High Court · 2025

1. Heard Shri Yogesh Singh, learned counsel for the petitioner, Shri M.E. Khan, learned counsel for respondent no. 5, Shri Anubhav Prakash Srivastava, learned counsel appearing for respondent no. 6 and Dr. Krishna Singh, learned Standing Counsel for the respondent-State.

2. Vakalatnamas filed by Shri M.E. Khan on behalf of respondent no. 5 and Shri Anubhav Prakash Srivastava, on behalf of respondent no. 6 are taken on record.

3. The petitioners have approached this Court seeking quashing of the order dated 07.12.2024 passed by the Deputy Director of Consolidation, Lucknow dismissing the revision of the petitioner, as a consequence, the order dated 02.12.2022 passed by the Settlement Officer of Consolidation, Lucknow was affirmed which in turn upholds the order dated 24.04.2014 passed by the Consolidation Officer, Lucknow.

4. Sri Gurusaran son of Babu Deen was the undisputed recorded tenure holder who is said to have died on 03.08.1997 during the consolidation operations in the village in question. Upon his death, three conflicting claims were set up, one by Aash Kumari (also referred in the proceedings before the Consolidation courts as "Aash") who was the wife of Gurusaran, the second claim was setup by the petitioner Smt. Munera Devi who was the sister of Gurusaran and the third claim by Smt. Rajkumari, the mother of Sri Gurusaran.

5. The petitioner Smt. Munera Devi claimed that Gurusaran had executed an unregistered Will in her favour dated 20.07.1987 and on the basis of the said Will she inherited the property from her brother. She also stated that though Aash Kumari was the wife of Gurusaran, however, she was divorced and in this view of the matter, the petitioner both being the sister and a legal heir as well as also having a Will in her favour was the rightful person to succeed to the estate and property of Sri Gurusaran.

6. Smt. Aash Kumari on the other hand pushing her claim on the basis of being the widow of Gurusaran and in her presence Smt. Munera Devi being the married sister had no right. She also challenged the Will stating that it was fictitious and in such circumstances, she was the rightful and preferential heir of Sri Gurusaran.

7. The third set of objections were put forth by Smt. Rajkumar, the mother of Gurusaran. During the consolidation proceedings, Smt. Rajkumar also expired and she is said to have executed her registered Will dated 28.02.2002 in favour of the petitioner and as such the entire property came in the hands of the petitioner both from her mother as well as from her brother.

8. The record reveals that the Consolidation Officer upon considering the pleadings framed three issues and after permitting the parties to lead evidence, it did not find favour with the claim of the petitioner and ordered that the property of Gurusaran be recorded in the name of Aash Kumari by means of its judgment dated 08.07.2005.

9. Initially, a recall application was moved by Smt. Munera Devi which was allowed on 30th August, 2001 by the Consolidation Officer. Thereafter the matter was considered afresh on merits and the Consolidation Officer vide its order dated 28.03.2009 again passed an order in favour of Smt. Aash Kumari.

10. Once again Smt. Munera Devi filed an appeal which came to be allowed on 30.08.2010 and after setting aside the order passed by the Consolidation Officer, the matter was remanded once again to the Consolidation Officer to decide the matter afresh after affording full opportunity of hearing to the parties and permitting them to lead any evidence, if required.

11. The Consolidation Officer after complying with the order dated 15.08.2010 once again re-considered the matter and vide order dated 24.04.2014 uphled the claim of Aash Kumari and rejected the objections filed by Smt. Munera Devi.

12. Smt. Munera Devi again filed an appeal which came to be dismissed on 02.12.2022 and then the matter was further escalated before the Deputy Director of Consolidation who also dismissed the revision on 07.12.2024 and in the aforesaid factual backdrop, Smt. Munera Devi has approached this Court by means of the instant petition.

13. The learned counsel for the petitioner has submitted that the Consolidation Courts have clearly misdirected themselves while passing the three impugned orders.

14. It is urged that Smt. Munera Devi had a Will in her favour dated 20th July, 1987. The said Will was duly proved in accordance with Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act.

15. It is further urged that the statement of the attesting witnesses of the will namely Shiv Prakash and Sri Sarju Prasad was recorded before the Consolidation Officer and both the attesting witnesses clearly proved the Will including its due execution and attestation.

16. It is further urged that even the scribe of the Will namely Sri Arjun Singh, Advocate was also examined. The petitioner examined herself as one of the witnesses and from the conjoint reading of the evidences recorded before the Consolidation Officer, the Will of Gurusaran was duly proved, however, the Consolidation Officer merely on surmises and conjectures found that the Will not proved and the manner in which the evidence has been appreciated is patently erroneous.

