Allahabad High Court
Ashok Kumar vs State Of U.P. Thru Prin. Secy. Deptt. Of ... on 24 May, 2024
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2024:AHC-LKO:39727 Court No. - 7 Case :- WRIT - C No. - 1001505 of 2015 Petitioner :- Ashok Kumar Respondent :- State Of U.P. Thru Prin. Secy. Deptt. Of Revenue U.P. And Ors Counsel for Petitioner :- Satyendra Kumar Tiwari,Anand Kumar Srivastava,Brijesh Kumar Yadav,Prabhu Ranjan Tripathi,Vasudev Yadav Counsel for Respondent :- C.S.C. Hon'ble Alok Mathur,J.
1. Heard Shri Brijesh Kumar Yadav, learned counsel for the petitioner as well as learned Standing Counsel on behalf of respondents no.1 to 4.
2. Notice was issued to the respondent no.5 and as per the office report dated 21.12.2023, the service of notice upon respondent no.5 is deemed to be sufficient. Despite service, no one has appeared on behalf of respondent no.5.
3. By means of the present writ petition under Article 227 of the Constitution of India, the petitioner has challenged the order dated 10.02.2015 passed by the Commissioner, Faizabad Division, Faizabad, thereby rejecting the revision preferred by the petitioner. The petitioner has also challenged the validity of the order dated 03.11.2008 passed by the Sub-Divisional Magistrate, Amethi, Sultanpur, who has rejected the appeal preferred by the petitioner against the order dated 19.09.2008 passed by the Tehsildar, Amethi, Sultanpur, rejecting the application for impleadment preferred by the petitioner.
4. The facts in brief are that one Sher Bahadur Singh had filed an application for mutation before Tehsildar, Tehsil - Amethi, District - Sultanpur which was registered as Case No.620/577/633, under Section 34 of the Land Revenue Act. After death of Kamasi Singh, Sher Bahadur Singh had filed the suit stating that he was the adopted son of Kamasi Singh while after the death of Kamasi Singh, name of one Banshidhar was entered into the revenue record as he was her nephew. After death of Sher Bahadur Singh, the substitution application was allowed by the Consolidation Officer where Banshidhar had filed his objections.
5. Controversy in the said case has emerged that after the death of Sher Bahadur Singh, application of substitution was moved by his widow, Kajari Devi, who was duly substituted in the said proceedings. It has been submitted that Kajari Devi had executed an unregistered Will in favour of the petitioner and accordingly on death of Kajari Devi, the petitioner had filed an application for impleadment which was rejected by the Tehsildar - Amethi by means of order dated 19.09.2008. Against the order dated 19.09.2008, an appeal was filed before the Sub Divsional Magistrate, Amethi, Sultanpur, who also rejected the appeal by means of order dated 03.11.2008 holding that the application for impleadment has been filed on the basis of an unregistered Will and accordingly no right would flow to the petitioner on the basis of unregistered Will and consequently, rejected the appeal. The order dated 03.11.2008 passed by the Sub Divisional Magistrate, Amethi, Sultanpur was assailed in revision before the Additional Commissioner (Judicial), Faizabad Mandal, Faizabad, who has upheld both the orders passed by the authorities below and dismissed the revision preferred by the petitioner and all the said orders have been impugned in the present writ petition.
6. It is noticed that all the three orders have been passed for different reasons, where in one order, it is stated that the order is beyond time while at the appellate stage, it was noticed that the impleadment is being sought on the basis of an unregistered Will and lastly, in the revisional order, it has been stated that adequate reasons for condonation of delay has not been stated and therefore, dismissed the revision.
7. It is noticed that according to the application for impleadment preferred by the petitioner before the Tehsildar, Amethi, Sultanpur, it was stated that unregistered Will was executed by Kajari Devi in his favour on 19.04.2001. Kajari Devi had given a power of attorney on 23.08.2000 in favour of one Ram Kripal, son of Pitamber. It was stated that it was Ram Kripal, who was appearing in the proceedings on behalf of Kajari Devi in the courts. It is further stated that on 08.05.2007 when the date was fixed, Ram Kripal could not go to the court and in his place the petitioner had visited the court and interacted with his counsel from where he came to know that no substitution has been made with regard to Kajari Devi in the said proceedings and it is only then he came to know that he being the legal heir on the basis of unregistered Will and has a right to get substituted in the said proceedings. These facts were never contested by parties at any stage on the proceedings and the application for substitution has been rejected on the grounds of delay, and also that he was claiming under an unregistered Will.
8. Having perused the said application as well as the orders passed by the various courts below, this Court is of the considered view that sufficient reasons have been stated by the petitioner seeking his impleadment before the Tehsildar, Amethi, Sultanpur. There is no doubt that said substitution had been sought on the basis of an unregistered Will and it has been submitted by the Counsel for the petitioner that there is no infirmity in seeking a claim on the basis of an unregistered Will inasmuch as in State of Uttar Pradesh Will is not a compulsorily registerable document and hence was a valid document and could be acted upon. In support of his submissions, he relied upon the judgement of a Division Bench of this Court in the case of Matters Under Article 227 No.8279 of 2022, Pramila Tiwari versus Anil Kumar Mishra and 4 others, dated 10.05.2024. It is on the aforesaid grounds, it has been prayed that the petition be allowed and the orders impugned be set aside.
