VIRENDRA PRASAD Vs. D.D.C./ADM (F&R)

JUDGEMENT

(1.) HEARD Sri Umesh Singh, for the petitioners and Sri Shree Prakash Singh and Sri Girish Chand Sinha, for the contesting respondent -4. The writ petition has been filed against the order of Settlement Officer, Consolidation dated 21.8.1995, allowing the appeal filed by respondent -4 and directing that her name be also mutated over the land of Mohan as his daughter along with two other daughters and order of Deputy Director of Consolidation, dated 30.6.2014 dismissing the revision of the petitioners, against the aforesaid order, passed in title proceedings under U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act).

(2.) THE dispute relates to basic consolidation year khatas 381 and 382 of village Kishunpur Kabiraha, pargana Surhurpur, district Faizabad (now Am -bedkar Nagar), which were recorded in the name of Mohan and khata 99, which was recorded in the names of Gyan Das alias Chitaru and Mohan. At the time of partial, it has been informed that Mohan was dead and left behind him three daughters, namely, Smt. Dulari, Smt. Sarjoo Dei and Smt. Prabhu Dei (respondent -4) and they were his heirs. Smt. Sarjoo Dei and Smt. Dulari (now represented by the petitioners) filed an objection under section 9 -A of the Act, for recording their names as heirs of Mohan on the basis of Will deed dated 24.10.1979 executed by him. Smt. Prabhu Dei filed an objection for recording names of three daughter as an heirs of Mohan. The matter was contested between the parties and they adduced their evidence. Smt. Dulari and Smt. Sarjoo Dei were examined and they also examined Dukhchhor, who is one of the contesting witness of the Will dated 24.10.1979. On behalf of the contesting respondent Gyandas alias Chitaru was examined, who was power of attorney holder of Smt. Prabhu Dei, and the witness Dhaneshar was examined. Both the parties filed documentary evidence also in support of their cases. The Consolidation Officer, after hearing the parties by order dated 23.2.1993 held that the execution of the Will was proved by Dukhchhor, the attesting witness of the Will. As Mohan had executed the Will in favour of two daughters only as such Smt. Prabhu Dei has not inherited the property of Mohan. On these findings, the objection of Smt. Dulari and Smt. Sarjoo Dei was allowed the objection of Smt. Prabhu Dei was dismissed.

(3.) THE Counsel for the petitioners submits that Will dated 24.10.1979 is a registered document and so long as it is not cancelled by the Civil Court, the consolidation authorities have no right to ignore the Will as held by this Court in Phooley v. Anjeet and others, 2014 (32) LCD 1519. He submits that under section 68 of the Evidence Act, 1872 one of the attesting witnesses of the Will is required to be prove for its execution. The petitioners examined Dukhchhor, the attesting witness of the Will, who has proved its due execution. In such circumstances that the execution of the Will was proved it could not have been ignored as held by the Supreme Court in Daulat Ram and others v. Sodha and others, 2006 (24) LCD 1749 (SC). He further submits that at the most Will is a voidable documents and the consolidation authorities have no jurisdiction to ignore it as held in Gorakh Nath Dube v. Hari Narain Singh and others : 1973 AIR SC 2451. He also relied upon judgment of this Court in Jangi Singh and another v. Sri Raghubir Singh Chauhan and others, : 2004 (96) RD 607 (HC) in which, it has been held that uneven distribution of assets among children in the Will does not create any suspicious circumstance and one of the a daughters was deprived from inheritance would not be taken as suspicious circumstance as the Will is executed to overcome the natural order of succession. The Consolidation Officer was fully satisfied that the execution of Will was proved and the order of the Consolidation Officer was not liable to be set side by the appellate and the revisional Courts.