Allahabad High Court
Kaushlendra Singh And Another vs D.D.C. And Other on 22 October, 2019
Equivalent citations: AIRONLINE 2019 ALL 1849, (2020) 1 ADJ 364 (ALL)
Author: Salil Kumar Rai
Bench: Salil Kumar Rai
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. RESERVED ON 24.4.2019 DELIVERED ON 22.10.2019 Court No. - 19 Case :- WRIT - B No. - 42910 of 1992 Petitioner :- Kaushlendra Singh And Another Respondent :- D.D.C. And Other Counsel for Petitioner :- A.B.L. Gaur,Dr. H.N. Tripathi,K.S. Mishra,P.K.Rai,S.K. Srivastava,Sanktha Rai Counsel for Respondent :- S.C.,H.M.B.Sinha,Manish Nigam,Rahul Sahai WITH Case :- WRIT - B No. - 36376 of 1992 Petitioner :- Mahavir Singh And Others Respondent :- D.D.C And Others Counsel for Petitioner :- Manish Kumar Nigam Counsel for Respondent :- S.C.,A B L Gour,Dr. H.N. Tripathi,K B L Gour,K S Mishra Hon'ble Salil Kumar Rai, J.
1. As Writ-B Nos. 42910 of 1992 and 36376 of 1992 arise out of the same consolidation proceedings, therefore they were connected by order of this Court and have been heard together and are being decided through a common judgement.
2. The respondent Nos. 4 and 5 in Writ-B No. 36376 of 1992 are petitioners in Writ-B No. 42910 of 1992 and will hereinafter be referred as respondents and the petitioners in Writ-B No. 36376 of 1992 are respondent Nos. 4 to 8 in Writ-B No. 42910 of 1992 and will be referred as petitioners in the present judgement.
3. Heard Sri H.M.B.Sinha and Sri Manish Kumar Nigam for the petitioners as well as Sri H.N.Tripathi for the respondents. Written arguments were also filed by the counsel for the parties which are part of the records.
4. The writ petitions have been filed challenging the order dated 6.4.1988 passed by the Consolidation Officer (hereinafter referred as C.O.) in Case nos.1107, 1108 and 1109 registered under Section 9-A(2) of the Uttar Pradesh Consolidation of Holdings Act, 1953 (hereinafter referred to as, 'Act, 1953'), the order dated 2.8.1989 passed by the Settlement Officer of Consolidation (hereinafter referred to as, 'S.O.C.') in Appeal Nos. 1004 and 1064 filed under Section 11(1) of the Act, 1953 and order dated 25.8.1992 passed by the Deputy Director of Consolidation (hereinafter referred to as, 'D.D.C.') in Revision Nos. 3059 and 3112 filed under Section 48 of the Act, 1953.
5. The facts of the case are that Pirmal Singh was the common ancestor of the parties. Karan Singh was the son of Pirmal Singh. Smt. Uma Devi was the wife of Karan Singh. Karan Singh had four sons Satyavir Singh, Dharamvir Singh, Mahavir Singh and Rajvir Singh. Smt. Uma Devi was the fifth wife of Karan Singh and the aforesaid four sons of Karan Singh were the step-sons of Smt. Uma Devi. The details of other four wives of Karan Singh are not relevant.
6. Satyavir Singh had two sons Keshvendra Singh, i.e., petitioner No. 5 and Kaushlendra Singh, i.e., respondent No. 4. Satyavir Singh, who was the eldest son of Karan Singh, died during the life time of Karan Singh and at the time of his death Kaushlendra Singh, i.e., respondent No. 4 was aged about two years. Smt. Vishnu Kumari Devi was the widow of Satyavir Singh and the mother of petitioner No. 5 and respondent No. 4. Smt. Vidyawati, i.e., respondent No. 5 is the wife of Kaushlendra Singh, i.e., respondent No. 4. Dharamvir Singh had one son Dinesh Singh, who was married to Smt. Rajrani, i.e., petitioner No. 3 and had one daughter namely Rekha Rani, i.e., petitioner No. 4. It appears that Dharamvir Singh had died before filing of the present writ petitions. The other two sons of Karan Singh, i.e., Mahavir Singh and Rajvir Singh are petitioner Nos. 1 and 2 in Writ-B No. 36376 of 1992. The aforesaid pedigree is admitted by the parties. In Writ-B No. 42910 of 1992, the respondents have stated that Smt. Uma Devi died issueless. However, the said fact appears to be incorrect. It is apparent from the records that Smt. Uma Devi had a daughter named Bhuttan.
7. It is admitted by the parties that through a family settlement dated 3.1.1951, the estate of Karan Singh was divided into five parts whereby three surviving sons of Karan Singh namely Dharamvir Singh, Mahavir Singh and Rajvir Singh got one part each and petitioner No. 5 and respondent No. 4 got one part jointly. One part was retained by Karan Singh and Smt. Uma Devi for themselves. Uma Devi became a co-tenure holder with Karan Singh in the share which they retained for themselves in the family settlement. It is also the admitted case of the parties that the family settlement was acted upon and the parties had settled on the shares allotted to them in the family settlement. The dispute in the present writ petitions is regarding devolution of the share of Karan Singh and Smt. Uma Devi (hereinafter referred to as, 'disputed plots').
