Uttarakhand High Court
Smt. Leelawati vs Smt. Babita on 21 December, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition (M/S) No. 194 of 2011
1. Smt. Leelawati, W/o Mulki Ram,
R/o Village Maharajpur Khurd, Pargana Jwalapur,Tehsil
Laksar, District Haridwar.
2. Smt. Ilamwati, W/o Chandrapal
R/o Majlispur Taufeer, Tehsil Jansath,
District Muzaffarnagar (U.P.)
......Petitioners
-Versus-
Smt. Babita, W/o Shri Nandram
R/o Village Nandpur, Pargana Jwalapur, Tehsil Laksar,
District Haridwar
.....Respondent
Present:
Mr. M.S. Tyagi, the learned Senior Advocate assisted by Mr.
Chandra Prakash, the learned counsel for the petitioners.
Ms. Sonia Chawla, the learned counsel for the respondent.
Sri S.K. Mishra, J.
Date of hearing and Judgment 21.12.2021
1. Heard Mr. M.S. Tyagi, the learned Senior Advocate assisted by Mr. Chandra Prakash, the learned counsel for the petitioners and Ms. Sonia Chawla, the learned counsel for the respondent.
2. In this writ application, the petitioners being respondents before the District Dy. Director Consolidation/ Collector, Haridwar, has assailed the final order passed by the said court allowing the revision application under Section 48 of the U.P. Consolidation of Holdings Act, 1953, (hereinafter referred to as the Act, for brevity), setting aside the final order passed by the Appellate Authority, i.e., Assistant Settlement Officer, Consolidation, Haridwar, in Appeal No. 152 and Page No. 1 of 13 remanding back the case to the Appellate Authority for re-consideration.
3. The facts of the case may be briefly narrated as follows:-
The petitioners and respondent herein are the sisters born to Smt. Gommi, widow of late Shri Baldev. On her death, she left behind her agricultural lands in revenue village Raisi and village Habibpur Kuri and other properties, the petitioners claimed their rights in chak no. 99 and 100 of village Raisi and chak no. 147 of village Habibpur Kuri, Pargana Jwalapur, Tehsil Laksar, District Haridwar, on the basis of natural succession and inheritance. Their claim was resisted by the respondent on the basis of the will dated 03.11.1987, allegedly executed in her favour by Smt. Gommi. Before the Consolidation Officer, Roorkee, the petitioners and respondent filed a compromise application dated 15.02.1996, settling the dispute between them by giving half share to the respondent and half share to the petitioners and each one of the petitioners inherited ¼ of the properties.
The Consolidation Officer decided the aforesaid objections, filed under Section 9-A(2) of the Act, and decided the rights of the parties on the basis of succession by giving 1/3 share to each in the disputed property. Against such order an Appeal No. 812 was preferred before the Settlement Officer Consolidation, Roorkee, Haridwar, with a prayer to decide the matter according to the compromise. However, subsequently, the respondent moved an application for amendment dated Page No. 2 of 13 09.09.1998, in the aforesaid appeal claiming her right on the basis of the will propounded by her. The appeal was allowed on 09.09.1998 by setting aside the order dated 06.02.1996, passed by the Consolidation Officer with a direction to him to decide the matter on its merits after giving opportunity of hearing to the parties. So it was the order of remand to the court of the learned Consolidation Officer, Roorkee.
The proceeding was registered before the Consolidation Officer, Roorkee, as Suit No. 308 under Section 9-A(2) of the Act, and, thereafter, both the parties adduced evidences before the Consolidation Officer, Roorkee, and also relied upon the documentary evidence to prove their respective cases. The Consolidation Officer, Roorkee, vide order dated 25.08.2004 came to the conclusion that respondent was the owner of the Chak No. 99 and 100 of Village Raisi on the basis of the will propounded by her and the land of village Habibpur Kuri was succeeded by the petitioners and respondent on the basis of natural succession.
