Allahabad High Court
Ram Shankar vs D.D.C. And Others on 12 February, 2020
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 68 Case :- WRIT - B No. - 3336 of 1984 Petitioner :- Ram Shankar Respondent :- D.D.C. And Others Counsel for Petitioner :- H.O.K. Srivastava,Arvind Srivastava,Manish Tandon Counsel for Respondent :- Brij Mohan,Ravi Kant,S.C.,S.M. Dayal,Satish Kumar Pandey,Uttam Singh Hon'ble Saumitra Dayal Singh,J.
Re :- Civil Misc. Substitution Application No. 65535 of 2006
1. This is an application for substitution of respondent no. 5/3, who has died.
2. Notice was issued on this application. None has appeared to oppose the substitution application.
3. At present, no objection appears to exist to the said application.
4. The substitution application is thus allowed.
5. Let, the words 'since deceased' be added against the name of respondent nos. 5/3 and in his place, his legal heirs, as described in prayer clause of the substitution application, be substituted as respondent nos.5/3/1, 5/3/2 and 5/3/3.
6. Office to incorporate the necessary changes in the substitution application before issuance of certified copy of this order.
Order on Petition:
7. List revised. None is present for the private-respondents.7.
8. Rejoinder affidavit filed today is taken on record.
9. Heard Sri Arvind Srivastava and Sri Manish Tandon, learned counsel for the petitioner and Sri Ashutosh Kumar Rai, learned Standing Counsel for the State of U.P.
10. The present writ petition has been filed against the order passed by Deputy Director, Consolidation, Kanpur dated 04.02.1984, whereby the said Authority has allowed the revisions (Revision Nos. 268 and 269) filed by respondent nos. 4 and 5.
11. One Parwati was the recorded tenure holder over Chak No. 92, in Village Umari Buzurg and Chak No. 90, 91 and 278, in Village Baragoan Bhiki. Consolidation operation had commenced in those villages, in the year 1977. The said Parwati died during consolidation operation. Her death gave rise to an application filed by respondents nos. 4 and 5, under Section 12 of U.P. Consolidation of Holdings Act (U.P. Act 5 of 1954)1. The petitioner filed objections to that application and also raised his own claim. In the proceedings before the Consolidation Officer, the respondent nos. 3 and 4 made claim solely on the basis of succession, whereas the petitioner claims to have set up will dated 04.12.1977. In support of his claim, the petitioner led evidence of two attesting witnesses - Avinash Chandra and Dinesh Chandra, the two marginal witnesses. The petitioner also testified in support of the will. The witnesses were subjected to extensive cross-examination. Thereafter, vide order dated 30.10.1982, the Consolidation Officer allowed the claim set up by the petitioner and rejected the objections filed by respondent nos. 4 and 5.
12. The appeal filed by respondents against order dated 30.10.1982 was dismissed vide order dated 17.09.1983 passed by Settlement Officer, Consolidation, Kanpur. However, further revision filed by the respondents against that order has been allowed and the will set up by the petitioner has been disbelieved.
13. Learned counsel for the petitioner would submit that the petitioner may not have disclosed the will in the objections as were filed under Section 12 of the Act, however, the fact of his objections having been amended to that effect and claim having been thus made on the strength of the will dated 04.12.1977 cannot be denied. After setting up the claim on the strength of aforesaid will, the petitioner led sufficient evidence to prove the same. Thus, both attesting witnesses, Avinash Chandra and Dinesh Chandra were examined at length. They fully established the fact of the will having been executed by the testatrix, namely, Parwati. They, also, established that such will was written by one Gopal who was the village Pradhan of village Umari Buzurg, where part of the estate of the testatrix, exists. Referring to the pedigree, it has been submitted that both the petitioner as also respondent nos. 4 and 5 are relatives of the testatrix. However, the will came to be made in favour of the petitioner, in view of the peculiar relationship that had arisen between those parties inasmuch it was the petitioner alone who took care of the testatrix in her last days. Then, referring to the issues that were framed by the Consolidation Officer, it has been submitted that the respondents only made a general allegation of the will being forged, but they did not raise any specific objection and in any case, they did not lead any evidence to establish either that the testatrix was not in sound mind, or that she was otherwise incapacitated, or had acted under force or coercion practiced by the petitioner, as may have resulted in her executing the will. In the absence of any specific plea being raised by the respondents, the petitioner was only obligated to establish due execution of the testamentary document, which burden had been fully discharged. The minor discrepancy, if any, in the testimony of the attesting witnesses, was wholly irrelevant and inconsequential, inasmuch as in the first place, the respondents never doubted the fact that the testamentary document has been scribed by one Gopal, who was the village Pradhan of village Umari Buzurg. They only doubted the execution of the document by the testatrix. Therefore, neither the petitioners were burdened to examine the said scribe of the will, Gopal, nor any evidence was required to be led by them in that regard. Though the respondents doubted the execution of the will, but they never asserted that the thumb impression of the testatrix affixed on the said will was not hers. In any case, no issue was framed in that regard and therefore, the petitioner was not burdened to establish, of his own, that the said thumb impression was of the testatrix by proving any specimen thumb impression.
