Allahabad High Court
Smt. Lal Dei vs State Of U.P. Thru. Registrar Birth And ... on 25 March, 2025
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2025:AHC-LKO:17082 Court No. - 8 Case :- WRIT - C No. - 13604 of 2019 Petitioner :- Smt. Lal Dei Respondent :- State Of U.P. Thru. Registrar Birth And Death Regisration Andors Counsel for Petitioner :- Pradeep Kumar Tiwari,Mohiuddin Khan Counsel for Respondent :- C.S.C.,Anurag Kumar Singh,Mohammad Aslam Khan,Vinod Kumar Yadav Hon'ble Jaspreet Singh,J.
Heard Sri Pradeep Kumar Tiwari learned counsel for the petitioner and Sri M.A Khan learned senior counsel along with Sri Shadab Khan learned counsel for the private respondent no.7.
The instant petition has been filed seeking following reliefs:
"(i) A writ, order or direction in the nature of certiorari for quashing the impugned order dated 22/24.10.2018 passed by the opposite party no.2 and its consequential order dated 13.11.2018 issued by the opposite party no.3 after summoning its original from their office, as well as order dated 08.12.2018 issued by the party no.4 including amended entry dated 10.12.2018 regarding death of petitioner's father, made by opposite party No.2 in petitioner's Pariwar Register, maintained under the U.P. Panchayat Raj Act (Maintenance of Family Registers Rules 1970) as contained in Annexure No.1 to the writ petition.
(ii) A writ, order or direction in the nature of Mandamus thereby commanding/directing the opposite parties no.2 to 5 to restore the entry of death of petitioner's father as earlier recorded in the Pariwar Register, maintained under the U.P. Panchayat Raj Act (Maintenance of Family Registers Rules 1970).
(iii) A writ, order or direction in the nature of Mandamus commanding the opposite party no.1 to 5 not to give effect the amended entry of death of petitioner's father changed in pursuant to the order dated 22/24.10.2018 passed by opposite party no.2."
A coordinate Bench of this Court by means of the order dated 14.05.2019 had passed following order which reads as under:-
"Heard the learned counsel for the petitioner and Sri Mohd. Arif Khan, learned Senior Advocate assisted by Sri Vinod Kumar Yadav for the opposite party no. 7 and Sri Anurag Kumar Singh for the opposite party no. 6.
It is the case of the petitioner that she is a daughter of late Bhagwandeen resident of village & post Malipur Block & Tehsil Jalalpur, District Ambedkar Nagar. The date of the death of the petitioner's father was registered by the then Gram Panchayat Vikas Adhikari in the Pariwar Register on 18.1.1983 in pursuance of an order dated 4.1.1983 passed by the CMO, Faizabad as 1.10.1981.
One Madan Mohan - the opposite party no. 6 claimed his right over the property of late Bhagwandeen by filing a Mutation Case before the Tehsildar on the basis of a will dated 5.10.1981 said to have been executed by the petitioner's father in his favour. The Mutation Case was decided by the Tehsildar in her favour on 8.4.1983.
The opposite party no. 6 filed an Appeal before the Sub Divisional Officer which was allowed against which the petitioner filed a Revision before the Board of Revenue and the Board of Revenue allowed the petitioner's Revision on 10.1.2005.
A Review Petition was filed by opposite party no. 6 which was dismissed on 27.8.2007.
The petitioner simultaneously filed a plaint before the Civil Judge (Junior Division), Ambedkar Nagar for declaration of the will deed dated 5.10.1981 as forged. It was registered as Regular Suit No. 216 of 1984 (Lal Devi Vs. Madan Mohan). Also leading of evidence by both parties. The Civil Judge (Junior Division) accepted the date of death of petitioner's father as 1.10.1981 and directed the Sub Registrar to cancel the registration of the will deed dated 5.10.1981. The judgment of the Civil Judge (Junior Division) dated 22.9.2015 was challenged by the opposite party no. 6 by filing a Civil Appeal No. 56 of 2015 (Madan Mohan Vs. Lal Devi). It was dismissed on 8.9.2016. The opposite party no. 6 thereafter filed a Second Appeal No. 335 of 2016 before this Court which has not yet been admitted. There is no interim order in the Second Appeal.
