trial Court." 14. It is also argued by learned counsel for the petitioners that the findings of the Consolidation Officer which are very substantial, have not been specifically set aside by the Deputy Director of Consolidation and in the absence of that being done, the impugned judgment could not have been passed, disturbing the two Authorities below. In support of his contention on this point, he has relied upon a decision of this Court in Nand Kishore and others v. Deputy Director of Consolidation, Varanasi and others, 2005 (98) RD 675, where it was held: "10. A perusal of the judgment of the Deputy Director of Consolidation clearly shows that he has not set aside the findings of the Consolidation Officer and the Settlement Officer Consolidation. Without setting aside the findings recorded by the Consolidation Officer and the Settlement Officer Consolidation he has erroneously held that the land of Khata Nos. 4 and 221 were acquired before partition of the family. He has completely ignored the oral evidence which was relied upon by the Consolidation Officer and the Settlement Officer Consolidation. The findings of the Deputy Director of Consolidation with regard to these two khatas, as a matter of facts, are based on no evidence and thus cannot be sustained." 15. 4 and 221 were acquired before partition of the family. He has completely ignored the oral evidence which was relied upon by the Consolidation Officer and the Settlement Officer Consolidation. The findings of the Deputy Director of Consolidation with regard to these two khatas, as a matter of facts, are based on no evidence and thus cannot be sustained." 15. In support of his contention that was raised earliest in assail of the impugned judgment passed by the Deputy Director of Consolidation that Will was not proved free from all doubts by the attesting witness, Sri M.C. Singh, learned counsel for the petitioners has relied on a decision of their Lordship of Supreme Court in Balathandayutham and (mothers v. Ezhilarasan, 2010 (110) RD 412 . In the said decision, it has been held thus: "6. At this juncture, the case made out by the plaintiff-respondent is very relevant. Plaintiff's case is that his father, the testator, went to a temple for attending a function and from there testator was taken by the 1st appellant to Cuddalore and coming to know this fact the plaintiff-respondent went to the house of the 1st appellant and the plaintiff-respondent went there and took the testator back to his house at Villupuram where he was staying all these years and where he ultimately died. Therefore, both the subsequent Will, namely, Ex. B-19 and Ex. B-20 were allegedly executed by the testator a couple of weeks before his death and when he was made to stay in the house of the 1st appellant. It appears that the attestors of both the aforesaid two Wills were all of Cuddaiore and were strangers to the family. Those two Wills surfaced only at the time when the 1st appellant gave his written statement in 1994 in the suit filed by the plaintiff-respondent. According to our judgment, these are suspicious circumstances surrounding Ex. B-19 and Ex. B-20. 8. This Court also thinks that in view of the discussion made hereinabove that both Ext. B-19 and Ext. B-20 are surrounded by various suspicious circumstances. When a will is surrounded by suspicious circumstances, the person propounding the will has a very heavy burden to discharge. This has been authoritatively explained by this Court in H. Venkatachala Iyengar v. B.N. Thimmajamma [ AIR 1959 SC 443 ]. B-19 and Ext. B-20 are surrounded by various suspicious circumstances. When a will is surrounded by suspicious circumstances, the person propounding the will has a very heavy burden to discharge. This has been authoritatively explained by this Court in H. Venkatachala Iyengar v. B.N. Thimmajamma [ AIR 1959 SC 443 ]. P.B. Gajendragadkar, J. (as His Lordship then was) in para 20 of the judgment, speaking for the three-Judge Bench in H. Venkatachala [ AIR 1959 SC 443 ] held that in a case where the testator's mind is feeble and he is debilitated and there is not sufficient evidence as to the mental capacity of the testator or where the deposition in the will is unnatural, improbable or unfair in the light of the circumstances or it appears that the bequest in the will is not the result of the testator's free will and mind, the Court may consider that the will in question is encircled by suspicious circumstances. 11. Insofar as the execution of the will is concerned, under Section 63 of the Succession Act, 1925 it has to 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. Section 68 of the Evidence Act, 1872 further provides that if a document is required by law to be attested it shall not be used as an 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 is capable of giving evidence. There is a proviso under Section 68 but we are not concerned with the proviso here. 12. There is a proviso under Section 68 but we are not concerned with the proviso here. 12. Commenting on these provisions, this Court in H. Venkatachala [ AIR 1959 SC 443 ] laid down that Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as an evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. It was further held that Section 63 of the Succession Act requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the pro-pounder is proved to be the last will of the testator has to be decided in the