8. Karan Singh died on 4.11.1971. After the death of Karan Singh, proceedings were instituted by the parties under Section 34 of the Uttar Pradesh Land Revenue Act, 1901 (hereinafter referred to as, 'Act, 1901') for mutation in the revenue records in place of Karan Singh. The respondents claimed exclusive rights over the share of Karan Singh on the basis of a Will dated 7.6.1970 executed in their favour by Karan Singh. After the death of Karan Singh, there was some dispute between the respondents and Smt. Uma Devi also and consequently proceedings under Section 145 Code of Criminal Procedure, 1973 (hereinafter referred to as, 'Cr.P.C.') were registered. Smt. Uma Devi also died on 28.12.1972 and mutation proceedings were instituted by the parties wherein the respondents again claimed exclusive rights over the share of Smt. Uma Devi on the basis of a Will dated 20.6.1972 allegedly executed by Smt. Uma Devi. The petitioners deny the Wills dated 7.6.1970 and 20.6.1972 alleging that the Wills are forged documents. The petitioners claim share in the disputed plots by succession under Section 171 of the Act, 1950. In the mutation proceedings registered after the death of Karan Singh, Uma Devi admitted the will dated 7.6.1970. In the mutation proceedings, the petitioners filed expert evidence to prove their contention that the signatures of Karan Singh did not match his signatures on other documents provided to the expert by the petitioners. Other than the aforesaid two facts, the other details of the proceedings registered under Section 34 are not relevant to decide the present writ petitions. The proceedings registered under Section 34 abated because of a notification dated 29.1.1982 issued under Section 4 of the Act, 1953. Subsequently, the parties got Case Nos. 1107, 1108 and 1109 under Section 9-A(2) of the Act, 1953 registered before the C.O. Before the C.O., the respondents also alternatively pleaded that, after the death of Karan Singh, by virtue of the Will dated 7.6.1970, they became co-tenure holders of the disputed plots with Smt. Uma Devi and therefore after the death of Smt. Uma Devi her share passed to the respondents by survivorship under Section 175 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as, 'Act, 1950'). Apparently, the main issues in the consolidation proceedings was regarding the validity of the wills dated 7.6.1970 and 20.7.1972 and whether the share of Uma Devi in the dispute plots would pass to the respondents by survivorship under Section 175 or it would devolve on the heirs of Karan Singh by succession under Section 171 of the Act, 1950.
9. In proceedings before the C.O., Subedar Singh, Gaidan Lal and Tula Ram as well as the respondent No. 4 himself appeared as witness to prove the case of the respondents. Subedar Singh, Gaidan Lal and Tula Ram were the attesting witnesses of the Will dated 7.6.1970. Karan Singh had also executed a registered power of attorney in favour of Subedar Singh and Subedar Singh had got the Will dated 7.6.1970 registered on 12.6.1970. In the consolidation proceedings, the respondents also filed the copy of the objections of Uma Devi submitted in mutation proceedings wherein she had admitted the will dated 7.6.1970. The petitioners filed a copy of the expert report submitted by them in the mutation proceedings referred above. It appears from the records that despite time having been granted to the respondents by the C.O. to file expert evidence, they did not file any expert evidence to prove the signature of Karan Singh on the will dated 7.6.1970.
10. The consolidation courts, vide their impugned orders, have accepted the Will dated 7.6.1970 and thereby the claim of the respondents regarding devolution of the share of Karan Singh as, in the opinion of the consolidation courts, the execution of the Will had been duly proved by its attesting witnesses. The consolidation courts rejected the Will dated 20.6.1972 propounded by the respondents on the ground that the execution of the said Will was surrounded by suspicious circumstances which were not dispelled by the respondents. However, the C.O. vide his order dated 6.4.1988 allowed the claim of the respondents over the share of Uma Devi. The S.O.C, through his order dated 2.8.1989, reversed the order dated 6.4.1988 passed by the C.O. so far as it accepted the claim of the respondents over the share of Uma Devi. In his order dated 2.8.1989, the S.O.C. held that the disputed plots were not acquired by Uma Devi but were the property of Karan Singh and Uma Devi got a share in the disputed plots being the wife of Karan Singh and thus, after the death of Uma Devi, by virtue of Section 172 of Act, 1950 her share shall devolve on the nearest surviving heir of the last male bhumidhar as provided in Section 171 of the Act, 1950. The order of the S.O.C. has been affirmed by the D.D.C. through his order dated 25.8.1992.
11. Writ-B No. 36376 of 1992 has been filed challenging the orders dated 6.4.1988, 2.8.1989 and 25.8.1992 passed by the C.O., S.O.C. and the D.D.C. respectively whereby the consolidation courts have accepted the Will dated 7.6.1970 and thereby the claim of the respondents regarding devolution of share of Karan Singh in the disputed plots. Writ-B No. 42910 of 1992 has been filed challenging the orders dated 2.8.1989 and 25.8.1992 passed by the S.O.C. and the D.D.C. so far as the consolidation courts have held that the share of Smt. Uma Devi in the disputed plots shall devolve under Section 171 of the Act, 1950 and have thereby rejected the exclusive claim of the respondents over the share of Uma Devi. It is relevant to note that in Writ-B No. 42910 of 1992, the respondents have not challenged the findings of the consolidation courts rejecting the Will dated 20.6.1972.
12. At this stage, in order to appreciate the dispute between the parties and the argument of the counsel for the petitioners challenging the findings of the consolidation courts regarding the Will dated 7.6.1970, it would be appropriate to record, even at the cost of repetition, certain facts regarding the Will dated 7.6.1970. It is the admitted case of the parties that, on 7.6.1970, Karan Singh was suffering from paralysis. It is not the case of the petitioners that, on 7.6.1970, Karan Singh was not physically capable to sign documents or that he was mentally incapable of understanding the contents of the documents signed by him. On 7.6.1970, Karan Singh had also executed a power of attorney in favour of Subedar Singh and a sale deed and the records do not show that the petitioners had raised any doubts on the execution of the sale deed. Subedar Singh was the work agent/manager (referred as ''Kaarinda' in the different documents annexed with the writ petitions) of Karan Singh. The power of attorney was registered on 7.6.1970 itself by the Registering officer at the residence of Karan Singh apparently under Section 31 of the Registration Act, 1908 (hereinafter referred to as, 'Act, 1908') in pursuance to a process issued to the registering officer on an application dated 5.6.1970 filed for the said purpose. The Will was prepared on 15.2.1970 but was signed by Karan Singh on 7.6.1970. However the will was not registered on 7.6.1970 but was submitted for registration on 12.6.1970 by Subedar Singh on the strength of the power of attorney executed in his favour by Karan Singh.
13. Subedar Singh, Gaidan Lal and Haridwari Lal were the attesting witnesses of the Will and Shankar Dayal was the scribe of the Will. It is the admitted case of the parties that Satyavir Singh had died during the life time of Karan Singh and respondent No. 4 was an infant of about two years of age when Satyavir Singh died. The Will acknowledges the Family Settlement dated 30.1.1951 and the fact that the family members had settled on the shares allotted to them in the family settlement. There is a recital in the Will that the respondents took care of the deceased in his old age and the deceased was satisfied with the behaviour of the respondents towards him. The name of the attesting witnesses of the Will is not entered in The Index Book-3, i.e., the Register of Wills maintained in the office of the Registering Officer. There is some evidence indicating that after the death of his father Satyavir Singh, Kaushlendra Singh, i.e. respondent No. 4, stayed with his grand father and step grand mother, i.e., Karan Singh and Smt. Uma Devi and was brought up by them, though the reliability of the evidence is contested by the petitioners. In the Will the testator made no provision for the other three sons of Karan Singh and their heirs and petitioner No. 5. The respondents did not produce any expert evidence to prove the signatures of Karan Singh on the Will dated 7.6.1970 even though they had filed an application for the said purpose and several opportunities were given to the respondents by the C.O. to file the expert evidence.
