Allahabad High Court
Ram Narain And 4 Others vs Smt. Gajraji And Another on 28 January, 2020
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 53 Case :- SECOND APPEAL No. - 45 of 2017 Appellant :- Ram Narain And 4 Others Respondent :- Smt. Gajraji And Another Counsel for Appellant :- Saroj Kumar Pandey,Brijesh Narayan Srivastav Counsel for Respondent :- Gyan Prakash Srivastava Hon'ble Vivek Agarwal,J.
Heard Sri S.K. Mishra, learned counsel for the appellants and Sri Gyan Prakash Srivastava, learned counsel for the respondents.
This second appeal has been filed by the defendants being aggrieved by judgment and decree dated 18.10.2016 passed by learned Additional District Judge, Bansi, District- Siddarth Nagar in Civil Appeal No.13 of 2015 (Ram Narain and others Vs. Smt. Gajrajji and another) arising out of the judgment and decree dated 31.03.2015 passed by learned Civil Judge (Junior Division), Domariyaganj, District- Siddharth Nagar in Original Suit No.336 of 1980.
This appeal is heard on admission.
Learned counsel for the appellants submits that plaintiff had filed a suit for cancellation of the Will dated 23.06.1980. It is an admitted fact that during the trial since defendant no.2-Bal Mukund had died, therefore, his legal heirs were substituted.
Plaintiff's contention is that Bhaddu Shukla had three sons namely Tribhuwan, Manopdatt and Raghuraj. Jog Narain son of Tribhuwan is defendant no.3. Jagdish (deceased) husband of the plaintiff is son of Manopdatt whereas defendant no.1-Ram Narain is son of Raghuraj and defendant no.2-Bal Mukund is also son of Raghuraj.
As per the plaintiff-Jagdish, husband of the plaintiff had agricultural land at Village-Phoolpur Raja, Parsohan Majhawa Tappajat Buddhi, Pargana-Banshi, West and Govindpur.
It is submitted that Jagdish died on 10.06.1980 and plaintiff herself had performed his last rites on 11.06.1980 at Ayodhya. Defendants are cousin brothers of Jagdish. Plaintiff has no son or daughter but there is one daughter from the first marriage of Jagdish namely Malti Devi who is married and is having children. Said Malti Devi is residing with the plaintiff. Defendants being persons of not good antecedents rather being fraud, litigating with a view to illegally usurp property situated in four villages got a Will prepared on 23.06.1980, the date on which she was to perform 13th day ceremony of her husband by fraudulently projecting one Rameshwar son of Raksha Shyam or any other person showing to be Jagdish got executed a Will with relatives and close friends of the defendants namely Kanhaiya, Kashi Prasad and Shyam Prasad as a witness got such Will registered in the Office of Registrar at Domariyaganj which is of 13 days after death of the plaintiff's husband.
It is also her case that defendant no.3 had counselled the defendant nos.1 and 2 to restrain from doing such fabricated act, but defendant nos.1 and 3 did not pay heed to it. Concerned Kanoongo had recorded the name of the plaintiff in the revenue records in place of her husband but she discovered the fact of such forged Will when an application was filed by the defendants in the Office of Tehsil-Domariyaganj for mutating the said land in their favour and when a public notice was issued in which plaintiff had filed objections after obtaining copy of the Will.
Plaintiff had filed her documents in reply to which respondent no.3 filed document no.19A-1 accepting the averments made in the plaint from para-1 to 5 but disputed the cause of action and accepted that suit can be decreed.
Defendant nos.1 and 2 rebutted the plaint averments by filing written statement vide document no.26A-1, denying the plaint averments and submitted that Jagdish Prasad had executed such Will dated 23.06.1980 in their favour which was registered on 26.06.1980 in the Office of Sub-Registrar, Domariyaganj. It is submitted that Jagdish Prasad had not died on 10.06.1980 but on 26.06.1980 and his rites were performed by the defendants on 27.06.1980.
Learned Trial Court framed five issues as to the validity of the Will, jurisdiction, valuation, and the relief. On the basis of the evidence, which has come on record. It observed that original Will is available on record as Document No.177A-1. There are two attesting witnesses to the Will namely Shayam Prasad and Kashi Prasad but defendant has produced three witnesses in its support but none of them is a attesting witness to the Will and based on such appreciation of evidence that the Will dated 23.06.1980 is contrary to the principles of law and not a genuine document as a result decided Issue No.1 that plaintiff is entitled to get such Will set aside and Will was accordingly set aside.
Learned counsel for the appellants submits that at the stage of the Trial Court, one of the attesting witness had died. However, such burden has not been discharged by the appellant that when D.W.-1 (Ram Narain) was examined before the Trial Court, then both the attesting witnesses were not surviving. D.W.-1-Ram Narain did not mention in his examination-in-chief which is available on record as Annexure-5 and which is dated 06.12.2013 that the attesting witnesses to the Will have died.
Similarly, D.W.-2 has also not mentioned in his examination-in-chief that attesting witnesses to the Will have died.
Learned counsel for the appellant submits that Shyam Prasad was examined when proceedings were undertaken under Section 9 and Rule 26 of Consolidation Act and Consolidation Rules respectively and such evidence is available on record as Annexure-6 in which Shyam Prasad has testified that Jagdish had prepared a Will in front of him and was read over to him and, thereafter, Shyam Prasad had signed on the Will and Kashi Prasad had put his thumb impression on the Will. However, the fact remains that the proceedings before the consolidation authorities are summary in nature. There findings are not binding on the Civil Court. They operate in a different domain and area. It is equally true that before the civil court, there is no mention of the fact as to when attesting witnesses died. No evidence was led by the appellants to the fact that attesting witnesses were not alive at the time of evidence of the defendant and therefore they were not in a position to adduced their evidence.
