JUDGMENT S.K. Singh, J.
1. By means of this writ petition, the petitioner has challenged the judgment of the Deputy Director of Consolidation dated 24.6.2003 (annexure 3) to the writ petition by which revision filed by opposite party has been allowed.
2. There appears to be no dispute about the facts which runs into a very narrow compass and therefore, they can be summarised.
3. The dispute is in respect to the land comprised in chak Nos. 52, 63 and 74 situated in village Rasoolpur, Pargana Ayashah district, Fatehpur which was recorded in the name of Sri Munni Devi widow of late Bansh Gopal. On the death of Smt. Munni Devi, two sets of objection/claim before the Consolidation Officer was laid, one by petitioner on the basis of registered will deed dated 17.5.1985 in her favour and other by opposite party on the basis of un registered will dated 18.11.1986. Smt. Munni Devi died on 2.12.1986. It is in the light of aforesaid two rival claim, parties led their evidence and went in trial. The Consolidation Officer on the basis of oral and documentary evidence accepted the claim of petitioner based on registered will deed and thus, allowed her objection by judgment dated 16.6.1988. The appeal filed by opposite party was dismissed by appellate authority by the judgment dated 16.11.2000. The registered will in favour of petitioner was accepted by appellate authority also. On taking up the matter to the revisional Court by the opposite party, the Deputy Director of Consolidation took the view that none of the will on the basis of which rival claim has been placed needs adjudication on merits as Smt. Munni Devi had no right to execute will and thus the property has been directed to go to the respondent being preferential heir in accordance with Section 171 of U. P. Z. A. & L. R. Act . It is thus the judgment of Deputy Director of Consolidation is under challenge at the instance of petitioner.
4. Parties learned counsel have been heard at length. Submission of learned counsel for the petitioner is that the view taken by the Deputy Director of Consolidation that Smt. Geeta Devi had no right to execute fill is illegal and therefore, as the Deputy Director of Consolidation has not examined merits in the will deed of parties either way on which their claims are based, as decided by two Court, matter needs remand so that parties' claim based on the will may be accepted/rejected. In support of submission that Smt. Munni Devi had right to execute will, provision as contained in Section 169 of U. P. Z. A. & L. R. Act (hereinafter referred to as the Act) which permits a bhumidhar to bequeath his holding by way of will has been placed. Submission is that before amendment vide U.P. Act No. 30 of 1975, provision as existed in Section 169 of the Act clearly prohibited a widow to bequeath her right by executing will but in view of amendment in Section 169 of the Act as referred above, as that prohibition was taken away, even the widow who is bhumidhar, has right to bequeath her holding by way of will. Submission is that there is no dispute that Munni Devi has executed will in the year 1985 i.e. much after the amendment in Section 169 and therefore she being bhumidhar of land, will executed by her cannot be said to be unauthorised. On the aforesaid premises, submission is that judgment of Deputy Director of Consolidation is liable to be quashed.
5. In response to the aforesaid submission, learned counsel for the respondent submits that the consideration as prevailed with the Deputy Director of Consolidation as noted in the order is by keeping in mind the anomaly as exists in Section 171 of the Act and Section 172 of the Act. Submission is that as Smt. Munni Devi has acquired the land by way of succession of deceased Bansh Gopal, on her death, property has to go in the light of Section 171 of the Act and she has no right to execute the will.
6. In view of aforesaid arguments Court has examined the matter. The question to be decided is that whether Smt. Munni Devi can be said to have right to execute will in respect to the land in dispute so as to confer rights on either of the parties on that basis. To consider the aforesaid question, the provision of Section 169 of the Act as existed before Amendment which permits bequeath of holding by a bhumidhar will be useful to be quoted.
7. Section-169:
Bequeath by a bhumidhar-(1) A bhumidhar may by will bequeath holding or any part thereof except as provided in Sub-section (2) (2) No bhumidhar entitled to any holding or part in the right of a widow, widow of a male, lineal descendant in the male line of descent, mother, daughter, father's mother, son's daughter, sister or half-sister being the daughter of the same father as the deceased may bequeath by will such holding or part.
