Resham Trivedi v. Counsel for

1. Heard Shri Prateek Sinha, learned counsel for the petitioner; learned Addl. Chief Standing Counsel for State respondent and Shri Manu Ghildyal, learned counsel for Kanpur Development Authority (in short "KDA").

2. The instant writ petition has been preferred for quashing the impugned order dated 19.12.2024 passed by respondent no.3-Officer on Special Duty, Sale Department, Zone-4, KDA and for a direction to respondents to mutate the name of the petitioner over Plot No.114A, Block-K, Scheme-II, Kidwai Nagar, Kanpur Nagar (bearing House No.128/114A, Block-K, Kidwai Nagar, Kanpur Nagar) (in short "plot/ house in question") in place of late Sri Prabhu Dayal (father-in-law of the petitioner) on the basis of will deed dated

25.05.1997 executed by late Shri Prabhu Dayal in favour of the petitioner.

3. It is contended that plot/ house in question is leased out as a perpetual lease in favour of Shri Prabhu Dayal Trivedi s/o Sukhdeo Prasad on

29.11.1967 by Kanpur Nagar Mahapalika, Kanpur for a term of 999 years, which had been duly registered on 05.12.1967. After formation of KDA, the Kanpur Nagar Mahapalika, Kanpur Nagar is known as KDA. Later on KDA had executed a registered title deed in favour of Shri Prabhu Dayal Trivedi with respect to plot/ house in question. Shri Prabhu Dayal Trivedi had two sons and two daughters namely (1) Shyambabu Trivedi (married), (2) Rambabu Trivedi (husband of the petitioner), (3) Sharla Devi Shukla (married) and (4) Vimala Devi Tiwari (married). The daughters of Prabhu Dayal Trivedi namely Sarla Devi Shukla and Vimla Devi Tiwari had already 2 WRIC No. 30553 of 2025 expired issue less. On 25.05.1997, Prabhu Dayal Trivedi had executed an unregistered will with respect to plot/ house in question in favour of her daughter-in-law i.e. petitioner. It is contended that during his life time Prabhu Dayal Trivedi had made a family arrangement, whereby the entire land of his village had been sold by him and the sale consideration thereof had been given to his eldest son-Shyambabu Trivedi and the plot/ house in question had been given to the wife of his second son i.e. petitioner through unregistered will deed dated 25.05.1997. Sri Prabhu Dayal Trivedi had expired on 3.6.1997. It is contended that with this family settlement the entire family members were fully satisfied and no objection in this regard has ever been raised by any family members.

4. It is contended that after getting knowledge of unregistered will in the year 2024, the petitioner moved mutation application before the respondent authorities with a prayer to mutate the name of the petitioner in place of Late Prabhu Dayal Trivedi with respect to plot/ house in question on the basis of unregistered will deed dated 25.5.1997. However, the same has been rejected by order impugned on the premise that as per the order of the Vice Chairman of the KDA dated 16.02.2024, no mutation on the basis of unregistered will can be done without getting probate from the competent court. As such the petitioner was asked to get probate before getting mutation.

5. It is contended that while passing the impugned order, the respondent authority has totally failed to take into consideration that Wills in State of U.P. are not required to be registered as the Central Act namely the Registration Act, 1908 did not enlist the documents of will in the list of documents that are required to be registered and instead made its registration optional at the discretion of the testator. The respondent has also failed to take into consideration that none of the family members of late Prabhu Dayal Trivedi had ever raised any dispute with respect to family arrangement and the aforesaid unregistered will.

