Heard Shri Pankaj Gupta, learned counsel appearing for the petitioner and Shri R.P.Singh, learned counsel for the opposite parties. I have also perused the pleadings on record.
The dispute in the instant writ petition relates to the khasra Plot no.426 having an area of 1 Bigha 11 Biswa 13 Biswansi situate in Village Husainpur, Pargana and Tehsil Patti, District Pratapgarh.
The pedigree which is relevant to be mentioned for the purpose of resolving the dispute in question and which is not disputed by either parties is as follows:-
Shiv Mangal / ..................................................................................................................
Admittedly, the original tenure holder of the land in dispute was one Baijnath who died on 12.08.1995 leaving behind him his brothers Jagannath and Gaya Prasad (father of the petitioner) as his legal heirs as per arrangement of inheritance provided under Section 171 of the U.P.Z.A.& L.R.Act Smt.Chandra Devi (opposite party no.2) is the married daughter of late Baijnath.
After the death of original tenure holder, Baijnath, the land in dispute was recorded in the name of his two brothers Jagannath and Gaya Prasad through Form No.PA-11 referable to Section 33-A of U.P.Land Revenue Act. However, an application for mutation of her name was moved by Smt.Chandra Devi stating therein that late Baijnath in his life time had executed a Will-deed dated 11.08.1995 in her favour and as such the land in question be recorded in her name. On issuance of proclamation, Jagannath and Gaya Prasad filed their objections stating therein that the Will being relied upon by Smt.Chandra Devi is a fictitious document and that it was never executed by late Baijnath, hence her claim is not tenable. In this objection, it was further averred by Jagannath and Gaya Psrasad that they are the legal heirs of Baijnath and thus, they are entitled to inherit the land in question as per the provisions of Section 171 of U.P.Z.A.& L.R.Act. Thus, the dispute regarding inheritance over the property in dispute arose. The trial court namely, the court of Tehsildar by means of judgment dated 23.07.1998 found the Will relied upon by Smt.Chandra Devi invalid and ordered mutation of the names as per Section 171 of U.P.Z.A.& L.R.Act. Against the aforesaid order dated 23.07.1998, an appeal under Section 210 of U.P. Land Revenue Act was preferred by Smt.Chandra Devi which was allowed by the Sub-Divisional Officer by means of order dated 02.-7.1999. The claim of Smt.Chandra Devi on the basis of Will dated 11.08.1995 was accepted by the appellate court and accordingly, her name was ordered to be mutated.
Against the aforesaid order of the appellate court dated 02.07.1999, a revision petition was preferred by Jagannath before the court of Additional Commissioner, Allahabad Division, Allahabad, who vide order dated 23.11.2007 allowed the revision petition and discarded the Will and thereby, the claim of Smt.Chandra Devi was disallowed. Against the order of the first revisional court passed under Section 219 of U.P. Land Revenue Act, Smt.Chandra Devi preferred a revision petition before the Board of Revenue. The revision petition was allowed by the Board of Revenue by means of order dated 22.12.2009 and the claim of Smt.Chandra Devi based on Will was accepted. The restoration application was filed by the petitioner against the order dated 22.12.2009 passed by the Board of Revenue which too was rejected by means of order dated 15.09.2010. It is these two orders passed by the Board of Revenue i.e. order dated 22.12.2009 and 15.09.2010 that are under challenge in the instant writ petition.
Learned counsel appearing for the petitioner vehemently arguing his case submitted that in view of the inconsistencies in the statements of the witnesses of the Will, finding recorded by the appellate court about the genuineness of the will is perverse. He has specifically placed reliance on the statement made by Smt.Chandra Devi wherein she deposed that the will in question contains her thumb impression whereas, from a bare perusal of the Will-deed, it is apparent that her thumb impression is not affixed on the same. He has further stated that the marginal witnesses of the Will namely; Chhotey Lal and Mata Pher in their cross-examination, have failed to identify the plot in dispute as they were unable to state the boundaries of the plot. Learned counsel for the petitioner has thus, submitted that the finding in respect of the Will recorded by the appellate court is not tenable and hence, the land in dispute should be ordered to be recorded the name of the petitioner as per the provisions of Section 171 of U.P.Z.A.&L.R.Act.
