Sarvesh Kumar vs Rohtash

Ram Surat Ram (Maurya), J.—Heard Sri W.H. Khan, Senior Advocate, assisted by Sri J.H. Khan, for the petitioners. The writ petition has been filed against the orders of Tahsildar, dated 22.9.2011, Sub-Divisional Officer, dated 17.4.2012 and Additional Commissioner, dated 7.6.2012 and 14.8.2012, passed in the proceeding under section 34 of U.P. Land Revenue Act, 1901 (hereinafter referred to as the Act).

The dispute relates to the properties of Umrao Singh son of Jhanna Singh, who had 1/2 share in the land of villages Rampur Ghoghar-M and Rampur Ghoghar-A and a residential house. On the death of Umrao Singh on 11.5.2004, three sets of mutation applications were filed for mutation claiming them as his heirs. The petitioners filed an application for mutation of their names on the basis of Will dated 15.4.2004 (registered on 3.6.2004) allegedly executed by Umrao Singh in their favour. Harkesh Singh filed another application for mutation of his name along with Ram Swaroop and Narain Singh (respondents-4 and 5), being brother''s son of Umrao Singh as his heirs under section 171 of U.P. Act No. 1 of 1951. Rohtash and Vikas (respondents-1 and 2) filed another application for mutation of their names on the basis of Will dated 7.5.2004 allegedly executed by Umrao Singh in their favour. It may be mentioned that in the meantime, Supervisor Kanoongo mutated the names of Harikesh Singh, Ram Swaroop and Narain Singh, on the basis of report on PA-11-A on 1.6.2004 as the heirs.

Aforesaid cases were consolidated and tried by Tahsildar (respondents). Before Tahsildar, the petitioners examined Sarvesh Kumar (petitioner-1), Subhash Singh, attesting witness of the Will dated 15.4.2004, Sri Naresh Kumar, Advocate and Dr. Arvind Kumar Sharma and filed original Will dated 15.4.2004 and other documentary evidence. Harkesh examined himself and one witness Ram Singh. Rohtash and another examined Rohtash Kumar and Harpal Singh witness. Tahsildar, by order dated 22.9.2011 held that in the notice as published by Sub-Registrar, for giving public notice on 19.5.2004, it has been mentioned that Umrao Singh left behind him no heir except the persons in whose favour Will was executed, while he had to give notice to kith and kin of Umrao before registration of the Will. Notice was published in weakly newspaper "Muradabad Rank" and not in daily newspaper having circulation in the locality. In such circumstances, the will set up by the petitioners was a suspicious Will. Rohtash Kumar could not proved due execution of the Will. The names of the heirs of Umrao Singh were rightly mutated by Supervisor Kanoongo on 1.6.2004, according to the provisions of section 171 of U.P. Act No. 1 of 1951. On these findings mutation applications were dismissed and order of Supervisor Kanoongo dated 1.6.2004 was maintained.

The petitioners filed two appeals (registered as Appeal Nos. 34 and 35 of 2010-11). Rohtash Kumar and another filed another appeal (registered as Appeal No. 26 of 2011-12). All the appeals were consolidated and heard by Sub-Divisional Officer (respondent-8), who by his judgment dated 17.4.2012 held that Will dated 15.4.2004 was on two pages but signatures of witnesses were not on the first page. No reason has been mentioned in the Will for disentitling the nephews, who were otherwise heirs under section 171 of U.P. Act No. 1 of 1951 from inheritance in the Will. Although registration of the Will was not compulsory even then it was got registered after death of Umrao. Singh but no reason has been given for not making any effort to get the Will registered during life time of Umrao Singh although admittedly he was in good health up to 3.5.2004. Sarvesh Kumar, in his affidavit filed before Sub-Registrar has mentioned that Will was in respect of the property of village Rampur Ghoghar-M although Will was in respect of the properties of two villages and residential house. In the notice as published by Sub-Registrar, for giving public notice on 19.5.2004, it has been mentioned that Umrao Singh left behind him no heir except the persons in whose favour Will was executed, while he had to give notice to kith and kin of Umrao Singh before registration of the Will. Notice was published in weakly newspaper "Muradabad Rank" and not in daily newspaper having circulation in the locality. Subhash Singh, the attesting witness, in his statement has stated that he had no knowledge as to Umrao Singh was having how many brothers. Both the attesting witnesses of the Will were residents of village Kamalpuri and not of village of Umrao Singh. Thus the Will is surrounded by suspicious circumstances and the pro-pounders have failed to remove the suspicious circumstances. On these findings the appeals were dismissed. The petitioners filed a revision (registered as Revision No. 32 of 2011-12) from the aforesaid order. The revision was heard by Additional Commissioner (respondent-7), who by his judgment dated 7.6.2012 affirmed the findings of the Appellate Court and dismissed the revision. The petitioners filed a recall application on the ground that Rohtash and Vikash filed another revision before Board of Revenue, U.P., in which interim order was granted on 29.5.2012 as such their revision was also liable to be transferred to Board of Revenue, U.P. However Additional Commissioner, by order dated 14.8.2012, rejected the recall application. Hence this writ petition has been filed with the delay about two years.

