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MANGAL SINGH versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Mangal Singh v. State Of U.P. & Others - WRIT - B No. 37900 of 2007 [2007] RD-AH 14061 (16 August 2007)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Civil Misc. Writ Petition No. 37900 of 2007

Mangal Singh      

 Versus    

State of U. P. and others

Hon'ble Krishna Murari, J.

Heard Sri Sushil Kumar Sharma, learned counsel for the petitioner and Sri M. N. Singh appearing for the contesting respondent no. 5.

Challenge in this petition has been made to the order dated 28.6.2007 passed by the Deputy Director of Consolidation allowing the revision filed by respondent no. 5 and remanding the case back to the Consolidation Officer.

Dispute relates to land comprised in Chak No. 239 which was recorded in the name of one Smt. Rehti Devi. On her death three sets of objections were filed claiming mutation. First objection was filed by petitioner, husband of the deceased, claiming mutation on the ground of inheritance. Another objection was filed by Junior High School Kapoori Govindnagar on the ground of alleged ''Will' said to have been executed in its favour by deceased tenure holder; another objection was filed by respondent no. 5 also on the basis of ''Will' in her favour.

In so far as objection filed by Junior High School Kapoori Govindnagar is concerned the same was not prosecuted and was dismissed which order has become final and the same is not in issue in this writ petition.

Consolidation Officer vide order dated 6.11.2000 dismissed the claim of respondent no. 5 whereas that of petitioner was allowed. He held the ''Will' to be suspicious  on the ground that Smt. Rehti Devi and respondent no. 5 were resident of different villages. ''Will' was not registered even though on the date of execution i.e. 16.7.1998 there was no public holiday. He also found some contradiction in the statement of marginal witnesses of the ''Will' and the same was also made the basis for not accepting the ''Will'. Appeal filed by respondent no. 5 was dismissed by the Settlement Officer Consolidation vide order dated 17.7.2006 also on the same ground. Settlement Officer Consolidation further discarded the ''Will' on the ground that when the relations between Smt. Rehti Devi and the petitioner, her husband, were cordial then there was no reason or occasion for her to execute ''Will' of the property in favour of some body else and thus also ''Will' appears to be surrounded by suspicious circumstances. Deputy Director of Consolidation finding that both the courts below have not given any cogent reasons for discarding the ''Will' and have also not analysed the evidence in proper manner allowed the revision and remanded the case back to the Consolidation Officer for fresh decision.

It has been urged by the learned counsel for the petitioner that once the Consolidation Officer and Settlement Officer Consolidation found that respondent no. 5 failed to prove the ''Will' in accordance with law, her claim was rightly rejected and there was no reason for the Deputy Director of Consolidation to have remanded back the matter. It has further been urged that it was not mentioned in the ''Will' that the executant was not having cordial relation with her husband and thus there was no occasion for her to execute the ''Will' and disinherit her husband and the courts below rightly rejected the ''Will' on the said ground.

In reply, it has been contended that the ''Will' was held to be surrounded by suspicious circumstances by the Consolidation Officer as well as Settlement Officer Consolidation merely on surmises and conjectures. It has further been contended that some minor contradiction in the statement of marginal witness of the ''Will' cannot constitute a good ground to reject the same.

I have considered the arguments advanced by the learned counsel for the parties and perused the record.

Consolidation Officer rejected the ''Will' mainly on the ground that Smt. Rehti Devi and respondent no. 5 are resident of two different villages and there was no reason for Smt. Rehti Devi to execute the ''Will' in the house of some body else rather than her own house and there was no reason for not getting the ''Will' registered even though the date on which it was executed was not a public holiday. He also noted some minor contradiction in the statement of witnesses with regard to the time of execution of the ''Will'. One of the witness  has stated that the ''Will' was executed at 6 O' clock in the evening while the other witness has stated that the ''Will' was executed at 4 O' clock in the evening. He has  further held that it was mentioned in the ''Will' that was being executed in favour of respondent no. 5 because she has been looking after the testator  but that was not possible because both are resident of different villages. The aforesaid findings of the Consolidation Officer were confirmed by the Settlement Officer Consolidation in appeal. He further discarded the ''Will' also on the ground that there was no material on record to indicate that relations between the testator of the ''Will' and her husband were not cordial as such there was no reason to disinherit her and execute ''Will' in favour of any body else.

It is clear that findings of both the Consolidation Officer as well as Settlement Officer Consolidation that ''Will' is surrounded by suspicious circumstances is based on surmises and conjectures. Without there being any evidence on record findings with regard to suspicious circumstances have been imagined by the authorities.

Deputy Director of Consolidation found that Smt. Rehti Devi was issueless and ''Will' was executed in favour of daughter-in-law of the husband's real brother who cannot be said to be a rank outsider and the evidence brought on record to prove and establish ''Will' has not been considered in proper perspective by both the authorities and remanded the case back for reconsideration.

In the facts and circumstances, the matter was rightly remanded back by the Deputy Director of Consolidation as both the Consolidation Officer and Settlement Officer Consolidation have failed to analyse  the evidence and their judgments are based on surmises and conjectures and thus, there is no ground to interfere in the impugned order.

Writ petition accordingly fails and is dismissed summarily.

16.8.2007.


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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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