The petitioners challenged the aforesaid order by filing Appeal No. 1019 of 2004 before the Settlement Officer of Consolidation, Haridwar, camp at Roorkee mainly on the grounds that the learned Consolidation Officer, Roorkee, has passed the order merely on the basis of surmises and conjectures totally ignoring the evidence available on record and has wrongly relied upon the evidences produced by the respondent. The petitioners claims that the will is shrouded with suspicious circumstances and has not been properly proved by the respondent before the trial court, as the witnesses of the Page No. 3 of 13 will could not prove it and the petitioners are in possession of their share in the disputed property and the alleged will is forged and concocted one. It is further alleged that the same has been prepared by the respondent without consent of late Smt. Gomi and against her will.
The aforesaid appeal was re-numbered as Appeal No. 152 under Section 11(1) of the Act 1953 and the same was allowed by the Assistant Settlement Officer of Consolidation, Haridwar, vide judgment and order dated 11.10.2007 by setting aside the judgment and order passed by the Consolidation Officer and the rights of the parties were decided on the basis of the natural succession over the property in question.
The respondent preferred a revision bearing no. 177 of 2007-08 under Section 48 of the Act, 1953, mainly on the ground that the order dated 11.10.2007 is against the evidence available on record and the registered will has been ignored by the appellate court though the same was properly proved and the right of the parties can be decided on the basis of the will and not on the basis of natural succession. The consolidation proceedings were going on nearly for 15 years and after the publication under Section 52 of the Act, vide order dated 11.10.2007, the natural succession has been held and will has been ignored. The learned District Dy. Director of Consolidation/Collector, Haridwar, vide order dated 16.12.2010, allowed the aforesaid revision, set aside the impugned order, and directed the Assistant Settlement Officer , Consolidation, Roorkee, Haridwar, to re-hear the matter on merits. In other words, the District Dy. Director Page No. 4 of 13 of Consolidation, remanded the matter backto the appellate authority for rehearing.
4. In assailing the order passed by the learned District Dy. Director of Consolidation/Collector, Haridwar, the learned Senior Advocate Mr. M.S. Tyagi, appearing for the petitioners would argue that the District Dy. Director of Consolidation/Collector, Haridwar, passed the order of remand without properly verifying the findings recorded by the Assistant Settlement Officer i.e. appellate authority. He would take the court to the order passed by the District Dy. Director of Consolidation, Haridwar, which appears to be a very cryptic one. Thereafter, he would further lay emphasis on the observations made by the Assistant Settlement Officer, Roorkee, in the second paragraph,internal page 5 of the judgment and would argue that the appellate authority has carefully examined the evidences available on record in the shape of the evidences of witnesses, namely, Vijay Singh Chauhan and Shanti Prasad, the attesting witnesses of the will. He would argue that the learned Appellate Judge has come to a just and proper conclusion having carefully examined the evidences of witnesses examined on behalf of the respondent. Therefore, he would argue that the remand to the appellate authority is against public policy and should not be allowed to stand by this Court exercising writ of certiorari jurisdiction and supervisory jurisdiction under Article 226/227 of the Constitution of India respectively. Mr. Tyagi would submit that the lis should be decided by examining the evidences.
Page No. 5 of 135. Ms. Sonia Chawla, the learned counsel appearing for the respondent, on the other hand would argue that the order passed by the Assistant Settlement Officer, Consolidation, Roorkee, is against the weight of the evidence, as it is apparent from the record that the will dated 17.09.1987 is a registered documents, and, therefore, some weightage has been given to the same. Furthermore, she would argue that as per the ratio decided by the co-ordinate Bench of this Court in the case of Swaran Singh vs. State of Uttarakhand and others in WPMS No. 219 of 2005, decided on 26.07.2017 wherein this Court has held that the order of remand is an interlocutory order and a writ of certiorari is not maintainable against it. In the said judgment, the reported case of Kshitish Chandra Bose vs. Commissioner of Ranchi, AIR 1981 SC 707, has been taken into consideration. Therefore, it is argued by the learned counsel for the respondent that there is no merit in the writ application and writ application should be dismissed.
