Swadesh Kumar Katiyar vs State of U.P. and others

Amreshwar Pratap Sahi, J.—Heard Learned Counsel for the petitioner.

One Smt. Batahso widow of late Ram Swaroop was the recorded tenure holder. The pedigree as can be reconstructed on the basis of documents on record is as follows:

Ram Swaroop are three brothers, Bhagwan Deen, Dulare Lal and Ram Swaroop himself. Ram Swaroop was issueless and was succeeded by his wife who also died, where after two competing Wills were set up. One Will was set up by the son of Om Prakash petitioner herein, who is the grandson of Bhagwan Deen and the other competing Will has been set up by Mitthu Lal the uncle of the petitioner.

It is therefore a contest between the nephew and uncle on the basis of two competing Wills. A third objection appears to have came forth from respondents 7, 8 and 9 contending that the order of mutation in favour of all the heirs recorded through PA-11 by way of succession should be maintained.

The Tehsildar passed an order for mutating the name of the petitioner on the basis of his unregistered Will. On appeal the same has been reversed holding that the Tehsildar has not examined the Will in the perspective of section 68 of the Indian Evidence Act, 1872, and has therefore, unilaterally believed the Will set up by the petitioner. Hence, the appeal was allowed and the order of the Tehsildar was set aside. The revision filed by the petitioner has also been dismissed upholding the appellate order.

Having heard Learned Counsel for the petitioner Sri. Kushwaha what appears is that both the competing Wills were allegedly set up as unregistered Wills almost one year after the death of Smt. Batasho. According to the ordinary line of succession after her death the holding would be divisable amongst the heirs according to the provisions of the U.P. Z.A. & L.R. Act, 1950. The petitioner and the contesting respondents through the Wills were attempting to avoid the natural line of succession.

In my opinion, also the appellate authority has adopted the correct approach by discarding both the Wills. Being an order of summary nature, the same shall not be an impediment in the passage of either of the petitioner or the contesting respondents to stake their claim on the basis of such unregistered Wills by filing a regular suit.

I am not inclined to interfere with the impugned order in the exercise of jurisdiction under Article 226 of the Constitution of India.

The writ petition is dismissed.