Suresh Prasad Gautam and Others vs Deputy Director of Consolidation and Others

Prakash Krishna, J.—Kamla Prasad, Raj Bahadur and Jai Bahadur were the sons of Umesh Singh, they were brothers.

Raj Bahadur died issueless on 27.9.2002. The dispute in the present writ petition is confined to the succession of the estate i.e., the agricultural land left by Raj Bahadur. The petitioners are the sons of Jai Bahadur while the contesting respondents are sons of other brother Kamla Prasad.

Jai Bahadur set up a Will dated 13.9.2002 and the respondents herein set up Will dated 15.9.2002, both allegedly executed by Raj Bahadur in their favour. These two Wills were produced by the respective parties before the Consolidation Officer in support of their respective cases for recording of their names over the land in dispute, left by Raj Bahadur. It appears that there was a compromise between the parties which was verified by the Consolidation Officer accepting that in the place of deceased Raj Bahadur, the names of all the parties be recorded.

The said compromise was taken on record by the order dated 15.9.2005. The Consolidation Officer found that Raj Bahadur''s condition was very critical on 13.9.2002 and he was hospitalized on 14.9.2002 at Varanasi. He was thus not in a position either to execute the Will on 13.9.2002 as was set up by Jai Bahadur Singh, (father of the petitioners) nor he could execute the Will deed dated 15.9.2002, set up by the contesting respondent Nos. 4, 5 & 6. The Consolidation Officer, therefore ordered that the devolution of the property of deceased Raj Bahadur shall take place under the general rule of succession i.e.. equal shares between two branches of Kamla Prasad and Jai Bahadur as prescribed u/s 171 of U.P.Z.A. & L.R. Act. The petitioners herein carried the matter in two appeals before the Settlement Officer of Consolidation which were dismissed by the order dated 7.8.2006 and these orders have been confirmed in two revisions by the Deputy Director of Consolidation by the impugned order dated 27.6.2007.

Challenging the afore stated three orders, the present petition has been preferred.

Heard Shri D.S.P Singh, learned Counsel for the petitioners and Shri L.C. Srivastava, learned Counsel for the contesting respondents.

The learned Counsel for the petitioners submits that the Will which was set up by the respondents herein dated 15.9.2002 was accepted by the petitioners through the compromise before the Consolidation Officer and therefore, the property should be distributed accordingly. In reply, the learned Counsel for the respondents submits that the respondents do not want to place any reliance upon the Will dated 15.9.2002 which was set up by them and the said Will was taken back from the record of the case at the appellate stage. The Will dated 15.9.2002 has not relied upon. The compromise between the parties as such is therefore, not binding. The three authorities below have found that both the Wilis were surrounded by suspicious circumstances and were discarded by them. The consolidation authorities have rightly held that the parties are entitled to succeed the disputed property as per section 171 of the U.P. Zamindari Abolition & Land Reforms Act, submits the counsel.

It may be stated at the very outset that the petitioners did not challenge the findings recorded by the Consolidation Courts rejecting the Will which was set up by jai Bahadur Singh (father of the petitioners'' herein).

Much emphasis was laid that the Will dated 15.9.2002 as was set up by the respondents herein should have been formed the basis for allotment of the land of deceased Raj Bahadur, keeping in view the compromise entered into between the parties in particular.

Considered the respective submissions of the learned Counsel for the parties.

A copy of the compromise application has been annexed as Annexure-1 to the writ petition.

It is a short document consisting of three paragraphs. In paragraph 1 it has been stated that the second party has filed Will dated 15.9.2002 which is valid as the first party has no objection with regard to the said Will. In second paragraph, it is stated that the testator Raj Bahadur Singh was the brother of the father of the parties and he was uncle in law of Smt. Urmila Devi and died on 27.9.2002. After his death all the parties are in occupation of the property of testator in equal share i.e., l/4th each. In paragraph-3, it is stated that if the names of the parties after death of Raj Bahadur is substituted on the basis of the Will they will have no objection.

Thereafter it has been prayed for that in place of name of deceased Raj Bahadur S/o Uma shanker alias Uma Prasad Singh, names of the parties i.e., Suresh Prasad Gautam, jitendra Kumar Sharma S/o of jai Bahadur Singh and Urmila Devi widow of Late Ramesh Kumar Gautam and the name of second party Kaliash Nath Singh S/o late Kamla Prasad Singh be ordered to be substituted as heirs. The said compromise application appears to have been signed by Suresh Prasad Gautam and Jitendra Kumar Sharma as first party and Kailash Nath Singh as second party only. A reading of the compromise application would show that the parties agreed that their names be substituted in place of deceased Raj Bahadur. It does not appear that all of them agreed that the lis between the parties be decided in terms of the aforesaid compromise. Even after filing of the compromise application, each party pressed the respective Wills as propounded them to claim the property of Raj Bahadur to the exclusion of the other party. The Consolidation Officer has found that Raj Bahadur fell seriously ill on 13.9.2002 and was taken to hospital in a serious condition in the state of unconsciousness. In this fact situation, the execution of the Will on 15.9.2002 by such person at his residence is not possible. In this view of the matter, the two Wills were rightly discarded. The Consolidation Officer has further noticed that in the alleged compromise the widow of Jai Bahadur (Smt. Chandrawati, respondent No. 7) is not included. The non exclusion of Smt. Chandrawati makes it clear that the compron(sic) was only for the purposes of continuous of the proceedings u/s 12 of the Act and it was never intented that the property shall be distributed as per Will dated 15.9.2002.

The learned Counsel for the petitioners has relied upon two decisions :

*Madhukar D. Shende v. Tarabai Aba Shedage, 2002 (93) RD 48

*Smt. Shyama Devi alias Shyam Lata v. Deputy Director of Consolidation, Allahabad and Others. 2009 (106) RD 760

The above decisions relied upon by the learned Counsel for the petitioners have no application to the facts of the present case and it is not necessary to refer them in detail.

In the above fact situation, I do not find that any illegality was committed by the Consolidation Courts. The Will dated 15.9.2002 which was set up by the contesting respondents having been taken away from the record, and they do not want to press the claim on the basis of the said Will, the petitioners could not insist that the distribution of the property should be done as per the Will dated 15.9.2002. In the alternative, it is not a fit case to exercise extraordinary jurisdiction in favour of either party when both of them have come forward on fabricated documents (Wills). No relief specially equitable relief can be granted to a person who has come to Court with unclean hands. Substantial justice has been done to the parties and no interference under Article 226 of the Constitution of India is called for.

There is no merit in the writ petition. The writ petition is dismissed but no order as to costs.