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Prem Prakash v. Dy. Director Of Consolidation, Ballia & Others - WRIT - B No. 13405 of 2006 [2006] RD-AH 5426 (7 March 2006)


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Court No. 28.


Prem Prakash


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.




          / /

Bhrigu          Singhasan

/         /

................................................. .......                            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.




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