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Smt. Nirmala Singh And Another v. In The Matter Of The Goods Of Late Smt. Prabhawati Devi - TESTAMENTARY SUITS No. 2 of 2005  RD-AH 1324 (18 January 2006)
Testamentary Suit No.2/2005
In the matter of the goods of
Late Smt. Prabhawati Devi
Hon. Sunil Ambwani, J.
These two testamentary suits namely Testamentary Suit No.2/2005 filed by Smt. Nirmala Singh and Smt. Shashi Singh wives of Shri Raghavendra Pratap Singh and Shri Manavendra Pratap Singh nephew of the Smt. Prabhawati Devi (deceased), who died on 9.9.99, based on will dated 31.8.99; and Testamentary Suit No.3/2005 filed by Smt. Abhilasha Singh daughter of Smt. Prabhawati Devi based on will dated 23.3.95, have come up for hearing on a preliminary issue:
"5. Whether the deceased had no right to execute the will under Section 168 of the U.P.Z.A. & L.R. Act, 1951?"
It is contended on behalf of Shri Anil Bhushan that the deceased inherited the property from her father in-law, Late Shri Sarv Narain Singh, who died in the year 1968 and thereafter, her husband Late Shri Narendra Pratap Singh. It is contended that at the time of death of Narendra Pratap Singh, there was a clog on the right of the widow to make a will, in respect of agricultural properties. The unamended Section 169 of U.P. Zamindari Abolition and Land Reforms Act, 1950 provided that no bhumidhar entitled to any holding or part in the right of a widow, widow of a male lineal descendant in the male line of descent, mother, daughter, father's mother, son's daughter, sister or half-sister being the daughter of the same father as the deceased, may bequeath by will such holding or part thereof.
It is contended that since the deceased had succeeded to non-transferable rights, and she had no right to make a will at the time when he succeeded to the properties, she could not have made a bequest in favour of her daughter.
Shri J. Nagar, learned counsel for Smt. Abhilasha Singh, daughter of the deceased submits that the argument has no force as sub-section (2) of Section 169 was omitted by Section 21 of the UP Act No.30 of 1975, and that the clog in to the common law right of making a will, was lifted. The deceased could make a will of agricultural holding inherited by her on 23.3.1995, in favour of her daughter. On the date of making of will there was no bar in law to transfer the rights after her death through the will. He further submi8ts that Shri Anil Bhushan has no right to make objections as in the Testamentary Suit No.2/2005, the wives of the objectors have also claimed the same agricultural holding through will of the deceased dated 31.8.99.
I find substance in the contention of Shri J. Nagar that after the amendment of Section 169 of U.P. Act No.30 of 1975, which omitted sub-section (2) of Section 169, a widow has a right to make a will with the condition in sub-section (3) that notwithstanding anything contained in any law, custom or usage the will shall be in writing and attested by two persons.
I also find substance in the contention that the nephews of the deceased, who are also claiming the same property through a will of the deceased in favour of wives cannot be heard in equity to plead against the right of the deceased to make a will.
It is thus held that the deceased had right to execute a will and the issue is returned against Shri Raghvendra Pratap Singh and Shri Manvendra Pratap Singh, caveator/ objector in Testamentary Suit No.3/2005.
Shri J. Nagar has filed documents. Let documents be also filed by other side within two weeks. Admission and denial within one week, thereafter. The list of witnesses shall be filed by the parties, and the matter shall be listed for recording of evidence on 20.3.2006.
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