Jagbir Singh vs State of U.P. and Others

Ram Surat Ram (Maurya), J.—Heard Sri Pankaj Kumar Tyagi, for the petitioner and Sri Daya Ram Yadav, for the respondents. The writ petition has been filed against the orders of Board of Revenue, U.P. at Allahabad (respondent-2) dated 31.7-2013, and Commissioner Meerut Division Meerut (respondent-3) dated 5.8.2008, passed in the proceedings arising out of the suit u/s 229B of U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as "the Act").

The dispute relates to the land of khata-194 [consisting plot 90 (area 2.800 hectare) and plot No. 38 (area 2.714 hectare)] of village Chiraudi, pargana Daurala, district Meerut. The land in dispute was ancestral property and was coming from the time of Bhure. After death of Bhure, it was jointly inherited by his two sons, Khacheru and Ram Prasad. Khacheru was inherited by his four sons Satyabir, Jagbir (the petitioner), Rishi Pal (respondent-7) and Sheesh Pal (respondent-8). Ram Prasad died issue-less and his share devolved upon his brother''s sons. Jagbir (the petitioner) filed a suit (registered as Suit No. 18) u/s 229B of the Act, in respect of plot 90, stating that Satyabir, Jagbir, Rishi Pal and Sheesh Pal were sons of Khacheru and had 1/4 share each in the land in dispute. Satyabir executed a Will dated 9.5.1998 in favour of the petitioner. Satyabir was murdered, in which brother of Smt. Asha (respondent-6) was an accused. On the basis of the Will dated 9.5.1998, executed by Satyabir, the petitioner filed an application for mutation of his name, in place of Satyabir, which was contested by Kunwar Pal, claiming himself as the son of Satyabir. Tahsildar by order dated 4.1.1999 directed for mutation of the name of Kunwar Pal in place of Satyabir. The appeal filed by the petitioner was dismissed by Sub-Divisional Officer by order dated 13.3.1999 and the revision filed by the petitioner against the aforesaid order has also been dismissed by Additional Commissioner by order dated 29.6.2001. In the meantime Kun-war Pal was also murdered and in his place name of Smt. Asha was recorded on the basis of PA-11. Satyabir had no son and he was residing along with the petitioner. The petitioner was looking after him as such he executed a Will dated 9.5.1998, giving his properties to the petitioner. After death of Satyabir, he inherited 1/4 share of Satyabir under his Will. The petitioner filed another Suit (registered as Suit No. 19 ) u/s 229B of the Act in respect of plot No. 38 (area 2.714 hectare) of village Chiraudi, pargana Daurala, district Meerut against Smt. Asha, Harendra, Ravindra and others, on the same allegations.

Smt. Asha (respondent-6) contested the aforesaid suits and filed her written statements. She stated that Satyabir was son of Khacheru. Satyabir was married to Smt. Krishna and from the bed lock of Satyabir and Smt. Krishna one son, Kunwar Pal was born. When Kunwar Pal was about one year old, Smt. Krishna left Satyabir and remarried with another man of village Akhlaspur. When Kunwar Pal had become 10 years old, he was brought by Satyabir to his village. He was admitted to the school and he passed Intermediate examination from Lok Priya Inter College Sardhana, Meerut. Khacheru had four sons namely Satyabir, Jagbir, Rishi Pal and Sheesh Pal. Jagbir had one son Rajbir. She was married to Rajbir. Unfortunately, Rajbir died thereafter she was remarried to Kunwar Pal. After death of Satyabir, the name of Kunwar Pal was mutated over the land in dispute. After death of Kunwar Pal, his share was inherited by her.

Both the suits were consolidated and tried by Deputy Collector Sardhana, Meerut. The petitioner examined Vinod Kumar, Lakshman Singh and Jagbir as the witnesses and filed copy of the Will dated 9.5.1998. Smt. Asha examined herself and Rishi Pal and filed School Certificate of Kunwar Pal, Extract of Pariwar register, Voter List and Marriage Certificate. The Deputy Collector, by his judgment dated 15.4.2004 held that due execution of the Will dated 9.5.1998 was proved by Vinod Kumar, the attesting witness of the Will. Smt. Asha filed Photostat copy of the Marriage certificate as such, it was not admissible in evidence and remarriage of Asha to Kunwar Pal was not proved. On these findings it was held that Jagbir had 1/2 share in the land in dispute and the suit was decreed by judgment dated 15.4.2004.