14. Insofar as the scribe of the will; the testatrix and; the attesting witnesses were proven to have been present at the same time when the will document was executed and insofar it was proven that they had signed the will document in the presence of each other and in the presence of the testatrix and that the testatrix had affixed her thumb impression on the will document in their presence, no further or other burden survived to be discharged by the petitioner before he could claim the benefit of such a will. In such facts, it has been submitted that the Revising Authority has proceeded on presumptions and conjectures, in doubting the will, being prejudiced in favour of the rule of succession over devolution under the will of the testatrix. Thus, referring to the observations made in the order of the Revising Authority, it has been submitted that there was no basis existing on record, on which it may have been open to the Revising Authority to doubt due execution of the will document. He has proceeded merely on the presumption that no testator would upset the normal rule of succession. Being biased, the Revising Authority has then proceeded to search out doubts and discrepancies in the statement of the attesting witnesses. Even so, the fact as to which of the two attesting witnesses reached the testatrix first and who signed the document first, before the other and which pen was used by which signatory, would remain wholly irrelevant in the context of the undisputed position that both the attesting witnesses were proven to have signed the will document in the presence of each other and that the testatrix had affixed her thumb impression thereto, in their presence, at that time.
15. Then, the doubt expressed as to the thumb impression of the testatrix is stated to be wholly unfounded, inasmuch as it was never open to the Revising Authority to itself cull out a new ground when no such challenge had been raised by the respondent nos. 4 and 5 in the proceedings before the Consolidation Officer or even in the revision proceedings. In any case, unless there was a specimen thumb impression of the testatrix existing on record and unless a challenge had been raised to the genuineness of the thumb impression of the testatrix existing on the will document by the respondents, it may never have been open to the Revising Authority and in any case, it may never have been possible for the Authority to arrive at the conclusion that thumb impression on the will document was not that of the testatrix.
16. This being a title dispute, the State has no role to play. In the absence of learned counsel for private-respondents, the matter has been proceeded ex-parte against those respondents.
17. Having heard learned counsel for the petitioner and having perused the record, it is seen that the Consolidation Officer had framed Issue No. 3 to the following effect - Whether the deceased had executed a will in favour of the petitioner? After framing such an issue, the Consolidation Officer made an observation that the property in question was self-acquired by the testatrix. While dealing with the issue of the existence and genuineness of the will dated 04.12.1977, he considered the evidence of the two attesting witnesses, Avinash Chandra and Dinesh Chandra. He also considered the objections raised by the respondents, being confined to the difference in the ink with which the document had been written by the scribe and the ink with which the signatures of the attesting witnesses and the thumb impression of the testatrix had been found affixed. Another objection noted in that order is to the fact that there were sufficient number of literate persons available in the village of the testatrix and therefore, there was no occasion for Gopal, the village Pradhan of village Umari Buzurg, to have written the will in his own hand.
18. Having made note of such evidence and objections, the Consolidation Officer recorded his finding that the will document had been validly executed. The finding of the Consolidation Officer has been reached quite abruptly and it may be true that the same may not be very well reasoned. However, it is equally true that in the appeal proceedings, those objections were again raised and considered. The Settlement Officer, Consolidation, in his order dated 17.09.1983, made a detailed consideration of the evidence. He found that the testatrix was residing with the petitioner before her death and that her will had been proven by the two attesting witnesses. He found the will to be beyond suspicion of fraud. He rejected the objection raised on the basis of alleged discrepancy in the ink and further observed that inasmuch as the will had been written in the handwriting of Gopal, the village Pradhan, it lent more credibility to the document and it did not, create any doubt, as alleged by the respondents. Having made that discussion in the last few paragraphs of his order, the Settlement Officer, Consolidation then concluded on the basis of that discussion that he disagreed with the submissions advanced by counsel for the appellants (before him) and consequently, rejected the appeal.