(3) Every will made under provision of Sub-section (1) shall, notwithstanding anything contained in any law, custom or usage, be in writing and attested by two persons.
After omission of Sub-clause (2) of Section 169, vide U.P. Act No. 30 of 1975, Section 169 as exists as on today, is quoted here under:
Section 169:
Bequest by a bhumidhar-(1) A bhumidhar may by will bequeath his holding or any part thereof except as provided in (Sub-section (2-A) (2) * (2-A) In relation to a bhumidhar belonging to a Scheduled Caste and Scheduled tribe, the provisions of Section 17-A shall apply to the making of bequests as they apply to transfer during life time. Every will made under provisions of Sub-section (1) shall, notwithstanding anything contained in any law, custom or usage, be in writing and attested by two persons.
8. A plain reading of Section 169 of the Act before amendment, makes it clear that a bhumidhar by will could bequeath his/her holding. Sub-clause (2) of Section 169 was a rider for a widow to execute will. As Sub-clause (2) of Section 169 was omitted by U.P. Act No. 30 of 1975, now it is clear that there is no bar for widow to bequeath her holding/land by executing will. The word 'bhumidhar' as mentioned in Section 169, can not be interpreted as Male Bhumidhar only and therefore, even female being bhumidhar has certainly right to bequeath her holding by executing will. If this view is taken that female has a right to bequeath her land by executing will and at the same time, if it is said that on the basis of that will the legatee will not get any right then both will be self contradictory and thus both situation cannot co-exist. The Deputy Director of Consolidation in his judgment at one place has given a finding that in view of Section 169 of the Act, she has a right to execute will, but at the same time by referring Section 171 and 172 of the Act, it has been held that as land was received by Smt. Munni Devi by way of succession from her husband, will executed by her is void and property has to go by succession in view of Section 171 of the Act. The finding appears to be self contradictory. If by virtue of amendment in Section 169 of the Act, female Bhumidhar has been conferred right to bequeath her holding by executing will then irrespective of mention in Section 171 or 172 of U. P. Z. A. & L. R. Act that succession is to be governed subject to provision of Section 169 of the Act, if the lady has bequeathed her holding by will, beneficiary has to receive that benefit failing which, very purpose of amendment in Section 169 of the Act will become redundant and omission of 169 (2) of the Act will become meaningless. It cannot be disputed that under, Section 171 of the Act a widow succeeds to her husband with absolute right and as by virtue of omission of Section 169(2) of the Act, she gets right to bequeath her holding by executing will, the consequence cannot be restricted as has been held by the Deputy Director of Consolidation unless there is any specific provision under the Act that in spite of omission of Section 169(2) of the Act, even if a female has been conferred right to bequeath her holding by executing will, no right will flow to the legatee. The right to bequeath the holding by executing will as conferred on the widow has not been made dependant in the manner of acquisition of right by lady and it is not qualified on particular acquisition of right by lady. The language of Section 169 of the Act states "bhumidhar" and thus it cannot be classified in the manner as held by the Deputy Director of Consolidation. Section 170 of the Act , is also a provision dealing with the rights to be transferred by will which clearly prohibits that no sirdar or asami has right to bequeath his land by way of will. Thus, on the death of a tenure holder, if under Section 171 of the Act, which is general order of succession, a widow has succeeded and she has been given right to bequeath her land by executing will, if the will is found to be valid and genuine, legatee has right to get rights accordingly. In view of aforesaid, it is clear that the Deputy Director of Consolidation in not considering the merits of will as set up by the parties and in allowing revision on another ground has committed error. Two courts have accepted registered will in favour of petitioner and therefore, it is for the Deputy Director of Consolidation to accept/reject the genuineness and validity of will as claimed by either side upon which the rights are to be conferred on the parties accordingly.
9. For the reasons recorded above, this petition succeeds and is allowed. The impugned judgment of the Deputy Director of Consolidation dated 24.6.2003 is quashed and the matter is sent back to the revisional court to decide claims of the parties on merits, in the light of respective claims based on will, preferably within a period of three months from the date of receipt of certified copy of this order, in accordance with law after affording opportunity of hearing to the parties concerned, of course without allowing any unwarranted adjournment to either of the them, unless it is required for very compelling reason.