14. It was argued by the counsel for the petitioners that the execution of the Will was surrounded by suspicious circumstances which were not dispelled by the respondents and, therefore, the respondents had failed to discharge the burden of proving the due execution of the Will. The counsel for the petitioners have referred to the following suspicious circumstances which, according to them, surrounded the execution of the Will and have not been explained by the respondents:-
(a) The Will was prepared on 15.2.1970 but was signed on 7.6.1970 and the gap of four months between preparing and signing the Will has not been explained by the respondents.
(b) There was no rationale behind getting the Will registered on 12.6.1970 in the Registrar office through a power of attorney holder and not on 7.6.1970 by Karan Singh himself at his residence even though the will was executed on 7.6.1970 and the registering officer was at the residence of Karan Singh on that date to register the sale-deed and power of attorney executed by Karan Singh. It has been argued that the application dated 5.6.1970 filed before the Registrar for registration of two documents at the residence of the deceased was disowned by Subedar Singh in his testimony before the C.O.
(c) There is no explanation by respondent No. 4 or his witnesses about the custody of the Will.
(d) The signatures of the attesting witnesses on the original Will do not contain the date on which the attesting witnesses had signed the Will.
(e) There were discrepancies in the statements of different witnesses produced by the respondents regarding the place where the Will was executed and time of the execution of the Will as well as regarding the persons who were present during the execution of the Will.
(f) The scribe of the Will was not produced as witness by the respondents.
(g) The Will excludes petitioner no. 5 without any reason which shows that the bequest was unnatural.
(h) The respondents did not file any expert evidence to prove the signatures of Karan Singh on the Will dated 7.6.1970 even though an application for the said purpose was filed by the respondents and opportunity for filing expert evidence was given to the respondents by the C.O.
(i) The expert evidence filed by the petitioners proved that the Will dated 7.6.1970 was not signed by Karan Singh and the respondents had not raised any objections regarding the specimen signatures of Karan Singh which was compared with his alleged signatures on the Will.
15. It was further argued by the counsel for the petitioners that the consolidation courts have not considered that even if the Will dated 7.6.1970 was accepted then the respondents get exclusive rights only on the property specified in the Schedule of the Will and not over the whole share of Karan Singh in the disputed plots. It was further argued by the counsel for the petitioners that the original Will was not produced before the C.O. and was in the custody of the Tehsildar. It was also argued by the counsel for the petitioners that the absence of any entry regarding the attesting witness in the Register of Wills kept in the office of the Registering Officer showed that the attesting witness had not signed/attested the Will till the date of its registration and the Will was signed by the attesting witness after its registration. It was argued that, for the aforesaid reasons, the consolidation courts have committed an error of law apparent on the face of record in accepting the claim of the respondents on the basis of the Will dated 7.6.1970 and thus the impugned orders passed by the consolidation courts are liable to be set aside.
16. Opposing Writ-B No. 42910 of 1992, the counsel for the petitioners have argued that admittedly the property was acquired by Karan Singh and not Smt. Uma Devi and, therefore, after the death of Uma Devi her share in the disputed plots shall devolve under Section 171 of the Act, 1950 and will not pass by survivorship under Section 175 of the Act, 1950 and the consolidation courts have not committed any illegality in rejecting the claim of the respondents regarding the share of Uma Devi in the disputed plots.
17. It was argued that for the aforesaid reasons, Writ-B No. 36376 of 1992 deserves to be allowed and Writ-B No. 42910 of 1992 is liable to be dismissed. In support of their arguments, the counsel for the petitioners have relied upon the judgements of the Supreme Court reported in S.R. Srinivasa and Others Vs. S. Padmavathamma (2010) 5 SCC 274, Balathandayutham and Another Vs. Ezhilarasan (2010 5 SCC 770, Bharpur Singh Vs. Shamsher Singh (2009) 3 SCC 687, Benga Behera Vs. Braja Kishore Nanda (2007) 9 SCC 428, B. Venkatamuni Vs. C.J. Ayodhya Ram Singh (2006) 13 SCC 449, Shashi Kumar Banerjee Vs. Subodh Kumar Banerjee AIR 1964 SC 529 and H.Venkatachala Iyengar Vs. B.N. Thimmajamma AIR 1959 SC 443.
18. Rebutting the arguments of the counsel for the petitioners, the counsel for the respondents has argued that the circumstances referred by the counsel for the petitioners are not suspicious circumstances surrounding the execution of the Will and in any case the respondents had explained and dispelled the alleged suspicious circumstances surrounding the execution of the Will. It was argued that the execution of the Will in accordance with law was proved by the testimony of its attesting witnesses and the findings of the consolidation courts are findings of fact based on evidence on record. It was argued that for the aforesaid reasons, the findings recorded by the consolidation courts regarding the Will dated 7.6.1970 are not amenable to interference by this Court under Article 226 of the Constitution of India. It was further argued by the counsel for the respondents that after the death of Karan Singh, the respondents became co-tenure holders of the disputed plots and therefore after the death of Uma Devi, her share shall devolve not by succession under Section 171 of Act, 1950 but pass to the respondents by survivorship under Section 175 of the Act, 1950 and the contrary opinion of the S.O.C. and the D.D.C. are vitiated by error of law apparent on the face of record. It was argued that for the aforesaid reasons, the judgements and orders dated 2.8.1989 and 25.8.1992 passed by the S.O.C. and the D.D.C. so far as they reject the exclusive claim of the respondents on the share of Uma Devi are contrary to law and are liable to be set aside. It was argued that for the aforesaid reasons, Writ-B No. 36376of 1992 is liable to be dismissed and Writ-B No. 42910 of 1992 deserves to be allowed. In support of his argument, the counsel for the respondents has relied on the judgement of the Supreme Court reported in Shalini Shyam Shetty and Another Vs. Rajendra Shankar Patil, 2010 (7) SCALE 428.
