Arvind Kumar Singh and Another v. Deputy Director of Consolidation and 17 Others

Court No. - 48 Case :- WRIT - B No. - 2574 of 2023 Petitioner :- Arvind Kumar Singh And Another Respondent :- Deputy Director Of Consolidation And 17 Others Counsel for Petitioner :- Vineet Kumar Singh,Sr. Advocate Counsel for Respondent :- C.S.C.,Aqeel Ahmad,Ramesh Chandra,Satendra Kumar Singh,Suresh Chandra Varma Hon'ble Saurabh Shyam Shamshery,J.

¶1The present writ petition is arising out of consolidation proceedings where a registered Will was under question.

¶2Sri H.N. Singh, learned Senior Advocate assisted by Sri Pranjal Singh, learned counsel for petitioners, submits that a Will has to be proved according to law, i.e., by evidence of attesting witnesses and that it is not surrounded by any suspicious circumstances.

¶3Sri Ramesh Chandra, learned counsel appearing for contesting-respondents, has not disputed the above submission. However, he submits that Settlement Officer of Consolidation has considered the statements of attesting witnesses and held that Will was proved. He read out the following contents of the order passed by Settlement Officer of Consolidation: "उ्ሹ रजजिस्टरर वससीयत ममु० कमुन्तता नने अपनसी लड़ककी ततलकरताजिसी कने पमुतኘ᭖ भगवतान व अशशोक कमुमतार पमुतगण तवश्वनताथ जसिሺह कशो जलखता हहै। कमुन्तता कता बबृजिभभूषण ककी लड़ककी हशोनता तथता उनककी लड़ककी ततलकरताजिसी कता हशोनता तनतवरवताद हहै, जिहैसतातक वतादसी शसी भगवतान एविሺ तवपकसी रताजिनेन््ቖ ्ቚसताद कने बयतानኘ᭖ सने स्प्ቖ हहै। यह वससीयत वतादसी शसी भगवतान कने बयतान 22.06.2013, 26.06.2013, 03.07.2013 तथता हताजसए गवताह समरबहतादमुर जसिሺह कने बयतान तदनतािሺक 03.07.2004, 25.08.2009, व 15.06.2013 सने सत्यतातपत हहै। जिहतााሺ तक वतादसी शसी भगवतान कने बयतान एविሺ समरबहतादमुर जसिሺह कने बयतानशो ककी उ्ቈरदतातता ककी तरफ सने तकनसीककी व्यताख्यता कता ्ቚश्न हहै तशो , गतामसीण कताश्तकतारኘ᭖ कने कथनኘ᭖ ककी बहहत गम्भसीर तकनसीककी व्यताख्यता नहीሻ ककी जितानसी चतातहए और ममौजखक अतभकथनኘ᭖ ककी गम्भसीर व्यताख्यता करतने हहए अलग अथर तनकताल कर सतारभभूत न्यताय ' कने तवरू्ቍ नहीሻ जितायता जिता सकतता। अततः उ्ሹ बयतानኘ᭖ कने तकनसीककी तनवरचन कने आधतार पर अवर न्यतायतालय तथता तवपकसीगण दतारता उ्ሹ पिሺजिसीकबृत वससीयत कशो सिሺतदग्ध/अतवश्वसनसीय मतान लनेनने कता तनष्कषर अनमुपयमु्ሹ व अततातकरक हहै। इसकने अलतावता अपसीलतान्ट कने पक मम तनष्पतातदत पिሺजिसीकबृत वससीयत कशो सकम न्यतायतालय दतारता मिሺसभूख करतानने कता ्ቚयतास भसी तवपकसीगण दतारता नहीሻ तकयता गयता। अततः अपसील-मनेमኘ᭖ मम ्ቚश्नगतत् आदनेश तदनतािሺक 15.07.2013 अनमुतचत, अतवजधक व अतकरसिሺगत हहै।"

¶4Learned counsel for respondents further submits that Deputy Director of Consolidation has upheld the aforesaid findings.

¶5Heard learned counsel for parties and perused the material available on record.

¶6I have carefully perused the impugned orders. For reference the order passed by Revisional Authority is mentioned hereinafter: "आजि पततावलसी पनेश हहई। पततावलसी पर उपलब्ध सताቌኚय एविሺ उभय पक दतारता ककी गयसी बहस कता अनमुशसीलन तकयता गयता। यह तनगरतानसी चकबन्दसी अजधकतारसी कने आदनेश तदनतािሺक 15.07.2013 एविሺ बन्दशोबस्त अजधकतारसी चकबन्दसी कने आदनेश तदनतािሺक