The opposite party no. 6 then kept quiet and his son the opposite party no. 7 moved an application / complaint under the Integrated Grievance Redressal System (IGRS). This complaint was numbered 40017818001240. This complaint was allowed without any notice to the petitioner and the date of death of the petitioner's father was changed to 11.10.1981 on the basis of an order passed by the CMO dated 22/24.10.2018. The petitioner filed an application for getting certified copy of the order dated 22/24.10.2018 but it was not given to her.
In compliance of the order dated 22/24.10.2018, the District Panchayat Raj Officer, Ambedkar Nagar had issued a letter dated 13.11.2018 directing the change of date of death of the petitioner's father in the Pariwar Register.
The petitioner moved an application for getting a copy of the order passed by the District Panchayati Raj Officer on 13.3.2019, but the same was not given to the petitioner.
Later on, on 8.12.2018, the Assistant Development Officer (Panchayat) Ambedkar Nagar directed the entry made in the Pariwar Register to be changed and the date of death of the petitioner's father was recorded as 11.10.1981.
It has been submitted by the learned counsel for the petitioner that the right of the petitioner as daughter of late Bhagwandeen was recognised by the Revenue Courts upto the Board of Revenue and by the Civil Court upto the Court of First Additional District Judge who dismissed the Appeal of the opposite party no. 6. The Second Appeal filed by opposite party no. 6 is pending before this Court and there is no interim order therein.
Now, by means of moving an IGRS complaint, the very basis of the orders passed by the Revenue Courts and the Civil Courts have been removed. Such collateral challenge could not have been entertained.
Sri Mohd. Arif Khan appearing for the opposite party no. 6 has said that after the Board of Revenue rejected the Review Application moved by the opposite party no. 6, the opposite party no. 6 filed a writ petition before this Court and this Court directed the opposite party no. 6 to file a Regular Suit under Section 229-B of the U.P. Z.A. & L.R. Act. In this Regular Suit, an injunction has been granted directing status quo to be maintained between the parties.
It has also been submitted that the Second Appeal filed by the opposite party no. 6 has been admitted and this Court had passed an interim order to the effect that the parties are restrained from alienating the property in question.
It has also been submitted by Sri Mohd. Arif Khan that from a perusal of the documents filed as Anenxures to the writ petition, it is apparent that the petitioner herself is not clear in her case. In the copy of the Pariwar Register for House No. 115, there is a mention that the date of death of the father of the petitioner was changed from 1.10.1981 to 11.10.1981 by an order dated 14.10.1981 and thereafter it was again changed to 1.10.1981 by an order passed by the CMO, Faizabad number V-S/82/83/427. However, in Annexure 8 to the writ petition, the petitioner has mentioned that the date of death of the father of the petitioner was corrected by the CMO by an order dated 12.7.1982. It has been submitted that the order dated 12.7.1982 is forged and this forged order should have been set aside. No opportunity of hearing needed to be granted by the CMO in setting aside a forged order.
Learned counsel for the opposite party no. 6 has referred to a judgment rendered by this Court reported as Zeba Haseeb @ Ankita Vs. State of U.P. & others 2015 ACJ 435 wherein the Registration of Birth and Deaths Act 1969 and the U.P. Rules framed thereunder in 2002 have been considered and it has been held that an application under the Act of 1969 and the Rules of 2002 can only be moved within one year of the date of death and in case there was a delay the same had to be first condoned by the appropriate Authority on payment of prescribed fee i.e. the Sub Divisional Magistrate of the area concerned.
It has also been submitted on the basis of this judgment that Fraud and justice never dwell together and paragraph 16 of the judgment has been read out.