19. I have considered the rival submissions of the counsel for the parties.
20. At the outset, it would be appropriate to consider the argument of the counsel for the petitioners that by virtue of the Will dated 7.6.1970, the respondents became the sole-tenant only of the property mentioned in the Schedule of the Will and the consolidation courts erred in holding that the total share of Karan Singh in the disputed plots devolved on the respondents. The records available with the court are not sufficient to decide as to whether the total share of Karan Singh in the disputed plots was included in the Schedule of the Will or the Schedule included only a part of his share in the disputed plots. The argument of the petitioners raises disputed questions of facts which cannot be decided by examining only the documents annexed with the affidavits and pleadings filed by the parties. The impugned orders do not indicate that the argument was raised by the petitioners before the consolidation courts. There is no averment in the writ petition that the argument was raised by the petitioners before the consolidation courts. The controversy necessitates an inquiry into disputed questions of facts and, therefore, the petitioners cannot be permitted to raise the aforesaid argument for the first time in proceedings under Article 226 of the Constitution of India.
21. The contention of the petitioners that the original Will was not produced by the respondents in the consolidation courts is belied from the records. There is a recital in the order dated 2.8.1989 passed by the S.O.C. that the original Will was shown to the attesting witnesses who identified the signatures of the deceased on the Will and also testified to the execution of the Will. A reading of the order dated 25.8.1992 passed by the D.D.C. does not indicate that the petitioners had challenged the aforesaid recital and alleged that the recital in the order passed by the S.O.C. was contrary to the records of the case. There is no averment in the writ petition that the said plea was raised before the D.D.C. In fact, in his order dated 25.8.1992 the D.D.C. has also noticed that the original Will was shown to the attesting witnesses, who had identified the signatures of the deceased on the Will. In view of the aforesaid, the petitioners cannot be permitted to raise the argument for the first time in proceedings under Article 226 of the Constitution of India.
22. Thus, the issues that arise for consideration in the present writ petitions are whether the evidence on record support the findings of the consolidation courts that the Will dated 7.6.1970 was executed according to law or the consolidation courts have not considered the suspicious circumstances allegedly surrounding the execution of the Will and the findings of the consolidation courts regarding the due execution of the Will are perverse and vitiated due to non-consideration of relevant factors and evidence so as to occasion interference by this court in proceedings under Article 226 of the Constitution of India as well as whether the share of Uma Devi shall pass by survivorship under Section 175 of the Act, 1950 or would devolve by succession under Section 171 of the Act, 1950.
23. The law relating to the proof of Wills is no more res integra and it would be appropriate to summarise, at this stage, the law relating to the proof of Wills as laid down in the different judgements of the Supreme Court including the judgements referred by the counsel for the petitioners and the law as evident from the different statutory provisions relating to proof of wills.
24. The burden to prove the due execution of the Will is on the propounder of the Will. Will is a document and the mode of proving a Will is the same as that of proving any other document except as to the special requirements prescribed under Section 63 of the Indian Succession Act, 1925 (hereinafter referred as ''Act, 1925') and Section 68 of the Indian Evidence Act, 1872 (hereinafter referred to as ''Act, 1872'). Like any other document of title, a will has to be proved by primary evidence as defined under Section 62 of the Act, 1872 except in the circumstances mentioned in Section 65 when secondary evidence can be given of the existence, contents or condition of a document. Section 67 of the Act, 1872 prescribes that if the document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting. The opinion of experts and of any person who is acquainted with the handwriting of the person alleged to have signed the document are relevant evidence under Sections 45 and 47 of Act, 1872 to prove or disprove the disputed signatures on the document. Section 73 provides that in order to ascertain whether the disputed signature was that of the person by whom it purports to have been made, the disputed signature may be compared with the admitted or proved signature of the said person. The evidentiary value of an expert opinion shall be considered later in the judgement. At this stage it is sufficient to state that expert opinion is not conclusive and calling an expert is only one of the many modes available to a party to prove or disprove any disputed signature. The disputed signatures can also be proved by the oral testimony of a person who has seen the executant sign the document.
25. Section 63 of the Act, 1925 prescribes the manner in which unprivileged wills shall be executed. It provides that the testator shall sign or affix his mark to the will and the signature or mark shall be so placed that it shall appear that it was intended thereby to give effect to the writing of the will and 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 received from the testator a personal acknowledgement of his signature or mark 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. Under section 68 of the Act, 1872 a Will shall not be used as evidence unless one attesting witness at least is called for the purpose of proving the execution of the will if there be an attesting witness alive and subject to the process of the court and capable of giving evidence. The requirements prescribed in Section 68 are applicable to all documents which by law are required to be attested but the Proviso to Section 68 exempts from its purview the documents, except wills, which have been registered in accordance with the provisions of Act, 1908 unless the execution of the document has been specifically denied by the person by whom it purports to have been executed. If the attesting witness called to prove the execution of the will denies or does not recollect the execution of the will, then by virtue of Section 71 of Act, 1872, the will can be proved by other evidence. Where no attesting witness, as specified in Section 68, can be found then it must be proved that the attestation of one attesting witness at least is in his handwriting and that the signature of the person executing the will is in the handwriting of that person (Section 69 of Act, 1872). A reading of Sections 68, 69 and 71 of the Act, 1872 shows that the attesting witness of the will, if he is alive and subject to the process of the court and capable of giving evidence, is the best witness to prove the due execution of the will and the propounder of the will may not be required to produce any other evidence to prove the due execution of the will if it has been proved by the attesting witness and the testimony of the witness is found reliable by the concerned court.
26. The propounder of the will has to prove the ingredients of Section 63 of the Act, 1925, i.e., the propounder has to prove that the testator had signed the will in the presence of the attesting witnesses or had acknowledged his signatures on the document to the attesting witnesses and the attesting witnesses had signed in the presence of the testator. The propounder of the will has to also prove that the testator was at the relevant time in a sound and disposing state of mind and had signed the will with the knowledge of the contents of the will and understood the nature and effect of the dispositions. Once the aforesaid ingredients are proved, the onus which rests on the propounder is discharged and the courts would be justified in returning a finding in favour of the propounder of the Will.