6. In this case, the Assistant Settlement Officer, Consolidation, after examining the evidences on record especially the evidences of Vijay Singh Chauhan and Shanti Prasad has come to the conclusion that there has been no valid proof of proper attestation of the will allegedly executed by Smt. Gommi in order to decide whether there has been proof of the execution of the will of late Smt. Gommi, it is appropriate to take into consideration both the provisions of the Indian Succession Act, 1925 and Indian Evidence Act, 1872. Section 63 of the Indian Session Act reads as follows:-
Page No. 6 of 13"63. Execution of unprivileged Wills. --Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 22 [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:--
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
(underlined for emphasis)
7. Section 68 of the Indian Evidence Act provides for proof of execution of document required by law to be attested. It reads as follows:-
"68. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
3[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been Page No. 7 of 13 registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]"
8. A plain reading of these provisions reveal that the following required to be satisfied before relying on a will:-
(i) Testator should sign or affixed his mark to the will;
(ii) The signature or mark of the testator should be so placed that it shall appear that it was intended thereby to give effect to the writing as a will;
(iii) That it should be attested by two or more witnesses;
(iv) Each of the said witnesses must have seen the testator signing or affixing his mark to the will and each of them should sign the will in presence of the testator and;
(v) At least one of the attesting witnesses should be examined in the court to prove the will.
Interpreting these provisions, the Hon'ble Supreme Court in the case of Yumnam Ongbi Tampha Ibema Devi vs. Yumnum Joykumar Singh & Others, (2009) 4SCC 780, has held at paragraph 12 and 13 that the attestation of the will in the manner stated above is not an empty formality. It means signing a document for the purpose of testifying of the signatures of the executant. The attested (sic attesting) witness should put his signature of the will animo attestandi. It is not necessary that more than one witness be present at the same time and no particular Page No. 8 of 13 form of attestation is necessary. Since a will is required by law to be attested, its execution has to be proved in the manner laid down in the section 68 of the Indian Evidence Act which requires that at least one attesting witness has to be examined for the purpose of proving the execution of such a document. It is further held that having regard to the provisions of Section 68 of the Indian Evidence Act and Section 63 of the Succession Act, a will to be valid should be attested by two or more witnesses in the manner provided therein and the propounder thereof should examine one attesting witness to prove the will. The attesting witness should speak not only about the testator's signature or affixing his mark to the will but also that each of the witnesses had signed the will in the presence of the testator.
9. Applying this principle and requirement under Section 68 of the Evidence Act, this Court is of the opinion that the law is very clear that whenever a document is required to be attested it shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if the attesting witness is alive, subject to the process of the Court and capable of giving evidence.
10. Ms. Sonia Chawla, the learned counsel for the respondent further argued that in a case of a registered document a provision of Section 68 is not applicable. However, her contention is not acceptable in view of the fact that in the proviso itself said section further provides that it shall not be necessary to call attesting witness in Page No. 9 of 13 proof of the execution of a document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied. So the provision to Section 68 of the Evidence Act provides to a situation where two conditions are satisfied; firstly, the execution of the document is not denied by the parties against whom it is put forth and; secondly, it is a registered document. But such proviso is not applicable to a will, even if it is a registered document. In case of a will, it is sine qua non on the part of a party relying upon the same to examine at least one of the attesting witness who should prove due execution of the will and attestation thereof. Moreover, in a case where an aged lady said to have executed a will by affixing a thumb impression, it is also a duty of party relying upon said document to prove that actually she understood the purports and consequence of the document before affixing her thumb impression over the document. In other words, it must be proved by cogent evidence that her physical act of affixing a thumb impression over a will in question was in fact her mental act and that the hand moved with her mind.
11. In this case, it is apparent from the records that both the witnesses, namely, Vijay Singh Chauhan and Shanti Prasad have not stated that they have seen Smt. Gomi executing the will not they have stated that they have seen Smt. Gommi to be affixing her thumb impression to the will in question. In this case there is singular lack of Page No. 10 of 13 proof of due execution and due attestation on such execution by both the witnesses.
