JAGDISH Vs. DISTRICT JUDGE GORAKHPUR

JUDGEMENT

(1.) The order dated 3rd July, 1999 passed by the learned District Judge, Gorakhpur passed in Misc. Appeal No. 6 of 1999 reversing the order dated 21st December, 1998 passed by the learned Civil Judge. Junior Division in Original Suit No. 314 of 1981 has since been challenged in the writ petition under Article 227 of the Constitution of India.

(2.) Mr. S. S. Tripathi, learned counsel for the petitioner contends that the suit was brought by one Smt. Brij Raji. On the death of Brij Raji, her daughter Smt. Shanti Devi was substituted as heir within the meaning of Section 171 of the U. P. Zamindari Abolition & Land Reforms Act, 1950. Thereafter, the said Shanti Devi died. The husband had filed an application for substitution. The learned trial court dismissed the said application on the ground that the husband was not her heir in view of Section 172 of the said Act, In support of the claim, the husband produced a registered Will executed by Smt. Brij Raji. Mr. Tripathi contended that there was no whisper about the Will when Smt. Shanti Devi was substituted on the death of Brij Raji. The Will has been brought subsequently by the husband, therefore, there is every likelihood of the Will being suspicious and ingenulne, therefore, the right claimed by the husband under Section 174 of the Act cannot be allowed to be a ground for substitution of the husband in the proceedings. Therefore, the learned trial court had rightly rejected the application by an order dated 21st December. 1998. The revisional court however, had overlooked the proposition of Section 172 of the said Act. It had committed an illegality and irregularity in exercise of its Jurisdiction in overlooking the said provision and relied upon Section 174 of the said Act. Therefore, the order dated 3rd July, 1999 is liable to be set aside.

(3.) I have heard Shri S. S. Tripathi, learned counsel for the petitioner at length.