Smt. Asha filed two appeals (registered as Appeal Nos. 64 and 65) from the aforesaid decrees. Before the Appellate Court, Smt. Asha filed original Marriage Certificate. Both the appeals were consolidated and heard by Additional Commissioner, Meerut (respondent-3), who by judgment dated 5.8.2004 held that the Will dated 9.5.1998 was an un-registered document and was executed on the second Saturday; although it was alleged to be written at Tahsil Headquarter by an advocate but no reason has been given for not getting it registered. Lakshman Singh, in his statement has stated that he was also an attesting witness of the Will but he had not signed the Will. The attesting witness Vinod Kumar has stated that the Will was written by pencil but it was written by pen. Vinod Kumar is the near relation of Jagbir. Satyabir was having the only son Kunwar Pal, he was murdered on 19.6.1998, just after six weeks of the execution of the Will, at the time of execution of the Will, there was no reason for him to execute the Will. Jagbir in his statement has admitted that Kunwar Pal was son of Satyabir and Smt. Asha was remarried to Kunwar Pal son of Satyabir. He further admitted that Smt. Asha was widow of Raj Kumar, his son. From the School certificate, Pariwar Register and Voter List it was proved that Kunwar Pal was son of Satyabir. Remarriage of Smt. Asha to Kunwar Pal was proved by the Marriage Certificate. All these were the suspicious circumstances, for which no explanation has been given by the propounder of the Will. Possession of Smt. Asha over the land in dispute was also proved. Therefore due execution of the Will was not proved on the other hand, remarriage of Smt. Asha to Kunwar Pal was proved. On these findings the appeals were allowed and the decrees of the Trial Court were set aside by judgment dated 5.8.2004.

The petitioner filed two second appeals (registered as Second Appeal Nos. 127 and 128) from the aforesaid decrees. Both the second appeals were consolidated and heard by Board of Revenue U.P. (respondent-1) who by his judgment dated 31.7.2013 found that findings of fact recorded the Lower Appellate Court do not suffer from any illegality. On these findings both the second appeals were dismissed by the judgment dated 31.7.2013. Hence this writ petition has been filed.

The Counsel for the petitioner submitted that in the year 1998, registration of the Will of not compulsory u/s 169 of the Act. Due execution of the Will was proved by Vinod Kumar, who was the attesting witness of the Will. The Trial Court found that due execution of the Will was proved. The alleged suspicious circumstances are merely conjectures of the Lower Appellate Court. The parties were Hindu but the alleged Marriage Certificate was issued under Special Marriage Act as such remarriage of Smt. Asha to Kunwar Pal was not proved. It was also not proved that Kunwar Pal was the son of Satyabir. Brother of Smt. Asha was an accused in the murder case of Satyabir, who was murdered, due to execution of the Will in favour of the petitioner. The petitioner was the real brother of Satyabir and was looking after him as such due to natural love and affection the Will was executed by him in favour of the petitioner. The decree of the Lower Appellate Court as well as Board of Revenue are illegal and liable to be set aside. He relied upon the judgment of Supreme Court in Ram Harakh (Dead) by Lrs. Vs. Hamid Ahmed Khan (Dead) by Lrs. and Others, in which it has been held that on the basis of fictitious entry, no right can be conferred, Lachhman Singh (Dead) by L.Rs. Vs. Raja Ram Singh and Others, in which it has been held that when the last tenure holder has executed the Will, then inheritance of his interest will be decided according to the Will. He relied upon decision of this Court in Saudul Azeez Vs. District Judge, Gorakhpur and others, in which it has been held that photostat copy of the document is not admissible in evidence unless it is certified to be true copy by the person who get its photostat and judgment of Madras High Court in M. Kandiah Pillai (died) and six others Vs. S. Mehalingam and seven others, in which it has been held that in the absence of suspicious circumstances, proof of testator''s capacity and his signature on the Will is sufficient.