On the other hand, learned counsel appearing for the opposite parties has submitted that the execution of Will, in fact, is a mode of transfer which is resorted to by the testator to eliminate the line of succession for some good reason and further that in the instant case, Baijnath had executed the Will so as to ensure that after his death, the land in question is devolved on his daughter. He has further submitted that the Will dated 11.08.1995 has been proved as per requirement of Section 68 of the Indian Evidence Act, 1962 by one of the marginal witnesses and hence, there is no reason to disbelieve the same.
In support of his submission, learned counsel for the respondents has relied on a judgment of the Apex Court in the case of Lalitaben Jayantilal Popat Versus Pragnaben Jamnadas Kataria and others reported in (2008) 15 SCC 365.
I have carefully considered the arguments made by learned counsels appearing for the parties and have also perused the material available on record.
The sole question for consideration in the present case is as to whether the finding recorded by the appellate court in its order dated 02.07.1999 regarding the fact of execution of the Will in favour of Smt.Chandra Devi is correct and as to whether the first revisional court by means of its order dated 23.11.2007 could have upset the finding of the fact regarding the Will recorded by the appellate court.
The law regarding proof of a valid Will can be found in Section 68 of the Indian Evidence Act, 1872, which provides that the beneficiary of the Will must prove its execution and attestation by examining at least one of the attesting witnesses. Section 68 of the Indian Evidence Act reads as under :-
" 68. Proof of execution of document required by law to be attested.--- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence;
[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.] Thus, if a document is required to be attested, the same can be proved only if at least one attesting witness is called in the witness-box for the purpose of proving its execution.
So far as the bequeath of land holding by way of Will is concerned, Sub-Section 3 of Section 169 of the U.P.Z.A.& L.R.Act requires that a Will made by a Bhumidhar with Transferable Rights should be in writing and attested by two persons and registered. Section 169(3) of the U.P.Z.A. & L.R.Act is quoted below :-
"169(3). Every Will made under provisions of sub-section (1) shall, notwithstanding anything contained in any law, custom or usage, [be in writing, attested by two persons and registered].
It is notable that word "registered" in sub-section (3) of Section 169 of the U.P.Z.A.& L.R.Act was inserted by means of enacting U.P.Act No.27 of 2004 which was enforced with effect from 23.08.2004.
Thus, so far as the instant case is concerned, registration of the Will on the basis of which Smt.Chandra Devi is claiming her right over the plot in question was not required as the Will is alleged to have been executed prior to 23.08.2004 and further that the death of the original tenure holder Baijnath had also occurred prior to 23.08.2004.
"Attestation" of an instrument or a document is defined in Section 3 of the Transfer of Property Act, 1882 which reads as under :-
" 3. Interpretation clause.-- In this Act, unless there is something repugnant in the subject or context, ..... ..... ..... .....
"attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant, but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary."
From a careful reading of the aforequoted provisions of law, it is clear that the execution of the Will in question was required to be proved by Smt.Chandra Devi by examining at least one of the attesting witnesses each of whom ought to have seen the testator either signing or affixing his thumb mark on the Will and each of the marginal witnesses would have signed the Will in presence of the testator.
