JUDGMENT Krishna Murari, J.
3. On death of Bankey Singh the name of the petitioner came to be recorded under Section 175 of U.P.Z.A. & L.R. Act by the order of Assistant Consolidation Officer dated 27.12.1982. Thereafter, respondent No. 3 who is the son of maternal uncle of late Bankey Singh moved an application for recording his name on the basis of an alleged Will dated 15.1.1982 registered on 14.2.1983 executed by deceased Bankey Singh in his favour. The Consolidation Officer vide order dated 20.12.1983 rejected the application on the ground that earlier order dated 27.12.1982 passed in favour of the petitioner has become final. The respondent No. 3 challenged the order dated 27.12.1982 as well as 20.12.1983 in appeal. The Settlement Officer Consolidation vide order dated 28.4.1984 allowed the appeal and remanded the case back to the Consolidation Officer for deciding the same afresh after considering the Will in favour of respondent No. 3.
4. After remand, the Consolidation Officer vide order dated 21.1.1985 allowed the claim of the petitioner and directed his name be recorded in place of deceased Bankey Singh on chak No. 67 and 69 and further directed that chak Nos. 105 and 161 be recorded as Navin Parti in the name of Gaon Sabha. The claim of respondent No. 3 for mutation of his name on the basis of Will was rejected by the Consolidation Officer on the finding that the same has not been proved in accordance with law and it appears to be suspicious in the circumstances in which it was procured. However, the Settlement Officer Consolidation vide order dated 3.10.1986 allowed the appeal filed by respondent No. 3. Feeling aggrieved, the petitioner filed a revision which has been dismissed by the Deputy Director of Consolidation by order dated 14.1.1988.
5. I have heard learned counsel for the parties and perused the record of the writ petition.
6. It has been contended by the learned counsel for the petitioner that the Consolidation Officer after considering the evidence adduced for proving the Will, has recorded a finding that Will was not genuine. It has further been urged that respondent No. 3 failed to remove the suspicious circumstances under which the Will was executed and the same was rightly discarded by the Consolidation Officer, while the Settlement Officer Consolidation and Deputy Director of Consolidation without considering the same have wrongly and illegally accepted the Will to be genuine. It has also been contended that the finding recorded by the Consolidation Officer has not been reversed by the Settlement Officer Consolidation and Deputy Director of Consolidation and thus the judgment suffers from patent error of law. In reply, it has been urged by the learned counsel for the petitioner that Settlement Officer Consolidation and Deputy Director of Consolidation after considering the entire evidence on record rightly set aside the judgment of the Consolidation Officer and accepted the Will as genuine.
7. Before the Consolidation Officer the original Will was not produced as the same was said to have been lost by the respondent No. 2 while travelling in the bus and only a copy of the same was filed. The Consolidation Officer after considering the oral evidence adduced by respondent No. 3 disbelieved the validity of the Will and discarded the same. One Preetam Singh alleged to be scribe and one of the attesting witnesses of the Will was produced before Consolidation Officer besides respondent No. 3. The Consolidation Officer has noted material contradiction in their statements. It was stated by the respondent No. 3, in cross-examination that the Will was written in the house of Bankey Singh and Bankey Singh was sitting inside his house in kothari whereas Preetam Singh the scribe and attesting witness of the Will stated that Bankey was sitting on a cot in his courtyard and Will was written by him sitting in verandah. The respondent No. 3 stated that the Will was written on one water mark paper which was purchased and kept with him by Bankey Singh and he put three thumb impressions whereas the attesting witness stated that the Will was written on two water mark papers which were brought by him and Bankey Singh put two thumb impressions. The Consolidation Officer further found that Mathura Singh the other witness stated that Bankey Singh read the Will once after it was written whereas the scribe Preetam Singh stated that he read it two times. The Consolidation Officer also recorded a finding that no explanation has been given for getting the Will registered on 15.1.1982 two months after the death of Bankey Singh. Taking into consideration the material contradiction in the statement of witnesses, the Consolidation Officer came to the finding that Will was not proved in accordance with law and was not genuine and discarded the same.
8. In the case of Smt. Guro v. Atma Singh and Ors., 1992 (2) AWC 1067, the Apex Court noticing material contradiction in the statement of witnesses produced to prove the Will set aside the judgment of the High Court which had ignored the contradictory statement on the ground that lapse in the statement of witnesses may be due to faulty memory and to avoid criticism. It has been observed by the Apex Court as follows :
"Another significant feature which has been brushed aside by the High Court is about the role of respondent No. 1 in the execution of the Will under which he is the sole legatee. It has been stated by Manohar Lal, P.W. 1, that Tara Singh, the son of respondent No. 1 had come to call him. To the same effect is the testimony of Kehar Singh, P.W. 2 and Surjan Singh, P.W. 3, the attesting witnesses. The Will was executed outside the residence of respondent No. 1, on a bahi brought by Tara Singh, the son of respondent No. 1. The respondent No. 1 has made contradictory ' statements about his presence at the time of execution of Will. The High Court has ignored these contradictions in the, statement of respondent No. 1, by a simple observation that this lapse on the part of respondent No. 1 may be due to faulty memory or may be he was trying to avoid the criticism that he has tried to exercise some influence to get the Will executed in his favour ............... Taking into consideration the aforesaid features, we are of the view that the High Court was not justified in reversing the findings of the fact recorded by the appellate court that Will is not proved to be a genuine document executed by Ganga Singh and in holding that the execution of the Will had been satisfactorily proved by respondent No. 1."