light of these provisions, [see page 451]" 16. Sri Rahul Sahai, learned counsel appearing for respondent No. 4 on the other hand contended that the present case has arisen in a scenario that has a major difference with a case where one party propounds the Will and other disputes it. Here is a case where both the parties have propounded the Will. Petitioner No. 1, whose interest is now represented by petitioner Nos. 2 and 3 has made the Will in question, the basis of her objections filed under Section 9-A (2). She has relied on the Will to claim her right in the estate of her deceased father-in-law. She has all through stood by the Will, but after the judgment of the Revisional Court, has changed stance to assail it. He submits that she has possibly found the Will to be not a profitable bargain. She has relied on the Will to claim her right in the estate of her deceased father-in-law. She has all through stood by the Will, but after the judgment of the Revisional Court, has changed stance to assail it. He submits that she has possibly found the Will to be not a profitable bargain. He submits that this kind of a shirting stand is not at all countenanced by the law, as it militates against one of the most fundamental doctrines that frowns upon approbation or re-approbation by a party. In support of the aforesaid proposition, he relies upon a decision of the Supreme Court in Suzuki Parasrampwia Suitings Pvt. Ltd. v. Official Liquidator of Mahendra Petrochemicals Ltd. (In Liquidation) and others, 2019 (143) RD 307, where their Lordships dealing with the question of a litigant taking contradictory stands, have held: "12. A litigant can take different stands at different times but cannot take contradictory stands in the same case. A party cannot be permitted to approbate and reprobate on the same facts and take inconsistent shifting stands. The untenability of an inconsistent stand in the same case was considered in Amar Singh v. Union of India [Amar Singh v. Union of India, (2011) 7 SCC 69 : (2011) 3 SCC (Civ) 560], observing as follows: (SCC p. 86, para 50) "50. This Court wants to make it clear that an action at law is not a game of chess. A litigant who comes to Court and invokes its writ jurisdiction must come with clean hands. He cannot prevaricate and take inconsistent positions." 13. A similar view was taken in Joint Action Committee of Air Line Pilots' Assn. of India v. DGCA [Joint Action Committee of Air Line Pilots 'Assn. of India v. DGCA, (2011) 5 SCC 435 ], observing: (SCC p. 443, para 12) "12. The doctrine of election is based on the rule of estoppel-the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity.... Taking inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily." 17. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity.... Taking inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily." 17. Sri Rahul Sahai, learned counsel for the respondent No. 4 further submits that one of the objections to the impugned order is that whatever has been said about the Will is without framing an issue about it. He submits that the point really does not arise as the question of issue about the validity of the Will is determined while deciding issue No. 1, framed by the Consolidation Officer. He further submits that a perusal of the judgment recorded by the Consolidation Officer would indicate that parties were well aware of what was the case of the other side that they had to suit at the trial; they were well aware of each other's case. The case was decided on merits, evidence led and the issue fully suited. In the circumstances, the judgment that was pronounced on that basis would not be vitiated for the mere formality of non framing of an issue about the Will. In his support, he relied upon a judgment of this Court in Suresh Giri v. Lal Guddan Giri, 2016(2) ADJ 198 . He has drawn the attention of the Court to paragraphs 9, 10 and 11 of the report in Suresh Giri (supra) which reads thus: "9. In G Amalorpavam v. R C. Diocese of Madurai, (2006) 3 SCC 224 : 2006 (2) AWC 1463 (SC), the Apex Court has held as under: "The question whether in a particular case there has been substantial compliance with the provisions of Order XLI, Rule 31, C.P.C. has to be determined on the nature of the judgment delivered in each case. Noncompliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate Court is in a position to ascertain the findings of the lower appellate Court. Noncompliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate Court is in a position to ascertain the findings of the lower appellate Court. It is no doubt desirable that the appellate Court should comply with all the requirements of Order XLI, Rule 31, C.P.C. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate Court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate Court there is substantial compliance with the provisions of Order XLI, Rule 31, C.P.C. and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate Court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate Court, it would be a valid judgment even though it does not contain the points for determination. The object of the rule in making it incumbent upon the appellate Court to frame points for determination and unity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of second appeal conferred by Sectiontunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of second appeal conferred by Section 100, C.P.C." 100, C.P.C. to cite reasons for the decision is to" focus attention of the Court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of second appeal conferred by Section 100, C.P.C." 10. Thus, it is clear that in every case, non-compliance of provisions of Order XLI, Rule 31, C.P.C. may not result in vitiation of judgment. If substantial compliance of this provision of Order XLI, Rule 31 has been made and actually point of determination has been taken and decided, then mere formal non-framing of point of determination would not adversely affect the judgment because it would not prejudice any legal right of appellant. 