SHIV CHARAN LAL Vs. RAMWATI

JUDGEMENT

(1.) This is a reference under Sec. 218 of the U.P. Land Revenue Act made by the Additional Commissioner, Agra Division, in a mutation case. Through his referral order dated 28-3-1980, he has recommended that the order of the appellate court be set aside, and mutation made in the name of the revisionist, which means substantially restoring the order of the trial court, except that the present revisionist is a minor and son of the original person in whose name the trial court had already ordered mutation.

(2.) The brief facts of this case, are that on the death of the recorded tenure-holder, Pyarey Lal, mutation was claimed by Sohan Lal, the father of the present revisionist, on the basis of a will, and by Smt. Ramwati as the widow of the deceased, The trial court upheld the claim of the will-holder but in appeal the S.D.O. found suspicious circumstances surrounding the will and he ordered mutation in favour of Smt. Ramwati. The Addl. Commissioner, on the other hand, has disagreed with the reasoning and conclusion of the appellate court and has made his recommendation.

(3.) The Additional Commissioner in his referral order has set forth with great clarity the two issues dominating this case-(1) Whether the will was genuinely executed ; if this is answered in the affirmative, the matter rests there, and (2) in case the will is found not genuine, whether the respondent Smt. Ramwati was or was not the legally wedded wife of the deceased, as her status has been challenged by the other side. The trial court had accepted the will and had, besides, held that the respondent was not the legally wedded wife of deceased. The appellate court, on the other hand, negatived both these findings. The Addl. Commissioner has found in favour of the will but he has, in any case, answered the second question and found that Smt. Ramwati was the widow of the deceased, even though in view of the finding about the will, this makes no difference to his conclusion. The main question, therefore, is whether the will was genuine and had stood proved. It may be stated here that the original will was not produced and the version is that it was lost from the custody of the Lekhpal, though there is no clear finding at any level. A copy of the will was produced, the Sub-Registrar was called in evidence and one of the marginal witnesses was also examined. The appellate court found that the Sub-Registrar could not say of his own personal knowledge whether the will was executed by the deceased, as he was not known to the Sub-Registrar. It also transpires that the last tenure-holder, Pyarey Lal, did not die a natural death but was murdered. The beneficiary under the will and the marginal witnesses were accused in that criminal case. While moving for their bail, both the marginal witnesses have denied their part in witnessing the will. One of them Jagdish Prasad, stated before the criminal court on affidavit that he never signed as a marginal witness to any will made by the deceased. The other marginal witness Yad Ram gave his version that though he put his thumb impression, he was misled in doing so and at the time of execution of the will the deceased was not present and somebody else impersonated the deceased. Both these statements have been brought on record by means of certified copies. The S.D.O. found it difficult to believe in the genuineness of the will, in the face of these circumstances and reversing the order of the trial court, he ordered mutation in the name of the widow. The Addl. Commissioner, dealing with the averments made before the criminal courts, has reasoned that in order to save themselves from criminal proceedings, people may depose anything, and that in any case their deposition in criminal proceedings does not bind the revenue courts. The question of the loss of the original testamentary document has not been squarely dealt with by any of the court. The Addl. Commissioner has, in addition, interpreted the guide-line given in Appendix X, Para 10 of the Revenue Court Manual, to imply that a registered will, if produced by any of the parties, should be acted upon by the revenue courts. As regards this latter point, it has been repeatedly emphasised by me that the guide-lines in the Revenue Court Manual do not prohibit the revenue courts from investigating and satisfying themselves whether a will has, in fact, been executed by the testator. The only thing prohibited in mutation proceedings, as a precautionary measure is going into the complicated legal question about the competence of the testator, and not about the fact of the execution of the will. To resume, based on these arguments the Addl. Commissioner has made the present recommendation.