27. Section 61 of the Act, 1925 provides that a will obtained by fraud or coercion or by such importunity as takes away the free agency of the testator is void. The burden to prove that the will was obtained by fraud, coercion or undue influence or is a forged document is on the person who pleads fraud, coercion, undue influence or forgery because the burden of proof as to any particular fact lies on the person who pleads the existence of those facts (Section 103 of Act, 1872). However, there may be cases where the execution of the will may be surrounded by suspicious circumstances, i.e., circumstances which excite the suspicion of the court and suggest that the dispositions were not the result of the testator's free will and mind. In such cases the initial onus on the propounder of the will is heavy and the courts would scrutinise the evidence with special care and the action instituted on the basis of the Will would succeed only when the court is fully satisfied that the Will had been validly executed by the testator. It is not possible to define with exactness or exhaustively list the suspicious circumstances surrounding the execution of a will. That would be a question depending on the facts and circumstances of the case. Each case has its own characteristics and there can be no definitive test to determine whether a circumstance is a suspicious circumstance. But the circumstances which excite the suspicion of the court persuading it to scrutinise the evidence more strictly should be inherent in the transaction itself and must be circumstances attending, or at least relevant, to the preparation and execution of the will itself. Doubts which arise either from a conflict of testimony or because of discrepancies in testimonies of different witnesses during the trial are not suspicious circumstances surrounding the execution of the will.
28. Further, courts do not decide a case on suspicion but on evidence adduced by the parties. A court will not close its mind to the truth and where the propounder through evidence before the court removes the suspicious circumstances and affirmatively proves that the will was executed by the testator and was the result of his free will, the evidence would not be lightly set aside on the theory of improbability and the propounder would succeed even if the will was unnatural. As observed by Lord Du Parcq in Harmes Vs. Hinkson [(1946) 50 CWN 895] "where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth".
29. Whether the testator had proved the due execution of the will and that the will was the result of free will of the testator and, where suspicious circumstances surround the execution of the will, whether the propounder has succeeded in removing by satisfactory evidence the suspicion from the mind of the court depends on the nature and quality of the evidence adduced by the parties. Eash case has to be decided on its own facts. Apparently the findings recorded by courts about the genuineness of a will are essentially factual and depend on the weight put by the courts on a particular evidence. Thus, in such cases, the High Court under Article 226 of the Constitution of India can interfere in the findings of the courts of facts only on limited grounds, i.e., when the findings of the lower courts are perverse or the courts have failed to consider any material evidence or have relied on inadmissible and irrelevant evidence or where the findings are without any evidence. The writ courts can not interfere in the findings of facts recorded by the lower courts merely because another view is possible on the same set of evidence.
30. The dispute in the present case shall be considered in the light of the above stated propositions.
31. Subedar Singh, Tularam and Gaidan Lal were the attesting witnesses of the Will. The original Will was shown to Gaidan Lal and Tularam who testified to the fact that the Will was read over to the testator who understood its contents and signed the Will in presence of the attesting witnesses and, after the testator had signed the Will, the attesting witnesses also signed the will in presence of the testator. The original Will was shown to the witnesses who identified the signatures of the testator on the Will. The witnesses proved the execution of the Will as required by Section 63 of the Act, 1925. There is nothing to show that the attesting witnesses were interested witnesses. At this stage, it would be relevant to note that before the D.D.C., the petitioners had challenged the testimony of the witnesses on the ground that the witnesses were interested witnesses but the plea was rejected by the D.D.C. and the said plea has not been raised by the petitioners in their arguments before this court. Gaidan Lal had categorically stated in his testimony that he was not present when the Will was prepared but the Will was read over to the testator in the presence of the witness. The testimony matches with the fact that the Will was prepared on 15.2.1970 but was signed by the testator on 7.6.1970. The consolidation courts have, amongst other evidence, considered the testimony of Gaidan Lal and Tularam while holding that the due execution of the Will was proved. The consolidation courts found the said witnesses and their testimony reliable. The execution of the Will was also admitted by Uma Devi in the mutation proceedings registered after the death of Karan Singh and the consolidation courts have considered the said admission while recording a finding that the due execution of the Will was proved. There is no perversity in the findings of the consolidation courts. The fact that the scribe was not produced as a witness to prove the Will is not a suspicious circumstance surrounding the execution of the Will. There is no requirement to produce the scribe as a witness to prove the Will when the due execution of the Will is proved by its attesting witness.
32. Similarly, the fact that there were certain discrepancies in the testimonies of different witnesses regarding the place at which the Will was executed or the time when the will was executed and the persons who were present during the execution of the Will relates to the memory of the witnesses. The discrepancies in the testimonies of different witnesses produced to prove a Will or even conflicting testimonies of the different witnesses are not suspicious circumstances surrounding the execution of the Will. The discrepancies in the testimonies of different witnesses or conflicting testimonies are relevant for courts of fact while deciding the reliability of a witness and the weight of a particular testimony. The reliance to be placed on the testimony of a witness and the weight of a testimony are in the realm of appreciation of evidence and do not normally give rise to any question of law so as to occasion consideration by a writ Court. Apart from the aforesaid, certain discrepancies and contradictions in the testimonies of the witnesses produced by the respondents were natural considering the fact that the witnesses were testifying almost 14-15 years after the execution of the Will.
33. The fact that the attesting witnesses did not record the date on which they attested the Will is also not a suspicious circumstance surrounding the execution of the Will. Section 63 of the Act, 1925 does not require the attesting witnesses to record the date of their signatures on the Will. In fact, Section 63 provides that no particular form of attestation shall be necessary. No statutory provision or judicial precedent has been brought to the notice of the Court requiring the attesting witnesses to record the date below their signatures on the Will.
34. The fact that the Will was prepared on 15.2.1970, but was signed on 7.6.1970 has been considered by the C.O. in his order dated 6.4.1988. In his order dated 6.4.1988, the C.O. has held that the said fact indicated that the deceased, before executing the Will, had sufficiently deliberated over its contents. The gap of four months between preparing and executing the Will cannot be considered to be a suspicious circumstance surrounding the execution of the Will unless it is shown that the propounder of the Will had taken active part in the execution of the Will and the participation of the propounder of the Will had affected the exercise of free will by the testator. The evidence does not show that the respondents, i.e., the beneficiaries of the Will, had taken any part in the execution of the Will.
35. So far as the argument of the petitioners that the respondents have not explained the custody of the Will is concerned, it is sufficient to note that in his testimony before the C.O. the respondent No. 4 had categorically stated that he had no knowledge of the Will during the life time of his grand father Karan Singh and came to know about the Will from Uma Devi after the death of his grand father. In his testimony, the respondent no. 4 has also stated that his grand mother, Uma Devi, gave him the Will after the death of Karan Singh.