17. It is further urged that the reason for not accepting the Will executed by Sri Gurusaran was most frivolous and the Will was not found to be proved on baseless consideration such as the age of the testator was not mentioned and that Gurusaran had inherited the property from his father just four years prior to the date of the execution of his Will and the testator being 19 years of age, it was most improbable without there being any cogent reason, he would execute his Will.

18. It is also urged that the statements of the attesting witnesses have not been appropriately considered and merely on surmises, the Consolidation Officer found that suspicious circumstances surrounded the execution of the Will which was apparently not reflected from the records and an erroneous order was passed by the Consolidation Officer dated 24.04.2014.

19. The learned counsel for the petitioner further submits that even the Settlement Officer of Consolidation has echoed the same sentiments and has not applied its independent mind rather it went on to rely on the Pariwar Register. While the said Pariwar register was not proved in accordance with law and in such circumstances where the Pariwar Register was not proved, it could not have been made the basis of upholding the claim of Smt. Aash Kumari as the widow of Sri Gurusaran and declining to accept the claim of the petitioner which stood proved.

20. Thus, the order dated 02.12.2022 passed by the Settlement Officer of Consolidation was also mired with errors both factual and legal, hence, the petitioner carried the matter in a revision but the Revisional Court also committed the same error while rejecting the revision on 07.12.2024. Thus, for the aforesaid reasons, the orders impugned deserve to be interfered with in the writ jurisdiction.

21. Learned counsel for the petitioner has relied upon the following decisions of the Apex Court relating to due execution and attestation of the Will:- (i) Gopal Krishan & Others Vs. Daulat Ram & Others; 2025 AIR SC 540; (ii) Lilian Coehlo & Others Vs. Myra Philomena Coalho; 2025 AIR SC 518; (iii) Vrindavanibai Sambhaji Mane Vs. Ramchandra Vithal Ganeshkar (1995 AIR SC 2086 and (iv) Lalitaben Jayantilal Popat Vs. Pragnaben Jamnadas Kataria & Others; 2009 AIR SC 1389

22. The learned counsel for the private respondent no. 4 has refuted the aforesaid submissions and has pointed out that the Will dated 20.07.1987 was mired with suspicious circumstances. The person propounding the Will is obliged in law to not only prove the due attestation and execution of the Will but is also obliged to dispel the suspicious circumstances surrounding and execution and attestation of the Will.

23. It is urged that the Will is said to have been written by Sri Arjun Singh, Advocate at around 08:00 to 09:00 PM at the residence of the testator who himself was a 19 year old boy and who had inherited the property about four years ago (at the time when he was 14 years of age) upon the death of his father.

24. It is further submitted that there was no averment or proof to indicate what prompted the testator to execute the Will at the age of 19 nor any accentuating circumstances were pleaded or proved.

25. It is further urged that even the attesting witnesses who were examined could not clearly prove the due attestation and execution of the Will and that shall also be evident from the perusal of the statements of the said witnesses which have been brought on record by the petitioner as Annexure No. 6 with the writ petition.

26. It is further urged that it was alleged by the petitioner that Sri Gurusaran, though, was married to Smt. Aash Kumari but she did not reside with Gurusaran and she continued to reside with her parents till such time she was invited to stay with Gurusaran as per the ritual (Gauna).

27. It is also stated that since Smt. Aash Kumari had a disease of white spots on her body, hence, Gurusaran had divorced Smt. Aash Kumari as per ritual and custom (Chutta Chutti), hence, on the date of death of Gurusaran i.e. 03.08.1987, Smt. Aash Kumari ceased to be the widow or wife of Gurusaran, however, this plea of divorce could not be proved by the petitioner and merely a plea cannot partake the nature of a fact proved in law, hence, the right of the petitioner claiming to be the successor on the basis of succession is ruled out.

28. In so far as the plea of the Will is concerned as already submitted was not proved in accordance with law, hence, the three Consolidation Courts rightly came to the conclusion that the Will was not duly proved, hence, the three Consolidation Courts have recorded concurrent findings of fact which do not require any interference from this Court in exercise of its writ jurisdiction and the petition deserves to be dismissed.

29. The learned counsel for the respondent no. 6 has also adopted the submissions of the learned counsel for the respondent no. 4.

30. The Court has heard the learned counsel for the parties at length at the admission stage and also perused the material on record.