Sri Anurag Kumar Singh appearing for the opposite party no. 7 - the son of opposite party no. 6 has argued that against the entries in the Pariwar Register, Appeal is provided under the Pariwar Register Rules. It is the case of the petitioner that the name of the petitioner was deleted from the Pariwar Register on 22.11.2016 along with the names of her two sons - Rajmani and Rajkesh and the order was noted in the Pariwar Register on 1.12.2016 by the Gram Vikas Adhikari, the petitioner did not move any application / Appeal before the appropriate Authority for correction of the entries in the Pariwar Register. Since, the name of the petitioner, two brothers were removed from the Pariwar Register, there was no need to issue notice to the petitioner or her sons at the time of passing of the impugned order.
It has also been submitted that under the Registration of Births and Deaths Rules, there is no Appeal provided and there is also no provision for giving of opportunity of hearing.
This Court having considered the arguments raised by the learned counsel for the opposite party nos. 6 & 7 is of the prima-facie opinion that in collateral proceedings, the very basis of the orders passed by the Revenue Court and the Civil Court could not have been removed. Moreso, no opportunity of hearing was given to the petitioner who was admittedly the daughter of late Bhagwandeen. It has seriously been disputed by Shri Mohd. Arif Khan that she is not a daughter of late Bhagwandeen.
However, this fact is yet to be decided in the Suit for declaration under Section 229-B of the U.P. Z.A. & L.R. Act filed by the opposite party no. 6 before the Revenue Courts.
This Court is prima-facie satisfied that the impugned order could not have been passed without opportunity of hearing to the petitioner.
The opposite party nos. 6 & 7 are given ten days time to file counter affidavit.
List this matter after ten days on 27.5.2019 before the appropriate Court as fresh.
Till the next date of listing, the impugned orders shall remain stayed.
The State respondents are directed to file a short counter affidavit also in the matter bringing on record the copies of the various orders passed by the CMO, Faizabad and Ambedkar nagar and by the DPRO, Ambedkar Nagar which have been impugned in this writ petition, but have not been supplied to the petitioner.
The petitioner shall also file original copies of all documents, she wishes to rely upon .
On the next date of listing, the original records from the office of the CMO and also from the office of the Gram Panchayat Adhikari, with regard to date of death being recorded in the Pariwar Register be produced by the learned standing counsel.
Again, a coordinate Bench of this Court on 27.05.2019 had passed following order which reads as under:-
"Short counter affidavit has been filed, which is taken on record.
Heard.
Records from the C.M.O's. office are available today, however, this Court finds that there are at least three parallel proceedings going on involving the issue of date of death of the testator. First of all there are civil proceedings arising from the suit for cancellation of a Will which was dismissed, against which the first appeal was also dismissed and the second appeal is pending wherein the question of issue of date of death of the testator is involved. Secondly it seems that in a writ petition arising out of mutation proceedings some observations were made by this Court giving liberty to the petitioner who is the opposite party no.6 herein to initiate proceedings under section 229-B of the U.P. Zamindari Abolition and Land Reforms Act 1950 which have been initiated wherein also this issue is involved. Although it is debatable as to how this proceeding can go on when at least as of now the Will already stands cancelled by the Civil Court, nevertheless, without drawing any conclusive opinion in this regard, now the writ proceedings before this Court are the third proceedings which arise out of an application filed by the opposite party no.7, son of the opposite party no.6 for correction of the entry in the register of birth & death wherein it is said that the officer who had made entry by way of correction in the year 1983 i.e. the C.M.O. was not competent as the entry was made beyond a period of one year and that there is no order of the C.M.O. on record. Now if this Court independent of the proceedings already pending in the second appeal and before the S.D.M., peruses the records and makes any observation and record its findings in respect of the issue involved, this would further complicate the matter. Normally this should not be done in writ proceedings, however, the question as to whether the subsequent proceedings for correction were maintainable or not can be seen, therefore, only for this purpose counsels are called upon to address the Court on this issue on the next date. If any affidavit is required to be filed, they may do so before the next date.
Records which are available with the C.M.O. need not be placed before the court, unless specifically called for as it is the admitted position of the parties that the entry by way of correction in the register of birth and death was made beyond a period of one year by the C.M.O. and that the initial entry was otherwise. It is also to be seen as to whether these issues can be seen in the second appeal and/or the proceedings under section 229-B or not, especially in view of the contention of the petitioner that the factum of the civil proceedings before the Civil Court was not disclosed therein ? If they can be seen, whether, the Writ Court should venture into these issues ? Would it not further complicate the matter.