19. Thus, though the order of the Consolidation Officer is also not very happily worded and it may itself had been difficult to sustain, however, perusal of the order of the Settlement Officer, Consolidation, which was the higher Appellate Authority and also a fact finding authority, had examined the facts and evidence on record and thereafter, reached its conclusion (on facts) in favour of the petitioner that the will set up by them dated 04.12.1977, was genuine. Once the fact-finding Appellate Authority had itself dealt with the issue at length, the defect, if any, in the order of the Consolidation Officer, would be insignificant. It is the finding of the Settlement Officer, Consolidation that had to be tested in the revision proceedings.
20. Perusal of the order of the Revising Authority does not appear to bring out any reasoning as may have resulted in his upsetting the findings of fact recorded by the Consolidation Officer. In the first place, the observations made in the order of the Revising Authority, which are to the effect that rule of succession is to be preferred over devolution under a will outside the normal rule of succession, has no basis. In given facts, it may remain a cause for suspicion, but not a given start point for inquiry in all cases of will. The Revising Authority was obliged to examine whether the burden which was cast upon the petitioner, had been discharged. To apply that test, the Revising Authority was further obliged to examine as to what exactly were the issues framed before the Consolidation Officer.
21. In the present case, the only issue framed by the Consolidation Officer was whether the testatrix, Parwati, had executed her will in favour of the petitioner. In the absence of any other plea or issue, the normal burden cast upon the petitioner alone was required to be discharged. The normal burden that existed on the petitioner was that as may arise under Section 63 of the Succession Act, 1925 read with Section 68 of the Indian Evidence Act, 1872. That being the test, the finding of the Settlement Officer, Consolidation read with statement of the two attesting witnesses, as have also been annexed in the writ petition, does indicate, quite unequivocally, that the petitioner had led evidence to establish that the will document had been written in the handwriting of Gopal and executed by the testatrix, by affixing her thumb impression on that document, in the presence of said Gopal, as also the two attesting witnesses who had affixed their signatures to the will document, in evidence thereof. Also, it had been proved that the testatrix was about 82 years of age when she executed the will document; she was issue less; had been residing with the petitioner for long and that the petitioner's mother had served the testatrix in her old age; she was of sound mind when she executed the will, though she was feeble owing to her old age when executed the will. Despite lengthy cross-examination, it does not appear that any discrepancy arose so as to doubt either the presence of any of the attesting witness or the testatrix or the scribe of the will, who were, all, proven to have been present at the same time, when the disputed will is claimed to have been executed.
22. Thus, there appears no error in the finding recorded by the Settlement Officer, Consolidation that the will document had been duly and validly executed. The doubts that have engaged the attention of the Revising Authority as to the difference in the ink, trivial discrepancy in the statement of the two attesting witnesses, as to which of them arrived first and which of them first signed the will document, may again remain irrelevant inasmuch as despite such discrepancy, there is no material to doubt that the two attesting witnesses, were both present at the same time and place and that the will deed was executed by the testatrix in their presence.
23. The other reasoning that has impressed the Revising Authority doubt as to the genuineness of the thumb impression of the testatrix, is wholly imaginary, in the facts of the case. In the first, the respondents never pleaded that the thumb impression found existing on the will document was not that of the testatrix, Parwati. Second, there was no specimen thumb impression of the testatrix available on record. Third, no comparison of the thumb impression available on the will document had been made by the Revising Authority with any other admitted or other thumb impression of the testatrix, before rushing to the conclusion that the thumb impression existing on the will document was not genuine.
24. The fact that the petitioner set up the will through amendment and not in the original application filed under Section 12 of the Act may never be decisive in such matters. Insofar as the petitioner had sought amendment and set up the will, whereupon issues were also framed and evidence led before conclusion of facts were drawn as to the genuineness of the will, it was wholly presumptive on the part of the Revising Authority to discredit and disbelieve the will because it had been set up through amendment.
25. The fact that the testatrix died within a few days after executing the will may have been a ground to suspect the genuineness of the will document, but it could not constitute a reason to disbelieve the same in face of it being proved that the testatrix was in good mental health when she executed the will. Once the due execution of the will document stands proven, it may be seen, that the testatrix was about eighty two years of age and had been residing with the petitioner for long. He and his mother were proven to have taken care of her during that time. It was never proven by the respondents that the testatrix ever resided with them or that they ever took care of her needs. Considering the undisputed fact that the testatrix was issue less, the fact that she executed her will in favour of the petitioner a few days before her death, is not sufficient in itself to disbelieve her will.
26. Thus, in the entirety, the order of the Revising Authority is found to be wholly unsustainable for the reasons mentioned above. It is accordingly set aside. The order passed by the Settlement Officer, Consolidation is hereby affirmed.
27. In the result, the instant writ petition stands allowed.
Order Date :- February 12, 2020 I. Batabyal (Saumitra Dayal Singh, J.)