Court No. - 1
Case :- WRIT - C No. - 24874 of 2020 Petitioner :- Raja Ram And 4 Others Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Anuruddh Chaturvedi Counsel for Respondent :- C.S.C.
with Case :- WRIT - C No. - 25069 of 2020 Petitioner :- Raja Ram And 4 Others Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Anuruddh Chaturvedi Counsel for Respondent :- C.S.C.
Hon'ble Vivek Agarwal,J.
1. Heard Sri Aniruddh Chaturvedi, learned counsel for the petitioners and Sri Girish Vishwakarma, learned Standing Counsel for the State.
2. Petitioners have filed these petitions challenging the order dated 16.03.2020 passed in Revision No.192/287/2009-2010, Computerized No.C201007000066 (Rajaram Vs. Ramswaroop and others) on the ground that, courts below have passed impugned orders on the basis of conjectures and surmises without taking into consideration a fact that a Will was executed in favour of the petitioners, which was duly proved and petitioners are in possession of the suit property, yet overlooking their possession, title of respondent nos.5 and 6, has been accepted on the basis of Will of Sri Nathu Ram son of Ram Sanehi Rawat.
3. It is submitted that earlier Will was in the name of the petitioners, who are nephews of Sri Nathu Ram, inasmuch as, Nathu Ram did not had any sons of his own, therefore, he had earlier written a Will in favour of the petitioners, but on the basis of a subsequent Will, mutation has been carried out in favour of the married daughters. It is further submitted that at the relevant point of time, daughters were not having any right of inheritance and, therefore, the impugned orders are illegal and arbitrary.
4. After hearing learned counsel for the petitioners and going through the record, it is apparent that two different Revision petitions were filed before the Court of the Commissioner, Chitrakoot Dham being aggrieved of the order passed by Sub- Divisional Officer, Naraini under the provisions of Land Revenue Act. Both the Revision petitions were heard together and it has come on record that Will, which was executed in favour of the respondent nos.5 and 6 was duly signed by the Executor on both the pages and was proved before the court of law. The only ground to challenge the Will in favour of the respondent-daughters is that witnesses had not signed on each of the pages of the Will. However, it has come on record that testator had signed the concerned Will in favour of the daughters on both the pages and, therefore, merely absence of the signatures of the witnesses on both the pages will not affect the substantial right of the beneficiaries, as has been held in case of Ammu Balachandran Vs. O.T. Joseph and others; AIR 1996 Mad 442 wherein in para 49, this issue has been discussed and answered in the following terms:-
"49. The other suspicious circumstances are, that there is no signature in pages 1 and 2 and those pages are also not numbered in the Will. The argument that is taken is that pages 1 and 2 must have been subsequently substituted, and that is why page number is not found in those pages. If pages 1 and 9 have been subsequently substituted, in that attempt, the numbering of pages 1 and 2 would not have been forgotten as it is an obvious thing. Again, pages 1 and 2 are appearing on a single sheet of paper, and as such, there is no necessity for numbering the first sheet and there was only one more sheet and since it was a separate sheet, the page number was given. We must also remember that P.W. 2 has stated that when he signed in the Will, there were two sheets pinned together. In the absence of any other positive evidence, no inference can be drawn that pages 1 and 2 were subsequently substituted. The other suspicious circumstance alleged is that the Will is not signed in all the pages. That also cannot be said to be a suspicious circumstance since the Will is only a declaration of the last Will of the testator. Law does not say that every page should be signed. In paruck on The Indian Succession Act, Eighth Edition, 1993, the learned Author has commented on this point, at pages 118 and 119 of that book. The learned Author says that if a Will is written on several sheets of paper, it is not necessary that all the pages should be severally signed. One signature on the last sheet, made with the intention of executing the Will is sufficient. Section 63 of the Indian Succession Act only says that the signature or mark of the testator or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as Will. The signature or mark of the testator can be either at the commencement or at the end, but it must be so placed that it shall appear that it was intended to give effect to the instrument as a Will. Under the English Law, there is a slight difference. At pages 118 and 119 of the said book, the learned Author has said thus:--
".... In England the Law is different. The Will Act, 1837, Sec. 9, enacted that no Will was valid unless it was signed "at the foot or end thereof. The Will Act Amendment Act, 1852, Section 1, provided that "every Will shall, so far as regards the position of the signature of the testator be deemed to be valid if the signature shall be so placed at or after or following or under or beside or opposite to the end of the Will, that it shall be apparent on the fact of the Will that the testator intended to give effect by such his signature to the writing signed as his Will... but no signature shall be operative to give effect to any disposition or direction which is underneath or which follows it". The signature on the top right hand corner of the Will is not valid according to English law."
In so far as the Indian Succession Act is concerned, the learned Author has stated (at page 119) thus:--
"... the signature need not necessarily be at the end of the Will. It does not matter in what part of the Will the testator signs. In the Wills executed in vernacular language it is usual to put the signature on the top of the Will. This is valid execution."
All the suspicious circumstances alleged by the appellant are no circumstances which vitiate the Will".
5. Even the revisional court has accepted that Will recorded in favour of the daughters of the testator was proved by examining witness no.2-Shrwan Kumar son of Krishna Kumar Sharma in the court on 18.12.2009, and this witness had proved the Will executed in favour of Smt. Sampit Devi and Samit Devi, as the Will has been proved by one of the witnesses of the Will, then in terms of the provisions contained in Section 68 of the Evidence Act, Will has been rightly held to be proved and on the basis of such Will, mutation has been carried out, which cannot be faulted with.
6. The writ petitions are devoid of merit and there is no illegality in the view taken by the courts below calling for any interference, therefore, petitions fail and are dismissed.
Order Date :- 5.1.2021 Ashutosh