At this stage, learned counsel for the appellant submits that Shyam Prasad had died but Kashi Prasad could have been examined in support of the contention to prove the genuineness of the Will but once such evidence was not led by the defendants who were the beneficiary of the alleged Will, the Trial Court did not erred in decreeing the suit as burden was on the defendants to prove the genuineness of the Will in terms of the provisions contained in Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act.
Learned first Appellate Court too has adverted to these facts and has held that in the light of the law laid down by Supreme Court in case of Anita Pal Vs. Mahesh Jain and others as reported in AIR 1982, the burden to be discharged to prove the Will under the provisions of Section 63 of the Succession Act is on the person in whose favour Will has been prepared. If there are any suspicious circumstances, then Will can be discarded.
Similarly, referring to the judgment of Allahabad High Court in case of Ajay Kumar Gupta Vs. Smt. Usha Sharma as reported in 2013(2) JCLR 774, Alld., it has been held that Will is to be proved in terms of the provisions contained in Section 68 of the Evidence Act.
Thus, the plea of the appellant is that once they had led evidence in the matter of consolidation of holdings as to the validity of the Will, then that evidence was binding and validity of Will stood proved before the Consolidation Officer and it would not have been put to challenge by filing a suit for cancellation of the Will.
Before proceeding to discuss the validity of this submission, it will not be out of place to mention that the U.P. Consolidation and Holdings Act, 1953 has an object to allow a compact area in lieu of scattered plots to tenureholders so that large scale cultivation may be possible with all its attendant advantages. These advantages resulting from consolidation of holdings are intended to encourage the development of agriculture and larger production of foodgrains, which is the necessity of the day. However, it has also been held in case of Mool Chand vs. Deputy Director of Consolidation, Mathura as reported in 2007 (103) RD 469 that the U.P. Consolidation of Holdings Act, 1953 does not deal with the grant of substantive rights to be given to the tenure holders. The U.P. Consolidation of Holdings Act is only procedural with regard to the consolidation of holdings. Section 40 of the U.P. Consolidation of Holdings Act, 1953 provides that proceedings before Settlement Officer, Consolidation, Consolidation Officer and Assistant Consolidation Officer shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 and for purposes of Section 197 of the Indian Penal Code. However, Section 9-A deals with disposal of cases relating to claims to land and partition of joint holdings. For this, procedure is given in Rule 26 of the U.P. Consolidation of Holdings Rules, 1954, but nowhere it is held that authority under U.P. Consolidation of Holdings Act can deal with grant of substantive rights.
In this context, I, would like to refer to Chapter 9 in the Book Titled "Principles of Statutory Interpretation", 13th Edition, 2012 by Justice G.P. Singh, Former Chief Justice, Madhya Pradesh High Court, as he then was dealing with "statutes affecting jurisdiction of Courts", to examine the hypothesis put-forth by the appellant that by virtue of examination of one of the attesting witnesses to the Will, jurisdiction of the Civil Court stood excluded from asking for the evidence of such witnesses to prove the Will can be examined in the light of "Rule of Conclusive Evidence", as has been discussed in this Chapter. To understand and answer the problem, reference can be added to the judgment of Hon'ble Supreme Court in case of Izhar Ahmed vs. Union of India as reported in AIR 1962 SC 1052 wherein the Hon'ble Supreme Court has laid down the test for determining whether a rule of irrebuttal presumption is a rule of evidence or a rule of substantive law. GAJENDRAGADKAR, J. in that connection said: "In deciding the question as to whether a rule about irrebuttable presumption is a rule of evidence or not, it seems to us that the proper approach to adopt would be to consider whether fact A from the proof of which a presumption is required to be drawn about the existence of fact B is inherently relevant in the matter of proving fact B and has inherently any probative or persuasive value in that behalf or not. If fact A is inherently relevant in proving the existence of fact B and to any rational mind it would bear probative or a persuasive value in the matter of proving the existence of fact B then a rule prescribing either a rebuttable or irrebuttable presumption in that behalf would be a rule of evidence. On the other hand, if fact A is inherently not relevant in proving the existence of fact B or has no probative value in that behalf and yet a rule is made prescribing for a rebuttable or an irrebuttable presumption in that connection that rule would be a rule of substantive law and not a rule of evidence as has been held in case of Ashok Leland Ltd. vs. State of Tamil Nadu and Anothers, AIR 2004 SC 2836, P.2853.
In view of aforesaid discussion, it is evident that when the extent of exclusion is tested on the touch stone of the provisions contained in U.P. Consolidation of Holdings Act, 1953, it is evident that its aim and object is different, it is a procedural law, and does not determine the substantive rights. Therefore, the evidence led for the purposes of a procedural law cannot be used for determining the substantive rights flowing from the Will, therefore, the contention of the appellant that the Will should have been deemed to be proved in view of the evidence led before the consolidation authority is of no avail and therefore, I have no hesitation to hold that the learned Trial Court has rightly allowed the plaint and has cancelled the Will which has been rightly affirmed by the learned First Appellate Court and such findings do not give rise to any substantial question of law. Before parting it is also important to observe that there is no evidence on record to show that plaintiff, wife of Jagdish was a party before the consolidation authorities.
Thus, appeal fails and is accordingly dismissed.
Order Date :- 28.01.2020 Vikram/Ashutosh