9. Apart from noting material contradiction in the statement of witnesses the Consolidation Officer has recorded the following reasons for holding that the Will was not genuine :
(i) The original Will was not produced on the ground that the same was lost as such the genuineness of the thumb impression of the testator of the Will cannot be verified.
(ii) The Will was presented for registration on 2.1.1983 before the Sub-Registrar of Tehsil Sahasvan after two months of its execution and after death of testator Bankey Singh.
(iii) Will was not presented for registration before Sub-Registrar, Badaun which is only at a distance of about 1 Km. from village Gularia where the respondent No. 2 resides and was presented before Sub-Registrar of Tehsil Sahasvan which is situate at a distance of 45 Km. from the residence of respondent No. 3.
(iv) Will was not presented just after execution of registration before the Sub-Registrar, Badaun whose office is just adjacent to the district hospital where Bankey Singh was admitted from 17.11.1982 to 21.11.1982.
(v) Bankey Singh testator of Will was not living with the respondent No. 3 but was living with the petitioner and it was the petitioner who got him admitted in the district hospital and performed his last rites as well.
10. The aforesaid circumstances noted by the Consolidation Officer in his judgment clearly creates suspicion regarding the execution and attestation of Will. The mode of proving a Will does not ordinarily differ from that of proving other documents except as to special requirements prescribed in the case of Will by Section 63 of the Indian Succession Act. If there are any suspicious circumstances about the execution of the Will, it is the duty of a person seeking declaration about the validity of the Will to dispel such suspicious circumstances.
11. The Apex Court in the case of Rani Purnima Devi v. Kunwar Khagendra Narain Deb, AIR 1962 SC 567, has observed that broad statement of witnesses that he had witnessed the testator admitting execution of Will was not sufficient to dispel suspicion regarding due execution and attestation of the Will.
12. In view of the law laid down by the Apex Court it is clear that the conscience of the Court must be satisfied about the genuineness of the Will and the obligation is cast on the propounder of Will to dispel the suspicious circumstances, if any, surrounding the Will and mere statement of witness regarding execution of the Will will not be sufficient to prove the Will if there are circumstances which create suspicion regarding its execution.
13. In the case, in the hand, the Consolidation Officer after noticing material contradiction in the statement of witnesses and the suspicious circumstances surrounding execution of the Will which respondent No. 3 failed to dispel, came to the finding that Will was not a genuine document.
14. The Settlement Officer Consolidation and Deputy Director of Consolidation without reversing the finding recorded by Consolidation Officer have accepted the Will to be genuine only on the ground that it was a registered document and one of the attesting witnesses was produced to prove the execution of the Will. Even though under Section 18 of Indian Registration Act registration of the Will is optional and the provision of Section 18 are directory in nature and not mandatory. The effect of registration of a Will has been considered by the Hon'ble Apex Court in the case of Rani Purnima v. Kunwar Khagendra Narain and Ors. (supra). In paragraph No. 23 of the said judgment it has been observed :
"There is no doubt that if a will has been registered, that is a circumstance, which may, having regard to the circumstances, prove, its genuineness. But the mere fact that a Will is registered Will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was Will disposing of his property and thereafter he admitted its execution and signed it in token thereof the registration will dispel the doubt as to the genuineness of Will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the Will did not read it over to the testator or did not bring home to him that he was admitting the execution of a Will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the Will) that the testator knew that it was Will the execution of which he was admitting, the fact that the Will was registered would not be of much value."
15. The Settlement Officer Consolidation and Deputy Director of Consolidation have failed to consider the fact that Will was got registered after the death of testator. Thus, there was no occasion to establish that the officer registering the Will read it over to the testator nor was there any occasion to lead evidence to indicate that the testator admitted the execution before officer registering the Will. In such circumstances the onus on the propounder of the Will to dispel the suspicious circumstances surrounding the execution, attestation of the Will was more onerous.
16. Both the Settlement Officer Consolidation and Deputy Director of Consolidation have failed to consider another very material aspect of the matter that the respondent No. 3 failed to give any reason under which the Will was got registered after two months of its execution and after the death of testator, Bankey Singh. This fact itself creates a very strong suspicion about the genuineness of the Will and a very heavy burden lay on the respondent No. 3 to dispel the suspicious circumstances which he miserably failed to remove. The Settlement Officer Consolidation and Deputy Director of Consolidation while accepting the Will as genuine has completely ignored this aspect of the matter. Reasons recorded by the Consolidation Officer for discarding the Will have not even been referred to by the Settlement Officer Consolidation and Deputy Director of Consolidation much less set aside the same and thus, their judgment are not liable to be sustained.
17. In the result, the writ petition succeeds and is allowed. The impugned order dated 3.10.1986 passed by Settlement Officer Consolidation and 14.1.1988 passed by Deputy Director of Consolidation are hereby quashed and that of the Consolidation Officer dated 21.1.1985 is hereby affirmed. However, in the facts and circumstances of the case, there shall be no order as to costs.