As regards the finding as to whether the Will was executed in favour of Smt.Chandra Devi or not, the statement of the marginal witnesses assumes importance. One of the marginal witnesses of the Will in question, Chhotey Lal has in his statement clearly stated that Baijnath had executed the Will and signed the same. He has further deposed in his statement that he had seen Bainjath putting his signature and further that Baijnath had also seen him putting his signature as witness to the Will. The relevant extract of the deposition made by one of the attesting witness, Chhotey Lal is being quoted below :-
" ;g olh;r cStukFk us jkth [kq'kh ls iw.kZ LoLF; efLr"d ls fcuk ncko ds izlUurk iwoZd fy[kk gS A olh;r fy[kus ds ckn i From a perusal of the aforesaid deposition made by the marginal witness, Chhotey Lal, it is abundantly clear that he has proved the execution and attestation of the Will in question. As per requirement of Section 68 of the Indian Evidence Act and Section 169 (3) of U.P.Z.A.& L.R.Act, the Will is in writing and has been attested by two marginal witnesses namely; Chhotey Lal and Girdhari. In the opinion of the Court there is nothing on record to suggest that the deposition made before the trial court by Chhotey Lal is to be disbelieved. Further, a perusal of the Will also reveals that the testator namely; Baijnath has given convincing reason to exclude his heirs from inheriting the land in dispute.
In view of foregoing discussion, the Court comes to the conclusion that the finding recorded by the appellate court as regards the Will on the basis of which Smt.Chandra Devi claims the land in question does not suffer from any illegality. It is also noteworthy that the first revisional court namely; the court of Additional Commissioner, Allahabad Division, Allahabad by means of its order dated 23.11.2007, legally could not have upset the finding recorded by the appellate court. It is well settled principle of law that the appellate court is the final court of fact and the revisional court, normally, is not legally permitted to upset the finding recorded by the final court of fact, except in a case where the finding is perverse or is based on no evidence or is based on any inadmissible piece of evidence. A perusal of the order passed by the first revisional court dated 23.11.2007 reveals that it has completely ignored the law relating to proof of Will and has discarded the deposition made by the marginal witnesses of the Will namely; Chhotey Lal only on the ground that he failed to disclose the boundaries of the plot in question. In view of the law relating to proof of a valid Will, as discussed above in the preceding paragraphs, the first revisional court in the instant case has completely failed to appreciate the evidence available on record. Reversal of finding recorded by the appellate court, thus, appears to be outside the scope of the revisional jurisdiction vested in it under Section 219 of the U.P. Land Revenue Act.
Section 219 of the U.P. and Revenue Act vests the power in the Revisional Courts to revise the orders passed by subordinate courts on the grounds mentioned therein. When it is said that the revisional courts should normally be loath in interfering with the finding of fact recorded by appellate or trial court, it does not, however, mean that finding of facts cannot altogether be looked into or gone into by the court concerned in exercise of its revisional jurisdiction under Section 219 of the U.P. Land Revenue Act. The entire record of the trial and appellate courts are available before the revisional court and if, on a closure scrutiny of the evidence and material available on record, the revisional court comes to the conclusion that the finding of fact recorded by the courts below is based on no evidence or inadmissible evidence or is perverse or is based on conjectures and surmises, the revisional court is entrusted with the task of interfering in the said finding of fact and by not doing so, the revisional court would be failing in discharge of its legal obligation which is expected of it for proper exercise of its jurisdiction vested in it under Section 219 of U.P. Land Revenue Act.
However, so far as the instant case is concerned, as observed above, the first revisional court i.e. the court of Additional Commissioner, Allahabad Division, Allahabad in its order 23.11.2007 does not give any cogent and legally tenable reasons for upsetting the findings recorded by the appellate court in regard to the Will on the basis of which Smt.Chandra Devi claims the land in question. Thus, the order passed by the Additional Commissioner, Allahabad Division, Allahabad was not sustainable and the Board of Revenue has correctly allowed the revision petition filed by the opposite party no.2 and has rightly set aside the order passed by the Additional Commissioner, Allahabad Division, Allahabad.
For the discussions made and reasons given above, the Court is of the view that the orders passed by the Board of Revenue, which are under challenge in the instant writ petition, do not suffer from any illegality so as to call for any interference by this Court in exercise of its jurisdiction under Article 226 of Constitution of India.
The writ petition, thus, fails and is hereby dismissed.
However, there will be no orders as to costs.
Order Date :- 12.07.2012 RK/*