11. No doubt, no formal point of determination was framed, but since the parties went to trial and appeal fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of any point of determination was fatal to the case, or that there was that mistrial which vitiates proceedings. I am, therefore, of opinion that the appeal could not be allowed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion. Therefore, the contentions of learned counsel for the appellant on this point are also found unacceptable." 18. This Court has carefully considered the rival submissions advanced on both sides. Therefore, the contentions of learned counsel for the appellant on this point are also found unacceptable." 18. This Court has carefully considered the rival submissions advanced on both sides. It must be at once remarked that the Will that is subject-matter of the dispute now at the instance of the petitioner was the foundation of her objection under Section 9-A (2) of the Act. This Court had some doubt about this particular facet of the matter, and, therefore, summoned records in original to look into the objections that the first petitioner filed before the Consolidation Officer, under Section 9-A(2) of the Act. A perusal of objections in original clearly shows that the first petitioner has found her claim to the property in dispute as a legatee under the Will dated 5.6.1987, a copy of which has been filed as basis to the said objections, dated 2.4.1981 before the Assistant Consolidation Officer, Shikarpur. The petitioner's case and claim are then founded on the Will and not on any kind of intestate succession. The petitioner's claim was contested by the respondent Nos. 4 and 5 on ground that since the petitioner, a widow of their late brother, had remarried, she would not get any right under the Will. The Will per se was not disputed. Nevertheless, the Consolidation Officer went into the validity of the Will and examined it on the basis of evidence whether the same had been proved in accordance with the requirements of Section 68 of the Indian Evidence Act, and Section 63(c) of the Indian Succession Act. He found a minor discrepancy in the testimony of attesting witness, Khushi Ram who said that he had signed all the pages, whereas the Will had been signed by him on one page alone. It is on the edifice of this inaccuracy that the Consolidation Officer detected that he condemned the execution of the Will, wholesomely. The Deputy Director of Consolidation on the other hand found that the Will had been executed in accordance with law and attested as per legal requirements. He went into the other question also, regarding the circumstances in which the Will was executed to find out, if the Will was indeed a testament genuinely left behind by the maker. For cogent reasons that have elaborately recorded by the Deputy Director of Consolidation, the Will was accepted. He went into the other question also, regarding the circumstances in which the Will was executed to find out, if the Will was indeed a testament genuinely left behind by the maker. For cogent reasons that have elaborately recorded by the Deputy Director of Consolidation, the Will was accepted. While doing so, the Deputy Director of Consolidation has taken into consideration that both sides do not dispute the factum of execution of the Will, but he reached his conclusions not just on that ground. He found the Will to be proved in accordance with law, on the basis of evidence aliened. This Court must also remark that apart from what the Deputy Director of Consolidation has said, the Will manifests a natural disposition made by the father-in-law. One of the considerations while judging the validity of the Will is to see if it makes disposition that is natural or on that is to its face illogical; if it makes a disposition that is unconventional, it may raise eyebrows. The Will that make an outrageous disposition may be frowned upon and scrutinized with the greatest of care and suspicion. This scale of scrutiny on one parameter would certainly vary according to the dispositions being natural to the testator. In the present case, the father-in-law by his testament provided for maintenance to his daughter-in-law during her life time, charging it to the usufruct of a certain part of the land that he left behind for her provision. He has made that provision for his daughter-in-law during her life time. This kind of disposition to make, in the opinion of this Court, is very natural. So far as objections regarding the requirements of attestation of a Will are concerned, it has been pointed out by Sri M.C. Singh, learned counsel for the petitioners that these are governed by Section 68 of the Evidence Act and, in particular, of Section 63 (c) of the Succession Act. 19. Their Lordships of Supreme Court in a very recent decision in Ganesan (D) Through Lrs v. Kalanjiam and others in Civil Appeal Nos. 5901-5902 of 2009, decided on 11.7.2019, have held that the signature of the testator on the Will being undisputed, Section 63(c) of the Indian Succession Act requires acknowledgment of execution by the testator, which the witnesses have attested in his presence. 