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PYAREY LAL versus D.D.C. AND OTHERS

High Court of Judicature at Allahabad

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Pyarey Lal v. D.D.C. And Others - WRIT - B No. 9541 of 1980 [2007] RD-AH 11507 (9 July 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

AFR

Judgement Reserved on 08.5.2007

Judgement Delivered on 09.7.2007

Civil Misc. Writ Petition No. 9541 of 1980

Pearey Lal Versus Deputy Director of Consolidation, Bulandshahr and others.

Hon'ble S.U.Khan J

Heard learned counsel for the parties.

This writ petition is directed against the orders passed by Consolidation Officer (CO), Settlement Officer Consolidation (SOC) and Deputy Director of Consolidation (DDC). Revision before the DDC was registered as Revision No. 59 Pearey Lal Vs. Vinod Kumar and others and was dismissed by the DDC, Meerut on 29.7.1980.

The dispute relates to agricultural land left behind by Brahma Singh. On the death of Brahma Singh (who died unmarried) his real brother Gajendra Singh (original respondent No. 5) claimed the land in dispute on the basis of succession/ inheritance. Pearey Lal petitioner asserted that Gajendra Singh had executed an agreement for sale about the land in dispute in his favour after getting his (Gejendra Singh's) name mutated in revenue records and after obtaining permission for sale from SOC. Pearey Lal also filed suit for specific performance before the Civil Court against Gajendra Singh. In the said suit Vinod Kumar real son of Gajendra Singh filed impleadment application, which was opposed by Pearey Lal and Vinod Kumar who was minor aged about 6 or 7 years at that time claimed that Brahma Singh had firstly adopted him and secondly he had executed a Will in his favour. He filed application through Mahendra Singh his sister's husband. rejected by the Court. The Supreme Court in (AIR 2005 SC 2813 Kasturi Vs. Iyyam Perumal) has held that rival claimant to ownership is neither necessary nor proper party in a suit for specific performance of an agreement for sale. The impleadment application was rejected holding that neither Will nor adoption was proved. The suit for specific performance was afterwards decreed. In said suit, it was decided that Gajendra Singh had executed agreement for sale in favour of Pearey Lal. Before the civil suit was decreed proceedings had started before the consolidation courts and an application for staying proceedings of the suit till decision by the C.O was filed, which was rejected.

CO, SOC as well as DDC have held that adoption as well as Will was proved. If either of these two things stand proved, Vinod Kumar is entitled to get the property in dispute.

Learned counsel for the petitioner has argued that as after executing agreement for sale, Gajendra Singh had become dishonest hence, he put forward his minor son Vinod Kumar and falsely asserted that Brahma Singh had adopted Vinod Kumar and had also executed a Will in favour of Vinod Kumar.

It is correct that as Vinod Kumar was not party in the civil suit hence, findings recorded therein are not binding upon him.

However, it is the duty of the propounder of a Will to prove the genuineness of the Will. In order to prove the genuineness, surrounding circumstances will have to be explained and doubts about the Will will have to be removed. Mere proof of attestation is not sufficient. Genuineness is to be independently proved.

Supreme Court in H.V. Iyengar Vs. B.N Dhimma Jamma AIR 1959 SC 443, has held that if there are surrounding suspicious circumstances then they must be dispelled the propounder of the Will and the doubts, if any, regarding the Will must be cleared. The said authority has been followed in several other authorities of the Supreme Court including Surendra Pal Vs. Saraswati Arora AIR 1974 SC 1999, J.A. Lazarous Vs. A.J.Francis AIR 2006 SC 1895, P.Venkatamuni Vs. C.J.A Ram Singh AIR 2007 SC 311 and M.U.Joshi Vs. M.J.Rao AIR 2007 SC 614.

Will was stated to be executed on 1.9.1967. It is an unregistered Will. Its copy has been annexed alongwith supplementary affidavit filed by learned counsel for the petitioner which was sworn on 31.1.2005 (On page 37). In the said Will it is mentioned that the executant is aged about 48 years; that often he remains ill; that Vinod Kumar younger son of Gejendra Singh real brother of Brahma Singh is aged about 3 or 3 ½ year; and that Brahma Singh loves him and has adopted him also about 2 months before. Thereafter, it is mentioned that the Will is being given to Mahedra Singh brother in law (sister's husband) of Vinod Kumar. The reason for this unusual act, which has been mentioned in the Will itself, that the executant is not having good terms with his brother Gajendra Singh. It has further been stated that the Will is not being executed for the reasons that Vinod Kumar is adopted son of the executant. On pages 42 and 43 of the same supplementary affidavit statement of Smt Prakashi mother of Vinod Kumar given before C.O has been annexed. She stated that after Hawan she and her husband willingly gave Vinod Kumar in adoption and after taking Vinod Kumar in his lap, Brahma Singh said that since then Vinod Kumar became his son. The mother of Vinod Kumar no where stated that there were any differences in between Brahma Singh and Gajendra Singh. If there had been differences between the two brothers then there was no occasion for adoption or Will . Child of 3 or 3½ years is supposed to live with his parents and not with his unmarried uncle. There was absolutely no reason for mentioning in the Will that the Will was being given to Mahendra Singh, sister's husband of Vinod Kumar the legatee.