26.09.2017 कने तवरू्ቍ तदनतािሺक 10.10.2017 कशो अन्दर म्यताद ्ቚस्तमुत ककी गयसी हहै। चकबन्दसी अजधकतारसी दतारता पिሺजिसीकबृत वससीयत कने आधतार पर आदनेश न करतने हहए, वरतासत कने आधतार पर आदनेश तदनतािሺक 15.07.2013 पताररत तकयता गयता, जजिसकने तवरू्ቍ बन्दशोबस्त अजधकतारसी चकबन्दसी कने न्यतायतालय मम अपसील ्ቚस्तमुत ककी गयसी। बन्दशोबस्त अजधकतारसी चकबन्दसी दतारता यह पतायता गयता तक ्ቚततपकसी कने पक मम मभूल कता श् तकता र‌दता रता ‌पनሺजि ली ककृ त‌वसली यत‌वदनता नሺक‌09.09.1992oकदे ‌आधता र‌पर‌दता जखल खता ररजि ‌आददेश‌पता ररत‌वकयता ‌गयता ‌एवनሺ‌चकबन् दली ‌अजधकता रली ‌कता ‌आददेश‌वदनता नሺक

15.07.2013oकको ‌वनरस् त‌कर‌वदयता ‌गयता ।‌धता रता ‌171oव‌72oआवद‌कदे ‌पቚ ता ववधता न‌तब लता गपू‌हको तदे‌हहै , oजि ब‌कता श् तकता र‌वनवरसली यतली ‌मरता ‌हको ।‌धता रता ‌ 171 oआवद‌मम‌वनम् न शब् दता वलली ‌पቚ यकሹतु ‌ककी ‌गयली ‌ह।है ‌यवद‌कको ई‌वनवरसली यतली ‌भपूवमधर /असता मली ‌ककी ‌मकृत् य‌तु हको जि ता तली ‌ह।है ‌उकሹ ‌शब् दता वलली ‌सदे‌स् वतयः ‌स् पषቖ ‌ह‌है वक‌धता रता ‌ 171oसदे‌लदेकर‌धता रता ‌ 175 जि देड०ए०एक् ट‌कदे ‌पቚ ता ववधता नो᭖ ‌कदे ‌अन् तगरत‌मकृतक‌वता ररसो᭖ ‌कदे ‌पक‌मम‌दता जखल‌खता ररजि ककी ‌कता यरवता हली ‌तब‌ककी ‌जि ता यदेगली ,oजि ब‌कता श् तकता र‌वनवरसली यतली ‌मर‌दे हको ‌(वबनता ‌वसली यत)। पቚ स् ततु ‌पቚ करण‌मम‌चपूनሺवक‌मपूल‌कता श् तकता र‌दता रता ‌पቚ वतपकली गण‌कदे ‌पक‌मम‌पनሺजि ली ककृ त वसली यत‌वनष् पता वदत‌ककी ‌गयली ‌थली ,oइसजलए‌इसमम‌उतቈ रता धली कता र‌कदे ‌पቚ ता ववधता न‌लता गपू नहहሻ ‌हको गम‌एवनሺ‌पनሺजि ली ककृ त‌वसली यत‌कदे ‌आधता र‌पर‌दता जखल‌खता ररजि ‌ककी ‌कता यरवता हली ‌ककी जि ता यदेगली ।‌चकबन् दली ‌अजधकता रली ‌दता रता ‌ववजध‌कदे ‌ववरू दቍ ‌रजजि स् टर‌वसली यत‌अमता न् य‌करतदे ह र महए‌धता रता ‌ 171 oआवद‌कदे ‌अन् तगत‌वनगरता नली कतता र‌कदे ‌पक‌म‌आददेश‌वदनता नሺक

15.07.2013 oपता ररत‌वकयता ‌गयता , oजि को ‌स् थता वपत‌ववजध‌व् यवस् थता ‌कदे ‌ववरू दቍ ‌ह।है बन् दको बस् त‌अजधकता रली ‌चकबन् दली ‌दता रता ‌उकሹ ‌ववजध‌ववरू दቍ ‌आददेश‌कको ‌वनरस् त‌करतदे हहए‌पनሺजि ली ककृ त‌वसली यत‌कदे ‌आधता र‌पर‌आददेश‌पता ररत‌वकयता ‌गयता ‌ह।है ‌जि को ‌सवरथता ‌ववजध सम् मत‌ह,है oसस् थर‌रहनदे‌यको ग् य‌ह।है ‌वनगरता नली ‌वनरता धता र‌हको नदे‌कदे ‌कता रण‌वनरस् त‌हको नदे‌यको ग् य ह।है आददेश उपरको कሹ ‌वनणरय‌कदे ‌आधता र‌वनगरता नली ‌कतता र‌ककी ‌वनगरता नली ‌वनरता धता र‌हको नदे‌कदे ‌कता रण वनरस् त‌ककी ‌जि ता तली ‌ह।है ‌पतता वलली ‌बता द‌आवश् यक‌कता यरवता हली ‌दता जखल‌दफ् तर‌हको ।"