31. At the outset, it may be noticed that the facts in between the parties are not in dispute.

32. The contentions of the learned counsel for the petitioner can be divided in two parts; (i) the claim to the property of Gurusaran on the basis of succession. This plea can only succeed if it is found that Smt. Aash Kumari was not the widow or the wife of Gurusaran on the date of his death i.e. 03.08.1987.

33. In this regard, if the material available before this Court is perused, it would be found that the petitioner has merely raised a plea that Gurusaran was married to Smt. Asha Kumari but on account of certain ailment, he divorced Aash Kumari by customary mode of divorce (Chutta Chutti).

34. From the perusal of the material on record including the statement of the petitioner herself, it can not be said that the custom by which the divorce is said to have occurred (chutta- chutti) was actually pleaded and proved by the petitioner in law.

35. Now, it is too well settled to be disputed that in case if a plea of customary marriage or divorce is to be considered, it must first be indicated that such a custom or ritual existed and the parties were subjected and bound by such custom/ritual and then it also needs to be proved that as per the said settled custom/ritual, the divorce did take place.

36. In this regard, if the material placed before the Court is noticed, it would be found that there is a mere plea regarding the plea of divorce of custom (chutta-Chutti) but there is nothing worthwhile to indicate that the said custom/ritual did exists and the parties were bound by such custom and in furtherance thereof, the divorce did take place as per the said custom. In absence of such plea or proof, the said plea raised by the learned counsel for the petitioner does not impress this Court.

37. The second part of the submission of the learned counsel for the petitioner claiming right to the property of Gurusaran is based on the unregistered will of Gurusaran. In this regard, it will be relevant to notice that the petitioner had set up a case that Gurusaran was suffering from an ailment which led to execution of the Will which was executed in her presence and was written by Sri Arjun Singh, Advocate and duly attested by two witnesses namely Shiv Prakash and Sarju Prasad.

38. Having considered the aforesaid submissions and from the perusal of the statement of the two attesting witnesses including that of the petitioner, it would reveal that the petitioner could not indicate what was the ailment which inflicted Sri Gurusaran rather on the contrary she stated that Gurusaran was not well but could not explain as to the well being of Gurusaran.

39. The said Will is dated 20.07.1987 whereas Sri Gurusaran died on 03.08.1987 i.e. after about 14 days. There was also no explanation as to what prompted the Advocate Arjun Singh to come to the residence of Gurusaran (a 19 year old boy) to write a Will in the year 1987 in the village backdrop at around 08:00 to 09:00 PM. The presence of the petitioner at the residence and taking active participation in execution of the Will despite she being married also could not be explained and the statement of the two attesting witnesses did not inspire confidence for the three Consolidation Courts who unanimously found that the Will was not duly proved.

40. This Court in exercise of powers under Article 226 of the Constitution of India is not require to re-appraise the evidence or to sit as an Appellate Court over the decisions of the three Consolidation Courts who have meticulously examined the matter and perused the evidence led by the parties.

41. Insofar as the decisions cited by the learned counsel for the petitioner are concerned, the proposition held in those cases apparently cannot be disputed. However, the facts of the said cases are different to the facts of the instant case.

42. It is true that in order to prove a Will one of the attesting witness at least has to be examined. It is also true that the Will is not required to be proved with mathematically accuracy to the satisfaction of a prudent man has to be made.

43. It is also equally settled that a person who propound the Will is bound to dispel the suspicious circumstances.

44. In the aforesaid circumstances and the facts which have been noticed by this Court relating to the suspicious circumstances in the foregoing paragraphs, was to be dispelled by the petitioner which has not been adequately done and for the aforesaid reasons, the decisions cited on Gopal Krishan (supra), Lilian Coelho (supra), Vrindavanibai (supra) and Lalitaben (supra) do not come to the aid to the petitioner.

45. The learned counsel for the petitioner has relied upon a decision of a coordinate Bench of this Court in Madhuri Devi Vs. Board of Revenue at Allahabad and Others; Civil Misc. Writ Petition No. 37352 of 2000 decided on 04.08.2011 to submit that an entry in the family register cannot be found to be proved unless the Authority in whose custody or who maintained the record is examined.

46. From the perusal of decision in Madhuri Devi (Supra), it would be found that the facts of the said case were different, inasmuch as, it related to proving the parentage.

47. It will be relevant to notice that in the said case the issue was to as to whether Sri Chote was the son of Jagdev and it was sought to be proved only on the basis of the extracts of the family register, however, it could be found that in the said case Jagdeo himself had denied the said family register and also disputed that Chote was not his son.

