Ram Subhag vs Kailash and another

By this writ petition under Article 226 of the Constitu�tion the prayer is that the order dated 1961993 passed by Deputy Director of Consolidation, Gorakhpur, in revision under Section 48 of the U. P. Consolidation of Holdings Act, 1953 (for short, the Act) and the order of the Settlement Officer (Consolidation) dated 28101991 passed in appeal by the petitioner and the order dated 1451987 passed by the Consolida�tion Officer, be quashed by issuing a writ of certiorari.

Portrayal of the essential facts are that in basic year over chak no. 50 B the name of Smt. Bhuili deceased was recorded. An application was filed by the petitioner under Section 12 of the Act that he is the heir of Smt. Bhuili, as Ambar, the husband of Smt. Bhuili died first, and hisheir was Prasad, father of the petitioner hence he was preferential heir, and the will dated 1291978, executed by her was fictitious and was liable to be rejected. A suit was filed in the Civil Court in respect of validity of will, hence the legatee can not get any right on the basis of will and his name be entered as bhumidhar and that of Smt. Bhuili be expunged. The claim of the petitioner was contested by Respondent No. 1 Kailash who alleged that he was legatee as he obtained a registered will on 1291978 from Smt. Bhuili as a Bhumidhar and will was legal, and in any case he. may be entered as Bhumidhar in place of Smt. Bhuili and the application of the petitioner be rejected.

All the Consolidation Authorities by the aforesaid impugned orders had rejected the claim of the petitioner and held the registered will in favour of Respondent No. 1 to have been proved, hence his name was ordered to be entered as Bhumidhar in place of Smt. Bhuili.

The learned counsel for the petitioner urged that as the will was voidable document hence Consolidation Authorities have no jurisdic�tion to adjudicate upon it, and Smt. Bhuili has no right to execute the will and the will was not legally proved hence no right accrued on the basis of the will. The findings of Consolidation Authorities are perverse and liable to be quashed. Reliance was placed on Gorakhnath Dubey v. Hari Narain Singh and others AIR 1973 SC 2451) and Simlesh Kumar v. Gaon Sabha, Usker, Gazipur (1977 ALR 334 F. B.).

As regards the point as to whether the Consolidation Authorities have jurisdiction to decide the validity of the will, suffice it to say that the will was the basis of the claim of the respondent and its validity could be adjudicated upon by the Consolidation Authorities. It was not a void document so as to ignore.it. Their Lordships of the Supreme Court in Gorakhnath Dubey''s case (Supra) observed as follows :

"We think that a distinction can be made between cases where a document is wholly or partially invalid so that it can be dis�regarded by any court or authority and one where it has to be actually set aside before it can cease to have legal effect. An alienation made in excess of power to transfer would be to the extent of the excess of power, invalid. An adjudication on the effect of such a purported alienation would be neces�sarily implied in the decision of a dispute involving conflicting claims to rights or interests in land which are the subject matter of consolidation proceedings. The existence and quantum of rights claimed or denied will have to be declared by the consolidation authorities which would be deemed to be invested with jurisdiction, by the necessary implication of their statutory powers to adjudicate upon such rights and interests in land to declare such documents effec�tive or ineffective but where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation it could be urged that the consolidation authorities have no power to cancel the deed, and, therefore, it must be held to be binding on them so long as it is not cancelled by a court having the power to cancel it. In the case before us the plaintiffs'' claim is that the sale of his half share by his uncle was invalid, inoperative, and void, such a claim could be adjudicated upon by consolidation Courts." I am of the opinion that in view of the observations madeabove, as the legal effect of the will was involved, the consolidation Authorities have jurisdiction to adjudicate upon the validity of the will and it has correctly been held that the will was valid. Similar view has been taken in a Division Bench decision of this Court in Jagannath Shukla v. Sita Ram (1969 ALJ 768) which has been approved in Gorakhnath Dubey''s case.

The next point was urged about the validity of the will and whether Smt. Bhuili has power to execute it, as the testator has transferable Bhumidhari rights hence Smt. Bhuili was legally entitled to execute the will in favour of respondent no. 1. Earlier the petitioner had denied the right of Smt. Bhuili to inherit half share of Ambar, her husband. In that connection the litigation was started and matter was taken up to this Court and it was held that Smt Bhuili has half share of her husband, and was entitled to be recorded became final. The orders in those proceedings would operate as res judicata, consequently Smt. Bhuili is entitled to half share held by her husband Ambar.

Reverting to the next point as to whether the will executed by Smt. Bhuili has been proved according to law. Smt. Bhuili was entitled to half share of her husband Ambar, as orders in earlier proceedings brought upto this Court became final and would operate as Res judicata. In view of Section 169(3) of U. P. Z. A. and L. R. Act, a will in order to be valid and operative must be in writing (not oral) and attested by two persons. To prove the will one Prem Narain Lal, Advocate, one of the attesting witnesses was produced. He has proved the attestation and has been correctly relied upon by the Deputy Director of Consolidation etc. There is no suspicious circumstance in the will. It has been proved according to law

Simlesh Kumar v. Gaon Sabha (Supra) relied upon by the learned Counsel for the petitioner was a case based on different facts. In that case a Full Bench of this Court held that lease granted by Gaon Sabha could not be cancelled by the Consolidation Authorities.

In view of the discussions made hereinbefore the petition fails and is dismissed summarily. A copy of this order be issued within 24 hours.

(Petition dismissed.)