¶7This Court has considered the issue as to how a Will has to be proved in Chhatrapal Vs. D.D.C. & Ors, Neutral Citation No.2023:AHC:172664, relevant paras 27, 33, 34 and 35 thereof are mentioned hereinafter: "27. The revision petition filed by petitioner and his two brothers was rejected by a detailed order dated 12.09.2019 and above referred findings of Appellate Authority were confirmed as well as Revisional Authority has taken note of certain ambiguity and contradictions in the testimonies of witnesses whether 'will' was hand written or typed as well as whether it was registered or not. In the above background before considering the rival submission, it would be apposite to refer few paragraphs of judgment passed by Supreme Court in the case of Raj Kumari and Others Vs. Surinder Pal Sharma, (2021) 14 SCC 500 where issue of 'how a 'will' be proved', was considered in detail, which are reproduced hereinafter :- "14. Sections 68 and 71 of the Evidence Act, which relate to proof of documents required by law to be attested, read as under: "68. Proof of execution of document required by law to be attested.— If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied. * * *

¶71Proof when attesting witness denies the execution.—If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence." xxx

¶16After referring to H. Venkatachala Iyengar (supra), this Court in Jaswant Kaur (supra) had laid down the following propositions of law: "10…..(1) Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.

(2) Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.

(3) Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.

(4) Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.

(5) It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.

(6) If a caveator alleges fraud, undue influence, coercion, etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter." "33. In order to prove a 'will', the evidence of attesting witnesses and its scriber are relevant. It would be relevant to note here that at relevant time registration of a 'will' was not an essential requirement and in present case as referred above both attesting witnesses were examined and witness Leeladhar and Ram Singh have specifically stated it was executed in their presence and testator and scriber were also present, however, as referred above by Revisional Authority and it would be clear from perusal of statements which are part of supplementary affidavit filed before this Court, that they mentioned the 'will' was in handwriting, whereas undisputedly, contents of 'will' were typed by typewriter, as clearly evident from the photocopy i.e. in Hindi typing on a non-judicial paper and was notarized also and at bottom it was mentioned that being drafted by and typed by Jaidev Gargaon, Advocate, therefore, it has created a doubt that whether witnesses were present, when 'will' was executed and signed by the testator.

¶34There is yet another circumstance which also creates suspicion about truthfulness of witnesses, since witness Leeladhar has stated that 'will' was registered and all persons have appeared before Registrar, whereas undisputedly alleged 'will' was never registered but it was only notarized though the other witness Ram Singh has stated that it was not registered. The other witness Jaidev Gargaon, Advocate has stated that 'will' was scribed by him by pen having new nip but as referred above it was a typed document though he has stated that it was not registered, therefore, it also appears that said advocate was not truthful before authority.

¶35In the background of above doubtful witnesses account, the consideration of other circumstances would become more relevant and for that findings returned by Appellate Court and Revisional Court referred above, become crucial for consideration whether the 'will' was proved, or not especially when alleged 'will' was executed in exclusion of children of testator. In order to consider above suspicious circumstances surrounded the 'will', the paragraph number 25 of a recent judgment passed by Supreme Court in case of Swarnlatha and others versus Kalavati and others, 2022 SCC online 381 would be relevant that:- "25. The law relating to suspicious circumstances surrounding the execution of a Will is already well-settled and it needs no reiteration. It is enough if we make a reference to one of the recent decisions of this Court in Kavita Kanwar v. Mrs. Pamela Mehta, AIR 2020 SC 544 where this Court referred to almost all previous decisions right from H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443. But cases in which a suspicion is created are essentially those where either the signature of the testator is disputed or the mental capacity of the testator is questioned. This can be seen from the fact that almost all previous decisions of this Court referred to in Kavita Kanwar (supra) list out circumstances, which in the context of the lack of sound and disposing state of mind of the testator, became suspicious circumstances. In the matter of appreciating the genuineness of execution of a Will, there is no place for the Court to see whether the distribution made by the testator was fair and equitable to all of his children. The Court does not apply Article 14 to dispositions under a Will."

¶8From bare reading of reasons given by Deputy Director of Consolidation, it is evident that on the face of it, it is in the teeth of above referred Chhatrapal (supra). The Revisional Authority has not even referred the provisions of law and evidence to prove the Will specifically when Appellate Authority has interfered with order passed by Consolidation Officer, that will was surrounded by suspicious circumstances and was not proved in accordance with law. Therefore, the order passed by Deputy Director of Consolidation could not sustain.

¶9At this stage, learned counsel for parties submit that the matter may be remitted to Deputy Director of Consolidation, who has wide power under Section 48 of U.P. Consolidation of Holdings Act, 1953.

¶10In view of above, order dated 20.06.2023 is hereby set aside and matter is remitted back to Revisional Authority to pass a fresh order. Revisional Authority is directed to consider the matter in accordance with law as well as taking note of judgment passed in Chhatrapal (supra) and conclude the proceedings within a period of six months from today, if there is no legal impediment.

¶11With aforesaid direction/ observation, the writ petition is disposed of. Order Date :- 6.12.2023 AK High Court of Judicature at Allahabad