6. Learned counsel for the petitioner, in support of his submissions, has placed reliance on the judgments passed by Division Bench of this Court in Pramila Tiwari v. Anil Kumar Mishra & Ors., 2024 Legal Eagle (ALD) 350 as well as in Ghanshyam Mani Tiwari v. Smt. Saroj Mishra & Ors, First Appeal From Order No.1462 of 2016 dated 19.12.2016. He submits that in 3 WRIC No. 30553 of 2025 Ghanshyam Mani Tiwari (Supra), the Division Bench had considered the appeal preferred under Section 299 of the Indian Succession Act, 1925, which has arisen from the judgment and order dated 27.1.2015 passed by Addl. District Judge, Court No.14, Kanpur Nagar, whereby the application filed by the appellant for probate of will had been rejected observing that in the State of U.P. there is no legal requirement of probate of will. In making such observation, the Addl. District Judge had also placed reliance on the judgments in Administrator General, U.P. Allahabad v. Late Dharamvir alias Mohd. Haroon, AIR 1997 All. 158 and Smt. Bimla Gaindher v. Smt. Usha Gaindher & anr., AIR 2004 All 329. The Division Bench, while deciding the said appeal, not only considered the aforesaid judgments but also considered the judgments in Mst. Janki Bai v. Durga Prasad, AIR 1938 All. 640; Nobat Ram v. Gayatri Devi, 1968 ALJ 69; Nobat Ram v. Gayatri Devi, 1968 ALJ 69; Pitmo v. Syam Singh, AIR 1978 All. 301; Bhaiya Ji v. Jageshwar Dayal Bajpai, AIR 1978 All. 268 Civil Revision No.343 of 2015 (Pratipal Singh v. Jagtar Singh) decided on 7.4.2016 and SCC Revision No.124 of 2016 (Fazalur Rehman v. Gopa Sahu) decided on 28.03.2016. Eventually, the said appeal was dismissed on 19.12.2016 with following observations:- "......10. The Court further said that a combined reading of Sections 213 and 57 of the Act would show that where the parties to 'Will' are Hindus or the properties in dispute are not in territories falling under Section 57(a) and (b), sub-section (2) of Section 213 of the Act, 1925 applies and sub-section (1) has no application. As a consequence, a probate will not be required to be obtained by a Hindu in respect of a 'Will' made outside those territories or regarding the immovable properties situate outside those territories.

11. In Sunil Kumar Vs. Chaitanya Prakash 2014 (10) ADJ 642 a Single Judge following Nobat Ram Vs. Gayatri Devi (supra) and Clarence Pais and others Vs. Union of India (supra) has reiterated the same view that a probate will not be required to be obtained by a Hindu in respect to a 'Will' made in regard to immovable property situated in U.P.

12. It is not disputed before us that the 'Will' in question is covered by Section 57(c) of Act, 1925 and not under Clause (a) or (b) of the said Section. Therefore, in view of aforesaid authorities, it cannot be doubted that view taken by Court below is strictly in accordance with law laid down in various authorities, as above, and when called upon, learned counsel for appellant could not make any distinction in the aforesaid authorities or could place any otherwise binding authority before us to persuade us to take a different view. Hence we find no error in the order impugned in this appeal. 4 WRIC No. 30553 of 2025

13. The appeal is devoid of merit and dismissed accordingly."

7. In Pramila Tiwari (Supra) the following reference was framed for consideration:- "whether a Will reduced into writing prior to 23.08.2004 is required to be compulsorly registered in the event the testator dies after the said date."

8. Division Bench answered the aforesaid reference in para 37 as under:- "37. Thus, our answer, to the question framed, is that sub-Section (3) of Section 169 having been declared as void to the extent it provides for registration of Will, the Wills in State of U.P. are not required to be registered and a Will for its non registration will not be void whether before or after the U.P. Amendment Act, 2004."

9. Learned counsel for the petitioner, in this backdrop, submits that the impugned order is in teeth of the aforesaid judgments and as such the matter may be relegated to the Authority concerned to consider the claim set up by the petitioner in accordance with law.

10. Learned counsel for the KDA has resisted the relief and submitted that as per the policy of the KDA, if the will is unregistered and has been made in favour of such person, who is not of blood relation, before mutation, probate is required from the competent court and as such the Authority has rightly negated the claim of the petitioner. There is no illegality or infirmity in the order impugned, which warrant interference in the instant matter.

11. Considering the facts and circumstances of the case, we are of the considered opinion that the judicial pronouncement holding the field is having overriding effect over any administrative order. We find that the impugned order is in teeth of the aforesaid judicial pronouncements and as such we find that the order impugned is not sustainable and liable to be set aside.

12. Accordingly, the order impugned is set aside. The matter is relegated to respondent no.3 to revisit in the matter and pass appropriate order in accordance with law and taking into consideration the judgments cited above expeditiously and preferably within two months from the date of production of certified copy of this order but certainly after giving opportunity to all the 5 WRIC No. 30553 of 2025 stake holders in the matter.

