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Ram Dularey v. Dy. Director Of Consolidation, Allahabad & Others - WRIT - B No. 19916 of 2007 [2007] RD-AH 7231 (19 April 2007)


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Court No.5

Civil Misc. Writ Petition No. 19916 of 2007

Ram Dularey                    ......... Petitioner


Deputy Director of Consolidation,

Allahabad and others      ..............  Respondents


Hon'ble Janardan Sahai, J

In the basic year Mahadeo was recorded over the disputed land. The petitioner filed objections under Section 9 of the U.P. Consolidation of Holdings Act claiming succession to his share on the basis of an unregistered will dated 16.6.1964. The petitioner Ram Dularey and  respondent nos. 4 and 5 Gauri Shankar and Sada Dularey  the contesting respondents are brothers and they are sons of Bachole brother of Mahadeo. The Consolidation Officer dismissed the objections of the petitioner for sole tenancy rights and found that respondents had  co-tenancy rights on the basis of inheretance. The appeal of the petitioner was dismissed by the Settlement Officer consolidation. The revision  filed by the petitioner has also been dismissed by the Deputy Director of Consolidation.

I have heard Sri Radhey Shyam, counsel for the petitioner  and Sri Shyam Lal Yadav for the respondent nos. 4 and 5.  The Consolidation authorities have given several grounds for not relying upon the will. Although the unregistered will purports  to be of the year 1964, the claim on the basis of  the will was made for the first time on start of consolidation operation in the year 1990. No application for mutation on the basis of the will was earlier filed by the petitioner. It has also been found that there were suspicious circumstances surrounding the will viz., that the attesting witness is brother of 'sadu' of the petitioner's son and it has also been found that although the petitioner and the contesting respondents  are brothers and had the same relationship of being nephews of the deceased, no reason has been given for excluding them. These findings are finding of fact.

Sri Radhy Shyam relied upon a decision of this Court in Man Singh Vs. Dharam Singh and others [2006 (101) RD 15] in which relying upon a decision of the Apex Court it has been held that where a will is registered and the Sub Registrar certifies that the same had been readover to the executor the fact that the witnesses who proved attestation of the will are interested, loses significance. In the present case there are several circumstances which were relied upon by the courts below  for recording the finding of fact that the will could not be relied upon. The relationship of the petitioner and contesting respondents to the deceased tenure holder is the same. It has not been proved that there were strained  relationship between the deceased tenure holder and the contesting respondents who have been excluded. The burden of proving  the will and removing the suspicious circumstance lies upon the propounder. The fact that the attesting witness of the will is related to the petitioner is relevant in assessing his evidence in the totality of the facts and circumstances. The decision cited is not applicable on facts. The view taken by the authorities below does not suffer from any error of law. Dismissed.

Dt. 19.4.2007



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