IMRAT JAHANS Vs. VIIITH ADDL DISTRICT JUDGE BAREILLY

JUDGEMENT

(1.) The deceased plaintiff had instituted a suit being suit No. 716 of 1989 against Smt- Arais Begum defendant No. 1 and Sagir Ahmad. son-in-law of Smt. Arais Begum. On the death of the plaintiff, the petitioners, claiming to be the daughters, sought to substitute themselves in place and stead of the deceased plaintiff on the ground that a will was executed by the deceased plaintiff on 16.5.91. On the other hand, the said Smt. Arais Begum claims to be substituted in place and stead of deceased plaintiff on the ground that she is the only daughter-in-law of the deceased plaintiff and therefore she has the right to substitute under Section 171 of the U. P. Zamindari Abolition and Land Reforms Act (hereinafter called as the Act).

(2.) The learned trial court by an order dated 2.9.96 allowed the application of the petitioners. Upon revision being moved by the respondents, the revisional court by an order dated 28.3.97 passed in CM! Revision No. 136 of 1996 reversed the said order and allowed the application of said Smt. Arais Begum to be substituted in place and stead of the plaintiff. It is against this order, the present writ petition has been moved.

(3.) Learned counsel for the petitioner Shri Rameshwar Prasad Agarwal, contends that in view of execution of will by the bhumidhar by reason of Section 169 of the Act the petitioners are the heirs of the deceased plaintiff irrespective of the order of succession provided in Section 171 of the Act, and, therefore they are entitled to be substituted in place and stead of plaintiff. He further contends that since the will has been executed, therefore, the right claimed by Smt. Arais Begum under Section 171 of the Act stands superseded, therefore, the revisional order cannot be sustained and is liable to be quashed.