RAMASHRAYA Vs. D D C

JUDGEMENT

(1.) THE counsel for the petitioner is permitted to amend the relief clause, challenging the orders of Consolidation Officer and Settlement Officer, Consolidation. Heard Sri Dhirendra Bahadur Singh, counsel for the petitioner. The writ petition has been filed against the order of the Consolidation Officer dated 29.5.1989, the Settlement Officer, Consolidation dated 1.11.1991 and the Deputy Director of Consolidation dated 30.7.2013 passed in the proceeding under Section 12 of U.P. Consolidation of Holdings Act, 1953.

(2.) THE dispute related to the properties of Dinanath i.e. Chak no.487, village Tajopur, Tappa Pardaha, Pargana Muhammedabad Gohana, district Mau which was carved out in the name of Dinanath. On the death of Diananath Smt. Dhanwati Devi and Smt. Janaki Devi filed separate applications for mutation of their names as heirs of Dinananath. The claim of Dhanwati Devi was based on inheritance being widow of Dinananth while the claim of Smt.Janaki Devi was based on a registered will dated 6.10.1975 executed by Dinanath. The matter was consolidated and decided by the Consolidation Officer who by order dated 29.5.1989 found that due execution of the will dated 6.10.1975 by Dinanath was proved by the attesting witness Nand Kishor. He further found that on the basis of will the name of Smt. Janaki Devi was mutated over the properties of other villages and which order has not been challenged by Smt. Dhanwati Devi. It has further been found that Smt. Dhanwati Devi was the first wife of Dinanath and was issueless while from Smt. Janaki Devi there was a daughter and in such circumstances by the will right to obtain entire pension has been given to Smt. Dhanwati Devi and right to property has been given to Smt. Janaki Devi. In this way the testator had made provision for maintenance of first wife also and the will appears to be genuine and not a suspicious will. On these findings the application of Smt. Janaki Devi was allowed and her name was directed to be mutated over the land in dispute. The petitioner filed an appeal from the aforesaid order which has been dismissed by the Assistant Settlement Officer, Consolidation by order dated 01.11.1991. The order of the Assistant Settlement Officer, Consolidation has been challenged in revision which was dismissed by the order dated 30.7.2013. Hence this writ petition.

(3.) THE question which is being raised in the argument was relevant to be asked before the attested witness who was the appropriate person to explain the situation. However, a perusal of the order of the Consolidation Officer shows that Dinanath was hospitalised on 13.9.1975 and the will was executed on 6.10.1975 and Dinanath died on 21.11.1975. Thus it is apparent that Dinanath was in sick condition and instead of signing the will, he affixed thumb impression on it. Therefore, the relevant question was required to be put before the attesting witness who was in a position to explain the situation. Due execution has been proved by the attesting witness, genuineness of thumb impression on the will was not challenged. In such circumstances only for the reason that thumb impressions have been affixed on the will, instead of signature, the will cannot be ignored.