5901-5902 of 2009, decided on 11.7.2019, have held that the signature of the testator on the Will being undisputed, Section 63(c) of the Indian Succession Act requires acknowledgment of execution by the testator, which the witnesses have attested in his presence. The witnesses seeing the testator sign in their presence has been liberalized to a more reasonable principle by their Lordships indicating that what is to be seen is that the testator came to the witnesses with a signed Will and read it out to them, which they have attested. The rigour of the rule about the witnesses seeing the testator sign and the testator seeing the witnesses' sign, at the same time, seems to have been relaxed in favour of a more substantial compliance of the requirement. In paragraph 5 of their Lordships decision in Ganesan (D) Through Lrs. (supra) it has been held: "5. The appeals raise a pure question of law with regard to the interpretation of Section 63(c) of the Act. The signature of the testator on the will is undisputed. Section 63 (c) of the succession Act requires an acknowledgement of execution by the testator followed by the attestation of the Will in his presence. The provision gives certain alternatives and it is sufficient if conformity to one of the alternatives is proved. The acknowledgement may assume the form of express words or conduct or both, provided they unequivocally prove an acknowledgement on part of the testator. Where a testator asks a person to attest his Will, it is a reasonable inference that he was admitting that the Will had been executed by him. There is no express prescription in the statute that the testator must necessarily sign the will in presence of the attesting witnesses only or that the two attesting witnesses must put their signatures on the will simultaneously at the same time in presence of each other and the testator. Both the attesting witnesses deposed that the testator came to them individually with his own signed Will, read it out to them after which they attested the Will." 19A. It must be noticed here that like the Will that was before their Lordships in Ganesan (D) Through Lrs (supra), the present Will is also a registered document. It is a Will that the attesting witnesses have signed, also in presence of the Registrar, after the testator had put his signatures. It must be noticed here that like the Will that was before their Lordships in Ganesan (D) Through Lrs (supra), the present Will is also a registered document. It is a Will that the attesting witnesses have signed, also in presence of the Registrar, after the testator had put his signatures. In the context of the aforesaid position of law, the submission of Sri M.C. Singh, learned counsel for the petitioners that the Will has not proved beyond doubt, cannot be accepted. 20. Turning to the next submission that some reasonable disposition of the Will should be inferred by this Court, this Court must say at once that there is no principle by which a Will can be rationalized after it is proved, but the Will indeed is required to be proved beyond all suspicious circumstances and any suspicion surrounding it, must be dispelled. The Will has to be given effect to, in the manner it has been scripted by its maker. It is not for the Court or anybody else to re-write the testator's Will invoking some idea of rationality, which the testator did not intend. The aforesaid contention of Sri M.C. Singh, learned counsel for the petitioner, therefore, cannot be accepted. 21. The other question about the Will, still remains not much to be answered. It is that, that the first petitioner relied upon the Will in her objection that she filed, staking claim in her father-in-law's property. It was claimed on the basis of a copy of Will as she did not have the original, that was with the sons of the testator. In course of time, the sons filed the original as well. As such, the Will as well as the secondary evidence is not the issue here. What is important is that the first petitioner relied upon her father-in-law's Will as the basis of her claim. Now, at some point of time, she has realized that all that she has got under the Will is her right to maintenance and that is what appears to have made her change mind to say that she disputes the Will, and now claims on the basis of intestate succession. This kind of a change of stance certainly falls squarely within the principle against approbation and re-approbation. This change of stand, therefore, by the first petitioner and a fortiori by her assignees, petitioner Nos. This kind of a change of stance certainly falls squarely within the principle against approbation and re-approbation. This change of stand, therefore, by the first petitioner and a fortiori by her assignees, petitioner Nos. 2 and 3, cannot be accepted. 