9. Learned Standing Counsel has opposed the writ petition but could not dispute the aforesaid facts.
10. Considering the rival submissions, it is noticed that the dispute in the present case is only with regard to the rejection of the application for substitution preferred by the petitioner on the death of Kajari Devi. There is no dispute with regard to the fact that Kajari Devi had executed an unregistered Will in favour of the petitioner on 19.04.2001. Though substitution was moved after delay of more than six year but delay has been sought to be explained. In his application, it has been indicated that only when the petitioner had appeared in the court below on 08.05.2007 and interacted with the Counsel for Kajari Devi, he came to know that after the death of Kajari Devi, his name ought to have been substituted and only thereafter, he moved the application for substitution. The delay has also been adequately explained and accordingly, there is no reason as to why his application for substitution was rejected.
11. With regard to the question as to whether the registration of Will is a compulsory registerable, the Division Bench of this Court has answered the reference in the case of Pramila Tiwari versus Anil Kumar Mishra and 4 others, where it has been held as under:
34. Every legislation must ensure certainty as to its application and exercise of power under it. So to ensure this, when subject matter falls within competence of both the Union and the State Legislatures, the provision of Article 251 will come into play.
35. Our above view also finds support in the judgment of Supreme Court in the case of Babu Ram v. Santokh Singh (deceased); 2019 (14) SCC 162. Paragraphs 18, 19 & 20 relevant for the case in hand are being reproduced hereinunder:
"18. We now turn to the next stage of discussion. Even if it be accepted that the provisions of Section 22 would apply in respect of succession to agricultural lands, the question still remains whether the preferential right could be enjoyed by one or more the heirs. Would that part also be within the competence of the Parliament? The "right in or over land, land tenures ...." are within the exclusive competence of the State legislatures under Entry 18 of List II of the Constitution. Pre-emption laws enacted by Staet legislatures are examples where preferential rights have been conferred upon certain categories and classes of holders in cases of certain transfers of agricultural lands. Whether conferring a preferential right by Section 22 would be consistent with the basic idea and principles is the question.
19. We may consider the matter with following three illustrations:
a) Three persons, unrelated to each other, had jointly purchased an agricultural holding, whereafter one of them wished to dispose of his interest. The normal principle of pre-emption may apply in the matter and any of the other joint holders could pre-empt the sale in accordance with rights conferred in that behalf by appropriate State legislation.
b) If those three persons were real brothers or sisters and had jointly purchased an agricultural holding, investing their own funds, again like the above scenario, the right of pre-emption will have to be purely in accordance with the relevant provisions of the State legislation.
c) But, if, the very same three persons in illustration b) had inherited an agricultural holding and one of the them was desirous of disposing of his or her interest in the holding, the principles of Section 22 of the Act would step in.
The reason is clear. The source of title or interest of any of the heirs in the third illustration, is purely through the succession which is recognized in terms of the provisions of the Act. Since the right or interest itself is conferred by the provisions of the Act, the manner in which said right can be exercised has also been specified in the very same legislation.
Therefore, the content of preferential right cannot be disassociated in the present case from the principles of succession. They are both part of the same concept.
20. When the Parliament thought of conferring the rights of succession in respect of various properties including agricultural holdings, it put a qualification on the right to transfer to an outsider and gave preferential rights to the other heirs with a designed object. Under the Shastrik Law, the interest of a coparcener would devolve by principles of survivorship to which an exception was made by virtue of Section 6 of the Act. If the conditions stipulated in Section 6 were satisfied, the devolution of such interest of the deceased would not go by survivorship but in accordance with the provisions of Act. Since the right itself in certain cases was created for the first time by the provisions of the Act, it was though fit to put a qualification so that the properties belonging to the family would be held within the family, to the extent possible and no outsider would easily be planted in the family properties. In our view, it is with this objective that a preferential right was conferred upon the remaining heirs, in case any of the heirs was desirous of transferring his interest in the property that he received by way of succession under the Act."
36. In view of the above exposition of law and in view of what we have discussed above in this judgment, we hold sub-Section (3) of Section 169 of Act of 1950, in so far as it requires a Will to be compulsorily registered, to be repugnant to Section 17 read with Section 40 of the Indian Registration Act, 1908 and hence we hold the amendment of Section 169(3) of the U.P.Z.A.L.R. Act to that extent void.
37. Thus, our answer, to the question framed, is that sub-Section (3) of Section 169 having been declared as void to the extent it provides for registration of Will, the Wills in State of Uttar Pradesh are not required to be registered and a Will for its non registration will not be void whether before or after the U.P. Amendment Act, 2004.
12. In light of the above judgment, it is clear that there was no requirement of registrations of the Will and it could be acted upon as such and hence the findings of court below being contrary to the law laid down by this Court are set aside.
13. Accordingly, this Court finds merits in the submissions made by the learned counsel for the petitioner and hence the application for impleadment is allowed and the order dated 10.02.2015 passed by the Commissioner, Faizabad Division, Faizabad, order dated 03.11.2008 passed by the Sub-Divisional Magistrate, Amethi, Sultanpur and order dated 19.09.2008 passed by the Tehsildar, Amethi, Sultanpur are set aside. The Tehsildar Sadar is directed to proceed with the matter in accordance with law after impleading the petitioner as respondent in the aforesaid said proceedings.
14. The writ petition stands allowed in above term.
Order Date :- 24.5.2024 KR (Alok Mathur,J.)