Moreover, the objections before CO were filed by Vinod Kumar through sister's husband Mahendra Singh. Mahendra Singh also filed application in the civil suit as guardian of Vinod Kumar. It was not explained any where as to why mutation application was not filed on the basis of adoption or Will after the death of Brahma Singh on behalf of Vinod Kumar. It has also not been explained that what was the reason for Gajendra Singh to go against the interest of his minor son after giving him in adoption to his brother Brahma Singh willingly. SOC in his judgement has mentioned that Gajendra Singh somewhere stated that he got his name mutated over the property left behind by his brother on the ground that he did not want to deprive his other sons from the property left behind by Brahma Singh. This was nothing but extremely lame excuse. If interest of other sons was paramount for Gajendra Singh then he would not have executed agreement for sale in favour of the petitioner. Moreover, this theory completely demolishes the allegation of adoption. If Gajendra Sing wanted all his sons to enjoy the property left behind by Brahma Singh then he would not have given Vinod Kumar one of his five or six sons in adoption to Brahma Singh. Regarding adoption no deed was filed. The only evidence was a photograph which according to the courts below showed that mother of Vinod Kumar was given him in the lap of Brahma Singh.

The courts below i.e CO, SOC and DDC did not say a single word about these highly suspicious circumstances. Only and only on the basis of evidence of writer of the Will and witness of the Will, they found the Will to be proved. The courts below did not draw the distinction between formal proof as required by section 68 of the Evidence Act and proof of genuineness of the Will. Gajendra Singh had executed an agreement for sale in favour of petitioner and thereafter he denied execution of the said agreement. The circumstance that in order to avoid the liability to execute the sale deed in pursuance of the agreement for sale, Gajendra Singh falsely alleged that he had no authority to execute the agreement for sale as Brahma Singh had adopted his infant son and a Will was also executed by Brahma Singh in his favour was taken up was not at all taken into consideration by the courts below. This was highly suspicious circumstance surrounding the Will. The courts below also completely ignored the fact that the mention in the Will deed about the fact that original Will was being handed over to Mahendra Singh, Sister's husband of the legatee Vinod Kumar was highly suspicious circumstance. In case Vinod Kumar had been adopted two months before execution of the Will by the consent of his father then in natural course Will should have been handed over to his father i.e. Gajendra Singh. Moreover, Mahendra Singh did not make any efforts for mutation of name of Vinod Kumar after the death of Brahma Singh. This was also highly suspicious circumstance. Mahendra Singh was quite vigilant in filing impleadment application in the civil suit and objection before the consolidation officer but kept silent immediately after the death of Brahma Singh and did not take any step for mutation of name of Vinod Kumar in the revenue records over the land left behind by Brahma Singh.

The above cluster of highly suspicious circumstances clearly disproved the Will. In any case in the absence of any satisfactory explanation regarding the above suspicious circumstances it can not be said that propounder of the Will proved the Will.

In this writ petition, the court on several dates seriously persuaded the parties to enter into compromise. It is admitted to both the parties that since before filing of this writ petition possession is of respondent Vinod Kumar who was given possession in pursuance of orders passed in proceedings under section 145 Cr.P.C. Both the parties also admitted that at present the valuation of the land in dispute must be about Rs.20 lacs. Learned counsel for the respondent Vinod Kumar offered an amount of Rs.10 Lacs in case the land was left with him by way of compromise. Learned counsel for the petitioner offered an amount of Rs.250000/- by way of compromise in lieu of possession of land in dispute.

In my opinion the judgements passed by all the three courts below are erroneous in law.

Accordingly writ petition is allowed. All the impugned orders are set-aside.

However, petitioner is directed to pay Rs.250000/- to respondent Vinod Kumar immediately after getting the possession of the land in dispute failing which he should be liable to pay interest @ 1.5% per month since the date of taking possession till actual payment. This payment is in addition to the profit which may have been earned by respondent Vinod Kumar from the land in dispute. It is clarified that till the date of this judgement respondent No.5 shall not be liable to pay any amount to the petitioner as mesne profit.

9.7.2007

SW/-


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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