22. The last submission of Sri M.C. Singh, learned counsel for the petitioner is about limitation on the power of the Revisional Court to go into a question of fact and upturn findings of the Consolidation Officer and the Settlement Officer of Consolidation, recorded on the basis of evidence, taking a plausible view of it. The decisions relied upon by Sri M.C. Singh, learned counsel for the petitioner are all rendered in a different statutory context. The U.P. Consolidation of Holdings Act was amended by U.P. Act No. 3 of 2002, giving it retrospective effect, with effect from 10.11.1980, by adding Explanation (3) to Section 48 of the Act. The decision can be best appreciated by extracting the provisions of Section 48 of the Act in extenso, with the added explanation. The provision as it now exists, after U.P. Act No. 3 of 2002, reads as follows: 48. Revision and reference- (1) The Director of Consolidation may call for and examine the record of any case decided or proceedings taken by any subordinate authority for the purpose of satisfying himself as to the regularity of the proceedings; or as to the correctness, legality or propriety of any order [other than an interlocutory order] passed by such authority in the case or proceedings, may, after allowing the parties concerned an opportunity of being heard, make such order in the case or proceedings as he thinks fit. (2) Powers under sub-section (1) may be exercised by the Director of Consolidation also on a reference under sub-section (3). (3) Any authority subordinate to the Director of Consolidation may, after allowing the parties concerned an opportunity of being heard, refer the record of ay case or proceedings to the Director of Consolidation for action under sub-section (1). Explanation-[1] For the purposes of this section, Settlement Officers, Consolidation, Consolidation Officers, Assistant Consolidation Officers, Consolidator and Consolidation Lekhpals shall be subordinate to the Director of Consolidation. Explanation-[1] For the purposes of this section, Settlement Officers, Consolidation, Consolidation Officers, Assistant Consolidation Officers, Consolidator and Consolidation Lekhpals shall be subordinate to the Director of Consolidation. Explanation (2)-For the purposes of this section the expression 'interlocutory order' in relation to a case or proceeding, means such order deciding any matter arising in such case or proceedings or collateral there to as does not have the effect to finally disposing of such case or proceedings. Explanation (3)-The power under this section to examine the correctness, legality or propriety of any order includes the power to examine any finding, whether of fact or law, recorded by any subordinate authority, and also includes the power to reappreciate any oral or documentary evidence. 23. A perusal of Explanation (3) added to the Section 48 of the Act would show that it has been clarified that the power under Section 48 extends to examining the correctness, legality or propriety of any order, that includes the power to examine any finding, whether of fact or law, recorded by any subordinate authority, and also includes the power to reappreciate any oral or documentary evidence. To recapitulate the purpose of an explanation, an explanation may have multiple purposes; one of the purposes of the explanation is to convey the intention of the legislature, where during the course of application of law, some misgiving has arisen. The explanation in this kind of a situation is introduced to clarify what the legislative intent was. 24. The explanation aforesaid makes it explicit that there are no fetters on the jurisdiction of the Deputy Director of Consolidation to go into questions of fact or law, and for the purpose, to reappreciate oral and documentary evidence. When the decision of this Court in Ram Karon Shukla (supra) and Smt. Bechna (supra) were rendered, the aforesaid explanation was not there. This explanation, interestingly, has been made effective with retrospective effect, that is to say, with effect from 10.11.1980. The impugned order was passed by the Consolidation Officer on 14.8.1995, and the objections under Section 9A(2) by the petitioners were filed before the Consolidation Officer on 24.1.1991. As such, the third explanation added to Section 48 of the Act, that has been given retrospective effect from the year 1980, would squarely apply to the proceedings in hand. The impugned order was passed by the Consolidation Officer on 14.8.1995, and the objections under Section 9A(2) by the petitioners were filed before the Consolidation Officer on 24.1.1991. As such, the third explanation added to Section 48 of the Act, that has been given retrospective effect from the year 1980, would squarely apply to the proceedings in hand. Therefore, this Court must hold that there was no inhibition on the power of the Deputy Director of Consolidation to go into all questions of fact and law and recording findings of his own, after doing a wholesome review of evidence, both documentary and oral. Therefore, the contention of Sri M.C. Singh, learned counsel for the petitioner based on the limitation of the power under Section 48 of the Act, also does not stand to scrutiny. 25. On a consideration of the entire facts and circumstances on record this Court is of clear opinion that there is no such infirmity in the order impugned passed by the Deputy Director of Consolidation, dated 6.8.1997, as may call for interference under Article 226 of the Constitution. 26. In the result writ petition fails and is dismissed with costs. 28. Let a copy of this order be communicated to the Deputy Director of Consolidation, Bulandshahr, by the Office within a month.