36. It was argued by the counsel for the petitioner that the Will is unnatural because it deprives the petitioner no. 5 of a share in the property of the deceased and no reasons have been given to exclude petitioner no. 5 in the Will. Petitioner no. 5 and respondent no. 4 are brothers and sons of Satyavir Singh, the eldest son of the testator. Satyavir Singh died during the life time of his father. It was contended that in such a situation the testator would have developed sympathy and affection for both petitioner no. 5 and respondent no. 4. It was argued that, in the circumstances, the exclusion of petitioner no. 5 in the Will indicates an unjust and unfair disposition of his property by the deceased which is a suspicious circumstance surrounding the execution of the Will. It was argued that the respondents have not dispelled the aforesaid suspicious circumstance. For reasons to be stated presently the argument of the counsel for the petitioners cannot be accepted. The respondent No. 4 was an infant when his father died. There is evidence indicating that after the death of his father, respondent No. 4 was brought up by Karan Singh and Uma Devi. The counsel for the petitioner has not brought to the notice of the court any evidence which indicates that after the death of his father, petitioner no. 5 also stayed with his grandfather and was brought up by him. It is recorded in the Will that respondent Nos. 4 and 5 took care of the deceased in his old age and during his illness and the deceased was pleased with their behaviour towards him.The Will also refers to the family settlement and to the fact that the sons of the deceased had settled on the shares allotted to them in the family settlement. During the mutation proceedings registered after the death of Karan Singh, Uma Devi had also testified that during his lifetime the deceased conferred with respondent No. 5 and did not confer with Uma Devi. It may be noticed that, in the Will, the deceased explained the bequest by reference to the conduct of the respondents and his own resultant contentment as well as to the family settlement and did not explain it by reference to the death of his eldest son and to the consequent misfortune of his grandsons, i.e., the respondent no. 4 and petitioner no. 5. There are conflicting evidence regarding the residence of the respondents. The evidence filed by the respondents indicate that the respondents lived with the testator while the evidence filed by the petitioners indicate that the respondents lived separately and not with the testator. It is not for this court, exercising its power under Article 226 of the Constitution of India, to sift the different evidence adduced by the parties. It is sufficient to note that there is enough evidence to suggest that the deceased was more attached to the respondents than he was to the petitioners and because his other sons had already separated after taking their shares in the family settlement, the deceased decided to bequeath his share in the disputed plots to the respondents and there is no perversity in the orders of the consolidation courts accepting the Will even though it excludes the petitioner no. 5. A Will disturbs the line of succession but cannot be invalidated merely on that ground. A Will cannot be rejected only on the ground that it provides for one heir but excludes another heir of equal degree.
37. At this stage it would be appropriate to refer to the judgement of the Supreme Court reported in H.Venkatachala Iyengar (Supra) which was relied upon by the counsel for the petitioners to support their argument that the Will was liable to be rejected because it excludes the other heirs of the deceased, especially the respondent no. 5. In H.Venkatachala Iyengar (Supra), the testatrix had made a bequest in favour of the sons of her adopted brother and had not given any share to her own grand-children and certain claims made in the Will were found to be incorrect. Apart from the aforesaid suspicious circumstances the court found that the value of the property given by the testatrix to her grand-children during her life time was much less than the property involved in the bequest and there was no suggestion that the relations between the testatrix and her grand children were not cordial. The father of the beneficiaries of the will, i.e., the adopted brother of the testatrix, had joined the family after the testatrix was married and the records did not show that the testatrix was on such affectionate terms with her adopted brother so as to make a bequest to his sons excluding her own grand-children. Apart from the aforesaid, the adopted brother of the testatrix had taken active part in the preparation of the Will and there was no independent evidence to prove that the will was consistent with the instructions given by the testatrix and the attesting witness was not able to recollect as to whether the whole of the Will was read out to the testatrix before he put the attesting signature. It was the cumulative effect of the aforesaid circumstances that persuaded the Supreme Court to reject the Will after holding that the due execution of the will had not been proved. The will was not rejected only on the ground that the testatrix had not given any share to her grand-children. Every case has to be determined with reference to its own facts. The fact that the natural heirs have been deprived of a share in the property of the deceased by itself is not a suspicious circumstance but is only one of the relevant factor which has to be taken into consideration while deciding whether the disposition was the result of free will and mind of the testator. In the present case, there is evidence to suggest that the testator was attached to the respondents and was on affectionate terms with them and no recital in the will has been proved to be wrong. Further, in the present case, the attesting witnesses have proved the due execution of the will and there is nothing to show that the testator did not act on his free will and volition while executing the Will. The most significant aspect of the present case is that Uma Devi, who had contested proceedings under Section 145 Cr.P.C. against the respondents and was not on good terms with the respondent no. 4, had admitted the will dated 7.6.1970.
38. The counsel for the petitioners argued that the failure of the respondents to file expert evidence to prove the signatures of the deceased on the Will was also a suspicious circumstance. It was further argued by the counsel for the petitioners that the report of the handwriting expert filed by the petitioners proved that the signature on the Will was not the signature of the deceased, and therefore, the Will was a forged document. It was argued that the consolidation courts have not considered the aforesaid factors and materials and, therefore, the impugned orders passed by the consolidation courts are vitiated due to non-consideration of relevant factors and materials and are liable to be set aside. Section 67 of the Indian Evidence Act, 1872 provides that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. The provision does not lay down any particular mode of proof for proving the signature of the person whose signatures are disputed. The signature of a person on a document can be proved by calling the person who has allegedly signed the document or by calling the person in whose presence the document was signed or by producing as witness a person who is acquainted with the handwriting of the person who has allegedly signed the document or by comparing, in court, the disputed signatures with some admitted signatures of the executant or by calling a handwriting expert. Calling an expert to prove or disprove a fact alleged is only one of the many modes of proof and it is not mandatory to call an expert to prove or disprove the facts alleged. In The State of Gujarat Vs. Vinay Chandra Chhota Lal Pathi (AIR 1967 SC 778), the Supreme Court observed that, "the opinion of a handwriting expert is also relevant in view of S. 45 of the Evidence Act, but that too is not conclusive. It has also been held that the sole evidence of a handwriting expert is not normally sufficient for recording a definite finding about the writing being of a certain person or not. It follows that it is not essential that the handwriting expert must be examined in a case to prove or disprove the disputed writing" (Paragraph 10 of the reports). The ''opinions based on comparison of handwritings and signatures are indecisive and must yield to positive evidence in the case' (see Sri Sri Kishore Chandra Singh Deo Vs. Ganesh Prasad Bhagat and others AIR 1954 SC 316 (paragraph 7). The execution of a document is a question of fact and can be proved like any other fact by oral evidence of a competent witness, except that in matters relating to proof of Wills the requirements of Section 68 of Indian Evidence Act, 1872 have to be satisfied. Further, the report of the expert by itself proves nothing and the report is not a substantive piece of evidence. The expert has to appear as a witness in the court and state his opinion in the court. The expert has to be examined and cross-examined like any other witness. The opinion of the expert cannot be read in evidence if the opposite party is not given any opportunity to cross-examine the expert. Further, Section 73 of the Act, 1872 provides that in order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. Thus, any opinion of the handwriting expert has to be based on the comparison of the disputed signatures with any admitted or proved signature of the person whose signatures are being disputed.