I have considered the arguments of Counsel for the parties and examined the record. There were two main issues before the Court below, namely (i) whether Kunwar Pal was son of Satyabir and Smt. Asha was remarried to Kunwar Pal after death of her husband Rajbir son of Jagbir? (ii) whether Satyabir executed the Will dated 9.5.1998 in favour of the petitioner?

The petitioner took the plea that Satyabir had no issue and was residing with him, who was looking after him as such due to natural love and affection he voluntarily executed the Will dated 9.5.1998 in his favour. Thus according to the petitioner, Satyabir had no issue. As against it respondent-6 took the plea that Satyabir was married to Smt. Krishna and from the bed lock of Satyabir and Smt. Krishna one son, Kunwar Pal was born. When Kunwar Pal was about one year old, Smt. Krishna left Satyabir and remarried with another man of village Akhlaspur. When Kunwar Pal had become 10 years old, he was brought by Satyabir to his village. He was admitted to the school and he passed Intermediate examination from Lok Priya Inter College Sardhana, Meerut. In order to prove her case, respondent-4 filed School Certificate of Kunwar Pal, Pariwar Register and Voter List and examined Rishi Pal (real brother) of the petitioner. The petitioner also, in cross-examination admitted that Kunwar Pal was the son of Satyabir. The Commissioner relying upon the evidence of respondent-6 as well as admission of the petitioner held that Kunwar Pal was the son of Satyabir, whose name was mutated in the revenue record, after murder of Satyabir. The findings of facts recorded by the Commissioner in this respect do not suffer from any illegality.

So far as remarriage of Smt. Asha to Kunwar Pal is concerned admittedly Khacheru had four sons namely Satyabir, Jagbir, Rishi Pal and Sheesh Pal. Jagbir had one son Rajbir. Smt. Asha was married to Rajbir, from whom she had three children. Smt. Asha took the plea that after death of Rajbir she was remarried to Kunwar Pal with the consent of Jagbir and Satyabir. In order to prove the remarriage, she filed Marriage Certificate, which was duly registered and examined herself and Rishi Pal. As the photostat copy of the marriage certificate was filed before the Trial Court as such it was held as inadmissible. However, the original Marriage Certificate was filed before the Appellate Court. The Commissioner relying upon the Marriage Certificate, statement of respondent-6 and Rishi Pal as well as admission of the petitioner held that remarriage of Smt. Asha to Kunwar Pal was proved. The arguments of the Counsel for the petitioner that the parties were Hindu but the alleged marriage certificate was issued under Special Marriage Act as such remarriage of Smt. Asha to Kunwar Pal was not proved. The factum of remarriage was proved by the oral statement of respondent-6 and Rishi Pal as well as admission of the petitioner. The marriage certificate was a corroborative evidence. Even if the marriage was illegally registered under Special Marriage Act instead of Hindu Marriage Act, findings of fact recorded on the basis of other evidence in respect of remarriage cannot be said to be illegal.

The circumstances that Satyabir was having his only son Kunwar Pal and a daughter-in-law, the case of the petitioner that Satyabir was residing with him cannot be believed. The recital of the Will that his only son was a mentally week person and had absconded thirty years back is false as it had been proved that his only son Kunwar Pal was residing with him in his house at Sardhana. The Will contains the false recital and proved to be a manufactured document. The Commissioner rightly held that second Saturday being a holidays in the Court, there could be no reason for going to Tahsil on second Saturday for execution of the Will, although the Will was alleged to be written at Tahsil Headquarter by an advocate but no reason has been given for not getting it registered, Lakshman Singh, in his statement has stated that he was also an attesting witness of the Will but he had not signed the Will, the attesting witness Vinod Kumar, who is a near relation of Jagbir, has stated that the Will was written by pencil but it was written by pen, Satyabir was murdered on 19.6.1998, just after six weeks of the execution of the Will, at the time of execution of the Will, there was no reason for him to execute the Will, the recitals in the Will are false. There are various suspicious circumstances, the appellant was failed to explain it as held by Supreme Court in Balathandayutham and Another Vs. Ezhilarasan, . Thus due execution of the Will cannot said to be proved. The findings of fact recorded in this respect also" cannot be said to be illegal. In view of the aforesaid discussion, the writ petition has no merit and dismissed.