The Counsel for the petitioners submitted that sections 40 and 41 of Registration Act, 1908 contemplates for registration of the Will after death of testator. Sub-Registrar, on being satisfied that the Will was executed by testator, at the time of presentation of the Will for registration, testator was dead and the Will was presented by the beneficiary of the Will, registered it according to the provisions of section 41 of Registration Act, 1908. The natural heirs of Umrao had no right to file any objection before Sub-Registrar, or contest the proceeding for registration of the Will as such any defect in the affidavit filed by Sarvesh Kumar or in publication of public notice by Sub-Registrar cannot be taken a ground for ignoring the Will. The Will dated 15.4.2004, being a registered document carries a presumption, regarding its genuineness. Its due execution was proved by attesting witness namely Subhash Singh. There was absolutely no suspicious circumstance in execution of the Will as it was proved that Umrao Singh was living along with the family of the petitioners, who alone were rendering his services during his life time while family of Harkesh was residing separately. The Courts below have illegally ignored the Will. The Will dated 7.5.2004 was forged will as at that time Umrao was in hospital. He relied upon the judgment of this Court in Kumari Sushila Saxena Vs. Sub-Registrar and Others Rama Pati Tiwari Vs. District Registrar and Others, and Krishna Kumar and Others Vs. Court of District Registrar/A.D.M. (F and R) and Others, .

I have considered the arguments of the Counsel for the petitioners and examined the record. Although registration of the Will dated 15.4.2004 was validly done. But mere registration of the Will after death of the testator does not raise any presumption of its correctness nor it can be taken as proof of due execution. A Will is required to be executed according to the provision of section 63 of Indian Succession Act, 1925 and its execution is required to be proved according to the provisions of section 68 of the Evidence Act, 1872. A Bench of Four Hon''ble Judges of Supreme Court in Rani Purnima Devi and Another Vs. Kumar Khagendra Narayan Dev and Another, held that the mere fact that a Will is registered Will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a Will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the Will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the Will did not read it over to the testator or did not bring home to him that he was admitting the execution of a Will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the Will) that the testator knew that it was a Will the execution of which he was admitting, the fact that the Will was registered would not be of much value. It is not unknown that registration may take place without the executant really knowing what he was registering.

Supreme Court again in Bhagat Ram and Another Vs. Suresh and Others, , held that the certificate of registration under section 60 of the Registration Act, 1908 raises a presumption under section 114 Illustration (e) of the Evidence Act that he had regularly performed his duty and therefore the facts spelled out by the endorsements made under sections 58 and 59 of the Registration Act may be presumed to be correct without formal proof thereof. The duties discharged by the registering officer do not include attestation or verification of attestation of Will as required by the rules enacted by section 63 of the Succession Act. An endorsement by a registering officer is not by itself a proof of the Will having been duly executed and attested. Same view has been taken in S.R. Srinivasa and Others Vs. S. Padmavathamma, .

In this case, Vivek Kumar and Subhash Singh, both the attesting witnesses are residents of village Kamalpuri. Vivek Kumar is the brother-in-law of Sarvesh Kumar but he did not turn up for cross-examination. Subhash Singh was a stranger to the family, he did not know even about the brothers of Umrao Singh. There was no reason for Umrao Singh to ask him for attesting his Will. Sub-Divisional Officer found that no reason has been mentioned in the Will for disentitling the nephews, who were otherwise heirs under section171 of U.P. Act No. 1 of 1951 from inheritance in the Will. Although registration of the Will was not compulsory even then it was got registered after death of Umrao Singh but no reason has been given for not making any effort to get the Will registered during life time of Umrao Singh although admittedly he was in good health up to 3.5.2004. Subhash Singh, the attesting witness, in his statement has stated that he had no knowledge as to Umrao Singh was having how many brothers. Both the attesting witnesses of the Will were residents of village Kamalpuri and not of village of Umrao Singh. These circumstances were taken as suspicious circumstances for ignoring the will. Supreme Court in S.R. Srinivasa v. S. Padmavathamma, 2010 (111) RD 675 (SC) held that cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the Will. That suspicion cannot be removed by the mere assertion of the propounder that the Will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time When the Will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the Will excite the suspicion of the Court, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator. Thus reason given by the Revenue Court for ignoring the will cannot be said to be illegal. The petitioners have alternative remedy of suit to establish their right on the basis of will in view of section 40-A of U.P. Land Revenue Act, 1901. In case the suit is filed, it may be decided on its merit without being influenced by any of the findings of this Court or by Revenue Court. The writ petition is dismissed on the ground of alternative remedy.