List this case on 11.7.2019 when the matter can be disposed off finally.
Interim order is continued only till the next date of listing.
Record of the D.P.R.O. which is available today also need not be placed before the Court, unless specifically called for."
Having perused the aforesaid two orders passed by this Court, the controversy which is crystallized before this Court is regarding the fact whether the date of death of Bhagwandeen was 01.10.1981 as claimed by the petitioner or 11.10.1981 as claimed by the private respondent.
It is in the aforesaid backdrop that in the year, 2018, the private respondent no.7 moved a complaint before the State authorities that the entries regarding the date of death of Bhagwandeen have been incorrectly mentioned. Taking a cue thereof certain reports were called for and thereafter the impugned order dated 08.12.2018 came to be filed. By rectifying the date of death of Bhagwandeen, this order along with consequential order of making reciprocal alterations in the date of death in the Pariwar Register is also under challenge before this Court.
Submissions of learned counsel for the petitioner is that the parties were already litigating in the civil and revenue courts in as much as initially mutation proceedings were contested and the date of death of deceased Bhagwandeen was accepted as on 01.10.1981. This proceedings came to be decided in favour of the petitioner up to the Board of Revenue. It is further urged that another suit was filed by the petitioner, seeking cancellation of the Will which was relied upon the private respondents bearing RS no.216 of 1984. In this suit the date of death of Bhagwandeen was 01.10.1981 wherein this issue was before the Court and the trial court by means of its judgment and decree dated 22.09.2015 passed by Civil Judge (J.D) Ambedkarnagar decreed the suit of the petitioner canceling the Will which was the basis of right claimed by the private respondent.
It is further pointed out that the said judgment and decree passed by the trial court came to be assailed in a Regular Civil Appeal bearing no.56 of 2015 which also came to be dismissed by means of the judgment and decree dated 08.09.2016. Against the concurrent judgments of the trial court and the first appellate court the private respondent preferred a second appeal before this Court bearing no.335/2016 (Madan Mohan vs Lal Devi) wherein a coordinate Bench of this Court by means of the order dated 19.10.2016 issued a notice to the parties and fixed the matter for admission and in the meantime, it was directed that the parties will desist from creating third party right in respect of property in question.
Submission is that once the regular proceedings had already been contested and were pending before this Court in shape of the second appeal as referred to hereinabove, there was no occasion for the executive authority to have undertaken such an exercise of summary manner in which the findings recorded by the competent civil court and revenue court were sought to be put at naught. It is thus urged that the exercise of power by the State respondent while passing impugned order was in excess of jurisdiction vested in law.
It is further submitted that even otherwise the petitioner who was the affected party was not even heard nor any opportunity was granted coupled with the fact that the orders passed by the civil courts were in favour of the petitioner and the private respondent no.7 even while making the complaint did not disclose the true and complete facts including the findings recorded by the courts in respect of the issue in question and, thus, (i) on one hand, the petitioner has been prevented from contesting the proceedings and bringing the complete facts on record.
(ii) Moreover, the order has been passed which is contrary to the record and in excess of jurisdiction, thus, for the aforesaid reasons, the impugned orders cannot be sustained.
Sri M.A Khan learned senior counsel for the private respondent has urged that the date of death i.e. 01.10.1981 relating to Bhagwandeen was incorrectly recorded in the first place. There is nothing on record to suggest, who had conveyed the information and on what basis an entry was made which was at the behest of the petitioner and that too was incorrect.
It is further urged that as soon as the same came to the notice then an application for rectification was moved and it is after holding a due inquiry as envisaged in law the orders have been passed restoring the correct entry and in such exercise, it cannot be said that the authorities have committed an error or the order impugned requires any interference from this Court. Thus, for the aforesaid reasons, it is clear that the writ petition deserves to be dismissed.
Additionally, it has been pointed out by the learned senior counsel that the death certificate which has been relied upon by the petitioner itself suffers from various discrepancies and though the petitioner has filed the instant writ petition but did not have the courage to bring the original on record which clearly indicates that the right as claimed by the petitioner on the basis of fake death certificate also has no legs to stand and for all the aforesaid reasons, the petition deserves to be dismissed.