39. In the present case the respondents did not produce any expert to prove the signatures of the deceased on the Will but the execution of the Will was proved by the testimony of its attesting witnesses and by other evidence. The statutory requirements as prescribed in the Act, 1872 and Act, 1925 to prove a Will had been satisfied by the respondents and there is sufficient evidence to support the findings of the consolidation courts that the Will was duly executed. The orders of the consolidation courts cannot be set aside on the ground that the beneficiary of the Will did not produce any expert evidence to prove the signatures of the deceased on the Will.
40. The expert report filed by the petitioners compared the signatures of the deceased on the Will dated 7.6.1970 with his alleged signature on some Vakalatnama filed in a case instituted by one Chandrakanta Devi against the Gaon Sabha. The said fact is evident from the order dated 25.8.1992 passed by the D.D.C. The signature of the deceased on the Vakalatnama was not admitted by the respondents and was also not proved by the petitioners. Further, it is apparent from the records that the expert report filed by the petitioners was a copy of the report submitted by the expert in mutation proceedings registered after the death of the testator. There is nothing on record to show that the expert was produced as a witness by the petitioners in the consolidation courts or that the respondents had any opportunity to cross-examine him. In view of the aforesaid the expert report filed by the petitioners cannot be considered to be a substantive evidence and could not have been read in evidence by the consolidation courts and the consolidation courts did not commit any error in not relying on the expert report filed by the petitioners.
41. The last argument of the counsel for the petitioners relates to the registration of the Will and the entries in the Register of Wills maintained in the office of the Registering officer. It was argued by the counsel for the petitioner that no explanation has been given by the respondents as to why the testator himself did not get the Will registered on 7.6.1970 itself even though two other documents executed by the testator were got registered by him on the same date and the fact that the Will was not registered on 7.6.1970 indicates that the Will was not executed by the deceased and was a forged document. It is apparent from the records that on 7.6.1970 the deceased had executed a power of attorney in favour of Subedar Singh and a sale-deed. The said documents were registered at his residence on 7.6.1970 itself. It is also apparent from the records that the Registering Officer registered the aforesaid documents at the residence of the deceased under Section 31 of the Act, 1908 in pursuance to a process issued to the Registering Officer. The process was issued for registering the sale deed and the power of attorney executed by the deceased and, therefore, the registering officer could not have registered any other document at the residence of the deceased on 7.6.1970 because under Section 31 of the Act, 1908 a document is to be ordinarily registered at the office of the officer authorised to register the document. The process was issued on an application filed on 5.6.1970. In his testimony before the C.O., Subedar Singh had stated that the Registering Officer was also requested to register the Will dated 7.6.1970 but he refused to register the Will on the ground that the process had been issued only to register the power of attorney and the sale-deed executed by Karan Singh. The fact that there is some controversy regarding the person who filed the application dated 5.6.1970 is not relevant to decide the due execution and the attestation of the Will dated 7.6.1970 inasmuch as the said application was not for registering the Will dated 7.6.1970 and the application is not relevant to decide any controversy regarding the non-registration of the Will dated 7.6.1970. The registration of a Will is not mandatory under Section 17 of the Act, 1908 and therefore the fact that no application was filed for registration of the said Will does not raise any suspicion regarding the due execution of the Will. The absence of any application under Section 31 of the Act, 1908 for registering the Will at the residence of the deceased may also indicate that the propounder of the Will had not played any role in preparing the Will and had no knowledge of it. Apart from the aforesaid, the Will was submitted for registration on 12.6.1970 by Subedar Singh who is not a beneficiary of the Will dated 7.6.1970. The evidence on record do not suggest any role of the respondents in the registration of the Will and also do not indicate any collusion or personal attachment between Subedar Singh and the beneficiaries of the Will. Subedar Singh was the work agent/manager of the deceased and there is nothing on record to indicate that Subedar Singh had any affection for the beneficiaries of the Will. Thus, the fact that the Will was not registered on 7.6.1970 cannot be a reason to reject the Will.
42. It was further argued by the counsel for the petitioners that the name of the attesting witnesses was not recorded in the Register of Wills maintained in the office of the Registrar. It was argued that the aforesaid fact shows that the Will was signed by the attesting witnesses after the document was registered by the Registering Officer. It was argued that apparently the deceased had not executed the document in the presence of its attesting witnesses and the attesting witnesses had also not put their signatures in the presence of the testator and thus the Will was not executed in accordance with law. The argument cannot be accepted. A Will is registered under Section 41 of the Act, 1908 after the Registering Officer is satisfied that the Will was duly executed by the testator. The registration of a document is an official act by a public authority and official acts are presumed to have been regularly performed. It is sufficient to note that the petitioners have not brought any fact or evidence either to the notice of this Court or to the notice of the consolidation courts to rebut the aforesaid presumption. Gaidan Lal, one of the attesting witness of the Will, has stated in his testimony that he was present in the Registrar Office when the Will was submitted for registration. The entries in the Register of Wills maintained in the Registrar Officer are made after the registration of Will by the concerned Registering Officer and are ministerial acts and the fact that the name of the attesting witnesses is not recorded in the Register of Wills would not rebut the presumption regarding due registration of Wills. In any case, a reading of Section 55 of the Act, 1908 shows that the name of the attesting witnesses is not required to be recorded in the Register and only the name of the testator, the executor and the persons appointed under the Will or claiming under the Will are to be recorded in the Register of Wills. Apart from the aforesaid, the original Will was produced before the consolidation courts, who examined the same and found that the Will contained the signatures of the attesting witnesses.