13. The writ petition stands partly allowed accordingly. (Anish Kumar Gupta,J.) (Mahesh Chandra Tripathi,J.) September 11, 2025 SP/ SURYA PRAKASH High Court of Judicature at Allahabad

1. Heard Shri Prateek Sinha, learned counsel for the petitioner; learned Addl. Chief Standing Counsel for State respondent and Shri Manu Ghildyal, learned counsel for Kanpur Development Authority (in short "KDA").

2. The instant writ petition has been preferred for quashing the impugned order dated 19.12.2024 passed by respondent no.3-Officer on Special Duty, Sale Department, Zone-4, KDA and for a direction to respondents to mutate the name of the petitioner over Plot No.114A, Block-K, Scheme-II, Kidwai Nagar, Kanpur Nagar (bearing House No.128/114A, Block-K, Kidwai Nagar, Kanpur Nagar) (in short "plot/ house in question") in place of late Sri Prabhu Dayal (father-in-law of the petitioner) on the basis of will deed dated

25.05.1997 executed by late Shri Prabhu Dayal in favour of the petitioner.

3. It is contended that plot/ house in question is leased out as a perpetual lease in favour of Shri Prabhu Dayal Trivedi s/o Sukhdeo Prasad on

29.11.1967 by Kanpur Nagar Mahapalika, Kanpur for a term of 999 years, which had been duly registered on 05.12.1967. After formation of KDA, the Kanpur Nagar Mahapalika, Kanpur Nagar is known as KDA. Later on KDA had executed a registered title deed in favour of Shri Prabhu Dayal Trivedi with respect to plot/ house in question. Shri Prabhu Dayal Trivedi had two sons and two daughters namely (1) Shyambabu Trivedi (married), (2) Rambabu Trivedi (husband of the petitioner), (3) Sharla Devi Shukla (married) and (4) Vimala Devi Tiwari (married). The daughters of Prabhu Dayal Trivedi namely Sarla Devi Shukla and Vimla Devi Tiwari had already 2 WRIC No. 30553 of 2025 expired issue less. On 25.05.1997, Prabhu Dayal Trivedi had executed an unregistered will with respect to plot/ house in question in favour of her daughter-in-law i.e. petitioner. It is contended that during his life time Prabhu Dayal Trivedi had made a family arrangement, whereby the entire land of his village had been sold by him and the sale consideration thereof had been given to his eldest son-Shyambabu Trivedi and the plot/ house in question had been given to the wife of his second son i.e. petitioner through unregistered will deed dated 25.05.1997. Sri Prabhu Dayal Trivedi had expired on 3.6.1997. It is contended that with this family settlement the entire family members were fully satisfied and no objection in this regard has ever been raised by any family members.

4. It is contended that after getting knowledge of unregistered will in the year 2024, the petitioner moved mutation application before the respondent authorities with a prayer to mutate the name of the petitioner in place of Late Prabhu Dayal Trivedi with respect to plot/ house in question on the basis of unregistered will deed dated 25.5.1997. However, the same has been rejected by order impugned on the premise that as per the order of the Vice Chairman of the KDA dated 16.02.2024, no mutation on the basis of unregistered will can be done without getting probate from the competent court. As such the petitioner was asked to get probate before getting mutation.

5. It is contended that while passing the impugned order, the respondent authority has totally failed to take into consideration that Wills in State of U.P. are not required to be registered as the Central Act namely the Registration Act, 1908 did not enlist the documents of will in the list of documents that are required to be registered and instead made its registration optional at the discretion of the testator. The respondent has also failed to take into consideration that none of the family members of late Prabhu Dayal Trivedi had ever raised any dispute with respect to family arrangement and the aforesaid unregistered will.