Sri Devendra Mohan Shukla learned Additional Chief Standing counsel for the State respondent submits that they received the information and, thereafter, acting in accordance with the Registration of Births and Deaths Act, 1969 and the Rules framed thereunder in the year, 2003 an inquiry was done and after having received the relevant reports which have been brought on record as part of Annexure SCA-3, the incorrect entry was rectified and therefore, it cannot be said that the authority had passed the order, which is impugned in the writ petition, in excess of jurisdiction vested in law and the writ petition deserves to be dismissed.
The Court has heard learned counsel for the parties and also perused the material on record.
Certain undisputed facts that emerged from the record are-
(i)) that in respect of property of Bhagwandeen the petitioner and the private respondent initially contested the matter in mutation proceedings which ultimately came to be decided in favour of the petitioner.
It is also not disputed that the regular suit was filed by the petitioner seeking cancellation of the Will which was the basis of title of the private respondents and the said suit bearing RS No.216 of 1984 came to be decreed in favour of the petitioner on 22.05.2015. It is also not disputed that the private respondent had preferred a regular civil appeal under Section 96 CPC which also came to be dismissed by means of the judgment and decree dated 08.09.2016 passed by District Judge, Ambedkarnagar against which the private respondents are preferred a second appeal.
From a perusal of the order passed by the second appellate court, a copy of which has been brought on record as Annexure CA-2 with the counter affidavit filed by the private respondent, it would indicate that on 19.10.2016 while issuing notice to the respondents in appeal the matter was fixed for admission and the parties were restrained from creating third party right in respect of the property in question. It is also not disputed that the second appeal is pending before this Court.
In the aforesaid backdrop of undisputed fact the question that requires consideration is that once this entire title proceedings had been decided by two courts and was before this Court in second appeal which is yet to be decided on merits, whether the private respondent could have made a complaint suppressing the orders passed by competent court including his second appeal which was pending before this Court.
Nothing could be brought on record to indicate that the private respondent while making the said complaint ever referred to any such litigation which he had been contested by the petitioners since 1984. The private respondent as well as the State could not bring any material on record to indicate that the petitioners were at any given point of time were noticed or called upon to respond to the said application for correction of an entry.
Apparently, the order impugned was exparte in so far as the petitioner is concerned. This Court further opined that while passing the order the State authorities were not made aware of the findings recorded by the civil court and the first appellate court as well as the revenue court nor it was disclosed that a second appeal was also pending before the High Court.
In light of the above, where the matter was subjudice in a second appeal then in such circumstances the executive authority could not undertake an exercise to correct any entry in the Pariwar Register or issue a date of death in terms of the Act of 1969 and the Rules of 2003 framed thereunder.
This Court is constrained to note that once the private respondent had approached the authorities concerned for rectification of date of death then it was his bounden duty to have informed the authorities of the entire litigation specially when there were findings against him recorded in the said judgments.
Moreover, it is undisputed that the petitioner could not have been noticed nor he got an opportunity to present his case before the authority concerned. Thus, for the aforesaid reasons, the impugned orders are bad and cannot be sustained and are accordingly set aside. It is made clear that mere allowing of this writ petition and setting aside the orders passed by the Executive Authority may not be taken as expression of opinion on merits regarding the date of death of Bhagwandeen. Needless to say that the second appeal shall be decided on its own merits on the basis of material on record of the said second appeal.
This order has been passed solely on the ground that the petitioner was not accorded an opportunity and the proceedings for rectification of the entry in the register of death and birth coupled with its reciprocal entry into the Pariwar Register was without taking into account the orders passed in civil and revenue proceedings. The Authorities may proceed in accordance with law and pass appropriate orders after hearing the parties concerned and taking into consideration the effect of the orders passed in civil and revenue proceedings. Subject to the above observations, the writ petition is allowed.
In view of the above, the writ petition is allowed. Costs are made easy.
Order Date :- 25.3.2025/Harshita