12. We have carefully examined the judgment of the learned Assistant Settlement Officer, Consolidation, Roorkee. This Court is of the opinion that the said authority has very carefully and meticulously examined the evidences available on record and has come to a just and proper conclusion which requires no interference of the revisional court.
13. Moreover, a careful examination of the order of the revisional court reveals that he passed a very cryptic order by stating as follows:-
"mHk; i{kksa ds fo}ku vf/koDrkvkssa ds rdZ lquus ,oa i=koyh ij miyC/k vfHkys[kksa ds voyksdu ls ;g Li'V gS fd voj U;k;ky; us olh;r ds laca/k esa iw.kZ foospuk ugha dh xbZ gSA voj U;k;ky; dks pkfg, Fkk fd olh;r ds laca/k esa iw.kZ lk{; izkIr dj izdj.k esa fu.kZ; nsuk pkfg, ,oa i=koyh ij vk;s lk{;ksa@c;kuksa ds laca/k esa iw.kZ foospuk dh tkuh pkfg,A ,slh n"kk esa iz"uxr izdj.k esa iw.kZ fLFkfr Li'V ugha gks ik jgh gSA vr% voj U;k;ky; dk vkns"k fnukad 11-10-2007 mi;qDr u gksus ds dkj.k fujLr fd;k tkuk ,oa izdj.k dks iqu% voj U;k;ky; dks izfrizsf'kr fd;k tkuk mfpr gksxkA"
14. So this order of remand is a very cryptic order and has not taken into consideration the discussion of the evidences by the learned Assistant Settlement Officer , Consolidation in the order impugned before the revisional authority. Hence, this Court is of the opinion that the order of remand passed by District Dy. Director of Consolidation/Collector, Haridwar, is erroneous and unreasonable on the face of the record. It requires interference of this Court because of the fact that it has Page No. 11 of 13 been passed in complete disregard to the material facts and evidences.
15. Coming to the second contention raised by Ms. Chawla, the learned counsel for the respondent, that order of remand being a interlocutory order should not be entertained in a proceeding of certiorari under Article 226 or supervisory jurisdiction under Article 227 of the Constitution of India. However, the judgment cited by Ms. Chawla in buttressing her contention on this issue was not applicable to this case because the judgment that has been cited by the learned co-ordinate Bench i.e. Kshitish Chandra (supra), the Hon'ble Supreme Court has held that the order of remand passed by the High Court under Section 100 of Code of Civil Procedure, 1908, is appealable to the Supreme Court under the provision of Article 136 of the Constitution of India i.e. provision for special leave to appeal. Nowhere in the Supreme Court's judgment it is laid that a order of remand being an interlocutory order cannot be entertained in a writ of certiorari or supervisory jurisdiction under Article 226/227 of the Constitution of India. Moreover, this Court has time and again held that the order of remand is not in line of the public policy, in fact, whenever judicial authority, courts or tribunal, is in seisin of matter, and all the materials that are relevant for the case are available on record then it should make an endeavour to dispose of the lis pending before it so that a quietus can be achieved as far on the litigation on disputed question concerned. Unnecessary remand, is, therefore, definitely against the settled judicial principle as followed in our country.
Page No. 12 of 1316. Hence, this Court is of the opinion that in view of the fact that the order passed by the learned District Dy. Director of Consolidation/Collector, Haridwar, being a cryptic one ignoring the material available on record, should be interfered with in a writ of certiorari and supervisory jurisdiction under Article 226/227 of the Constitution of India.
17. In that view of the matter, the writ petition is allowed. Order dated 16.12.2010 passed by the District Dy. Director of Consolidation/ Collector, Haridwar is hereby set aside. The order dated 11.10.2007, passed by the Assistant Settlement Officer , Consolidation, Roorkee, Haridwar, in Appeal No. 152 is hereby restored.
18. There shall be no order as to costs.
(S.K. Mishra) Judge PV Page No. 13 of 13