High Court of Judicature at Allahabad
Case Law Search
Prem Prakash v. Dy. Director Of Consolidation, Ballia & Others - WRIT - B No. 13405 of 2006  RD-AH 5426 (7 March 2006)
Court No. 28.
CIVIL MISC.WRIT PETITON NO. 13405 OF 2006
Deputy Director of Consolidation and others
Hon'ble Krishna Murari, J.
Heard learned counsel for the petitioner and Sri Dhirendra Bahadur Singh for the contesting respondent no. 3.
The petitioner and respondents belong to the same family and their pedigree is as under.
................................................. ....... Sughari
/ / / / ( married daughter )
Rameshwar Vijay Udai Hriday
Ram Prakash. /............................../
Om Prakash Phannu Rai
There is no dispute about the fact that Bhirgu had two wives. Rameshwar, father of the petitioner was born from the first wife and Vijaya Narain, Udai Narain and Hridaya Narain were born from the second wife.
On the death of Singhasan dispute arose between the parties with regard to the inheritance of his share. Rameshwar, the father of the present petitioner moved an application under Section 12 of the U.P. Consolidation of Holdings Act ( for short the Act ) for mutation of his name along with his three brothers on the basis of a will dated 21.1.1986 alleged to have been executed by deceased Singhasan giving equal share to all four sons of Bhirgu. Another application was moved by the contesting respondent for mutation of their names alone excluding Rameshwar. Their claim was also based on a will alleged to have been executed by the deceased Singhasan in their favour. The will produced by Rameshwar dated 21.1.1986 was unregistered whereas will produced by contesting respondents dated 22.2.1986 was a registered document. There was a dispute between the parties about the date of death of Singhasan as well.
Initially the date of death of Singhasan was recorded in the family register as 1.2.1986 by order dated 1.7.1987 of Assistant Development Officer ( Panchayat ). The said entry was set aside in pursuance to another order dated 18.7.1990 passed by Assistant Development Officer ( Panchayat ) and instead 27.8.1986 was entered. This subsequent order was again set aside vide order dated 23.7.1990, and the date of death was restored as 1.2.1986.
The Consolidation Officer consolidated the two objections and vide order dated 24.7.1993 accepted the unregistered will dated 21.1.1986 and directed that name of all four legatees of the said will be mutated in place of deceased Singhasan. The registered will dated 22.2.1986 in favour of contesting respondent was disbelieved and their objection was rejected. Feeling aggrieved the contesting respondents preferred an appeal. The appellate authority vide order dated 15.12.2005 allowed the appeal and remanded the case back to Consolidation Officer. The revision filed by the petitioner challenging the appellate order was dismissed by the Deputy Director of Consolidation on 30.1.1986.
The Consolidation Officer failed to record any specific finding about the date of death of Singhasan. He has only stated that date of death is not clear and is disputed. Both the wills were proved by producing the attesting witnesses. However, the Consolidation Officer disbelieved the will produced by the answering respondents mainly on two grounds, firstly, the will does not contain any reference about the daughter of Singhasan and secondly, only one attesting witness was produced in evidence. The will produced by the petitioner was given more credence by the Consolidation Officer simply on the ground that both the attesting witnesses were produced to prove the said will and further the will contained a reference of the daughter of Singhasan. The Consolidation Officer further held that since there is no dispute about the genuineity of the two wills and if the will produced by the answering respondent was not there all the four brothers would have inherited the shares of deceased Singhansan in accordance with the provision of Section 171 of the U.P.Z.A.& L.R. Act as such the will produced by the petitioner giving right to all four brothers appears to be more genuine.
From the perusal of the judgment of Consolidation Officer it is clear that he has not returned any specific finding either with regard to the date of death of Singhasan or as to the genuineness of either of the two wills. He simply accepted the will produced by the father of the petitioner as more genuine for the reason mentioned above.
The Settlement Officer Consolidation held that the Consolidation Officer has wrongly accepted an unregistered will against a registered will mainly on the ground that the two both marginal witnesses were not produced to prove the said will and whereas only one marginal witnesses of registered will was produced to prove the same. He remanded the case back to the Consolidation Officer to reconsider the validity and genuinity of both the will in accordance with law. The Deputy Director of Consolidation confirmed the finding recorded by the Settlement Officer Consolidation and dismissed the revision.
In my opinion the Consolidation Officer wrongly accepted the unregistered will produced by the father of the petitioner only on the ground that same was proved by the two marginal witnesses and discarded other as only one marginal witness was produced to prove the same. It is well settled that the document can be proved by production of only one marginal witness and a document cannot be rejected or disbelieved merely on the ground that both the marginal witnesses have not been produced to prove the said document. In my opinion no illegality has been committed by the Settlement Officer Consolidation in remanding the case back to the Consolidation Officer to reconsider the genuinity and validity of both the wills in accordance with law and the revision filed challenging the appellate order has also been dismissed by the Deputy Director of Consolidation
The impugned orders do not suffer from any infirmity requiring any interference by this court. The writ petition accordingly stands dismissed.
No order as to costs.
Double Click on any word for its dictionary meaning or to get reference material on it.