6. Learned counsel for the petitioner, in support of his submissions, has placed reliance on the judgments passed by Division Bench of this Court in Pramila Tiwari v. Anil Kumar Mishra & Ors., 2024 Legal Eagle (ALD) 350 as well as in Ghanshyam Mani Tiwari v. Smt. Saroj Mishra & Ors, First Appeal From Order No.1462 of 2016 dated 19.12.2016. He submits that in 3 WRIC No. 30553 of 2025 Ghanshyam Mani Tiwari (Supra), the Division Bench had considered the appeal preferred under Section 299 of the Indian Succession Act, 1925, which has arisen from the judgment and order dated 27.1.2015 passed by Addl. District Judge, Court No.14, Kanpur Nagar, whereby the application filed by the appellant for probate of will had been rejected observing that in the State of U.P. there is no legal requirement of probate of will. In making such observation, the Addl. District Judge had also placed reliance on the judgments in Administrator General, U.P. Allahabad v. Late Dharamvir alias Mohd. Haroon, AIR 1997 All. 158 and Smt. Bimla Gaindher v. Smt. Usha Gaindher & anr., AIR 2004 All 329. The Division Bench, while deciding the said appeal, not only considered the aforesaid judgments but also considered the judgments in Mst. Janki Bai v. Durga Prasad, AIR 1938 All. 640; Nobat Ram v. Gayatri Devi, 1968 ALJ 69; Nobat Ram v. Gayatri Devi, 1968 ALJ 69; Pitmo v. Syam Singh, AIR 1978 All. 301; Bhaiya Ji v. Jageshwar Dayal Bajpai, AIR 1978 All. 268 Civil Revision No.343 of 2015 (Pratipal Singh v. Jagtar Singh) decided on 7.4.2016 and SCC Revision No.124 of 2016 (Fazalur Rehman v. Gopa Sahu) decided on 28.03.2016. Eventually, the said appeal was dismissed on 19.12.2016 with following observations:- "......10. The Court further said that a combined reading of Sections 213 and 57 of the Act would show that where the parties to 'Will' are Hindus or the properties in dispute are not in territories falling under Section 57(a) and (b), sub-section (2) of Section 213 of the Act, 1925 applies and sub-section (1) has no application. As a consequence, a probate will not be required to be obtained by a Hindu in respect of a 'Will' made outside those territories or regarding the immovable properties situate outside those territories.

11. In Sunil Kumar Vs. Chaitanya Prakash 2014 (10) ADJ 642 a Single Judge following Nobat Ram Vs. Gayatri Devi (supra) and Clarence Pais and others Vs. Union of India (supra) has reiterated the same view that a probate will not be required to be obtained by a Hindu in respect to a 'Will' made in regard to immovable property situated in U.P.

12. It is not disputed before us that the 'Will' in question is covered by Section 57(c) of Act, 1925 and not under Clause (a) or (b) of the said Section. Therefore, in view of aforesaid authorities, it cannot be doubted that view taken by Court below is strictly in accordance with law laid down in various authorities, as above, and when called upon, learned counsel for appellant could not make any distinction in the aforesaid authorities or could place any otherwise binding authority before us to persuade us to take a different view. Hence we find no error in the order impugned in this appeal. 4 WRIC No. 30553 of 2025

13. The appeal is devoid of merit and dismissed accordingly."

7. In Pramila Tiwari (Supra) the following reference was framed for consideration:- "whether a Will reduced into writing prior to 23.08.2004 is required to be compulsorly registered in the event the testator dies after the said date."

8. Division Bench answered the aforesaid reference in para 37 as under:- "37. Thus, our answer, to the question framed, is that sub-Section (3) of Section 169 having been declared as void to the extent it provides for registration of Will, the Wills in State of U.P. are not required to be registered and a Will for its non registration will not be void whether before or after the U.P. Amendment Act, 2004."

9. Learned counsel for the petitioner, in this backdrop, submits that the impugned order is in teeth of the aforesaid judgments and as such the matter may be relegated to the Authority concerned to consider the claim set up by the petitioner in accordance with law.

10. Learned counsel for the KDA has resisted the relief and submitted that as per the policy of the KDA, if the will is unregistered and has been made in favour of such person, who is not of blood relation, before mutation, probate is required from the competent court and as such the Authority has rightly negated the claim of the petitioner. There is no illegality or infirmity in the order impugned, which warrant interference in the instant matter.

11. Considering the facts and circumstances of the case, we are of the considered opinion that the judicial pronouncement holding the field is having overriding effect over any administrative order. We find that the impugned order is in teeth of the aforesaid judicial pronouncements and as such we find that the order impugned is not sustainable and liable to be set aside.

12. Accordingly, the order impugned is set aside. The matter is relegated to respondent no.3 to revisit in the matter and pass appropriate order in accordance with law and taking into consideration the judgments cited above expeditiously and preferably within two months from the date of production of certified copy of this order but certainly after giving opportunity to all the 5 WRIC No. 30553 of 2025 stake holders in the matter.

13. The writ petition stands partly allowed accordingly. (Anish Kumar Gupta,J.) (Mahesh Chandra Tripathi,J.) September 11, 2025 SP/ SURYA PRAKASH High Court of Judicature at Allahabad