43. In view of the reasons recorded above there is no perversity in the concurrent findings of the consolidation courts accepting the Will dated 7.6.1970 so as to justify any interference by this Court under Article 226 of the Constitution of India. The findings of the consolidation courts regarding the Will dated 7.6.1970 are concurrent findings of facts recorded after considering the evidence filed by the parties and are, therefore, not amenable to interference by this Court under Article 226 of the Constitution of India in view of the judgements of the Supreme Court in Hasan Ali and Others Vs. State of U.P. and Others, 1992 Suppl (2) S.C.C. 70 and Muneshwar (Dead) By Lrs. Vs. Raja Mohammad Khan and Others, (1998) 6 S.C.C. 582.
44. The case of the respondents against the orders dated 2.8.1989 and 25.8.1992 passed by the S.O.C. and the D.D.C. is that Uma Devi was a co-tenure holder of the disputed plots with Karan Singh. By virtue of the Will dated 7.6.1970, the share of Karan Singh devolved on the respondents and they, after the death of Karan Singh, became co-tenure holder of the disputed plots with Uma Devi. Thus, after the death of Uma Devi, her share in the disputed plots would pass by survivorship to the respondents under Section 175 of the Act, 1950. For reasons to be stated subsequently, the plea of the respondents cannot be accepted.
45. The Will dated 7.6. 1970 records that Uma Devi had a daughter named Bhuttan. The reference in the Will to the daughter of Uma Devi has not been denied by the respondents. The respondents have not challenged the statement of fact recorded in the will acknowledging the existence of the daughter of Uma Devi. The respondents claim through the Will dated 7.6.1970. It is also on record that Smt. Uma Devi had a sister with whom she stayed after the death of Karan Singh. Karan Singh was the original tenure holder of the disputed plots. Smt. Uma Devi became a co-tenure holder of the disputed plots with Karan Singh as a result of the Family Settlement dated 3.1.1951, which is admitted by the parties. Apparently Uma Devi was co-opted as a tenant in the disputed plots by Karan Singh and other family members. Uma Devi acquired interest in the disputed plots during the life time of Karan Singh and not after his death. Thus, Uma Devi did not acquire interest in the disputed plots as the widow of Karan Singh. Uma Devi does not belong to any category mentioned in Section 172 of the Act, 1950. Section 172 of the Act, 1950, so far as it is relevant for the present case, provides that on the death of a female Bhumidhar or asami, where the female bhumidhar or asami has acquired interest in the holdings as a widow, mother, grandmother, daughter, son's daughter, sister or half sister, her interest in the holdings shall devolve upon the nearest surviving heir of the last male tenant, such heir being ascertained in accordance with the provisions of Section 171 of the Act, 1950. Uma Devi did not acquire interest in the disputed plots as a widow, mother, grandmother, daughter, son's daughter, sister or half sister of the original tenure holder and, therefore, after the death of Uma Devi, her share will not devolve in accordance with Section 171 of the Act, 1950 upon the nearest surviving heir of the last male tenant, i.e., the heirs of Karan Singh. Thus, in any case, the petitioners have no claim over the share of Uma Devi. In their impugned orders dated 2.8.1989 and 25.8.1992, the S.O.C. and the D.D.C. have not considered the legal consequences of the family settlement dated 3.1.1951. The impugned orders also suffer from a fallacy in as much as if the interest of Uma Devi in the disputed plots was essentially the property of Karan Singh then her interest shall devolve on the respondents by virtue of the Will dated 7.6.1970 and not on the heirs of Karan Singh under Section 171.
46. The interest of Uma Devi in the disputed plots would devolve in accordance with Section 174 of the Act, 1950 as devolution on the death of a female bhumidhar or asami, other than a bhumidhar or asami mentioned in Section 171 and 172 of the Act, 1950, is governed by Section 174 of the Act, 1950. Under Section 175 of the Act, 1950 the interest of a co-tenure holder shall pass by survivorship only if the co-tenure holder dies leaving no heir entitled to succeed under the provisions of Act, 1950. It has been observed earlier that Smt. Uma Devi had a daughter and a sister. Daughter and sister have been listed as heirs in Section 174 of the Act, 1950. The observations of the court are based on what the records before this court disclose and there may also be other heirs of Uma Devi listed under Section 174 of the Act, 1950. In view of the aforesaid, the interest of Uma Devi in the disputed plots will not pass by survivorship to the respondents under Section 175 of the Act, 1950 but on her heirs in accordance with Section 174 of the Act, 1950. In view of the aforesaid, even the respondents have no claim over the share of Uma Devi. In his order dated 6.4.1988, the C.O. has not considered the effect of Section 174 of the Act, 1950 and the fact that the records disclosed that Uma Devi was survived by heirs specified in Section 174 of the Act, 1950.
47. It is not clear from the records as to whether, in the proceedings registered before the C.O. under Section 9-A(2) of the Act, 1953 notices were issued to the daughter or other heirs of Uma Devi listed in Section 174 of the Act, 1950 or whether any such heir was arrayed as a party in the said proceedings by the petitioners and the respondents. The Court is not inquiring into that aspect as the heirs of Uma Devi have not approached this court. Any decision in a dispute between the petitioners and the respondents is not binding on the heirs of Uma Devi and does not adversely affect their claim over the disputed plots. As the heirs of Uma Devi have not approached this court and are not parties in the present writ petitions, therefore, this court is not passing any order in their favour. However, because it is evident from the records that Uma Devi was survived by her heirs who were entitled to inherit her interest under Section 174 of the Act, 1950, the Court cannot accept either the plea of the petitioners that the interest of Uma Devi shall devolve according to Section 171 of the Act, 1950 or the plea of the respondents that the interest of Uma Devi shall pass by survivorship to them under Section 175 of the Act, 1950. In view of the aforesaid, the plea of the respondents that the interest of Uma Devi shall pass by survivorship to them under Section 175 of the Act, 1950 is rejected.
48. For the reasons stated above, the writ petitions lack merit and are dismissed.
Order Date :- 22.10.2019 Anurag/-