48. This Court in Madhuri Devi (Supra) clearly noticed that where Jagdeo himself had disputed the parentage of Chote, the courts were not justified in holding that the parentage was proved merely on the basis of the extracts of the family register and in the aforesaid context, it held that the family register could not be the sole basis for returning such a finding especially when it was not proved in accordance with law.

49. The facts of the said case apparently do not apply in the instant case as here it would be found that it is not disputed that Gurusaran was married to Smt. Aash Kumari. The fact whether there was a ritualistic divorce was a plea raised by the petitioner and therefore it was her burden to have first pleaded the existence of such a ritual in the community to which the petitioner and the respondents belonged and then that the divorce did take place as per the settled custom and ritual and as noticed above, there is not a shred of evidence in this regard, consequently, the reliance placed on the said judgment of Madhuri Devi (Supra) does not come to the rescue of the petitioner.

50. It is now too well settled that a person who propounds the Will is required to not only prove the due attestation and execution of the will but also to dispel the surrounding circumstances. In this regard, the landmark judgment of the Hon'ble Supreme Court in H. Venkatachala Iyengar Vs. B.N. Thimmajamma, 1958 SCC Online SC 31; and the proposition held therein have been followed by the Apex Court in its subsequent decision in the case of Jaswant Kaur Vs. Amrit Kaur, 1977 (1) SCC 369 and in the case of Kavita Kanwar Vs. Pamela Mehta; (2021) 11 SCC 209 and in the case of Chinu Rani Ghosh Vs. Subhash Ghosh; 2024 SCC Online SC 4070.

51. As already noticed above, the circumstances which have been noticed hereinabove and considering the issue in the aforesaid backdrop and the findings which have been recorded by the three Consolidation Courts are pure findings of fact in the given circumstances it does not permit this Court to enter into the arena of re-appraisal of evidence, hence, this Court is satisfied that the three impugned orders do not suffer from any palpable error which may persuade this Court to entertain the present petition which is accordingly dismissed at the admission stage itself.

52. Costs are made easy. Order Date :- 20.2.2025-Asheesh/- ASHEESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench

1. Heard Shri Yogesh Singh, learned counsel for the petitioner, Shri M.E. Khan, learned counsel for respondent no. 5, Shri Anubhav Prakash Srivastava, learned counsel appearing for respondent no. 6 and Dr. Krishna Singh, learned Standing Counsel for the respondent-State.

2. Vakalatnamas filed by Shri M.E. Khan on behalf of respondent no. 5 and Shri Anubhav Prakash Srivastava, on behalf of respondent no. 6 are taken on record.

3. The petitioners have approached this Court seeking quashing of the order dated 07.12.2024 passed by the Deputy Director of Consolidation, Lucknow dismissing the revision of the petitioner, as a consequence, the order dated 02.12.2022 passed by the Settlement Officer of Consolidation, Lucknow was affirmed which in turn upholds the order dated 24.04.2014 passed by the Consolidation Officer, Lucknow.

4. Sri Gurusaran son of Babu Deen was the undisputed recorded tenure holder who is said to have died on 03.08.1997 during the consolidation operations in the village in question. Upon his death, three conflicting claims were set up, one by Aash Kumari (also referred in the proceedings before the Consolidation courts as "Aash") who was the wife of Gurusaran, the second claim was setup by the petitioner Smt. Munera Devi who was the sister of Gurusaran and the third claim by Smt. Rajkumari, the mother of Sri Gurusaran.

5. The petitioner Smt. Munera Devi claimed that Gurusaran had executed an unregistered Will in her favour dated 20.07.1987 and on the basis of the said Will she inherited the property from her brother. She also stated that though Aash Kumari was the wife of Gurusaran, however, she was divorced and in this view of the matter, the petitioner both being the sister and a legal heir as well as also having a Will in her favour was the rightful person to succeed to the estate and property of Sri Gurusaran.

6. Smt. Aash Kumari on the other hand pushing her claim on the basis of being the widow of Gurusaran and in her presence Smt. Munera Devi being the married sister had no right. She also challenged the Will stating that it was fictitious and in such circumstances, she was the rightful and preferential heir of Sri Gurusaran.

7. The third set of objections were put forth by Smt. Rajkumar, the mother of Gurusaran. During the consolidation proceedings, Smt. Rajkumar also expired and she is said to have executed her registered Will dated 28.02.2002 in favour of the petitioner and as such the entire property came in the hands of the petitioner both from her mother as well as from her brother.

8. The record reveals that the Consolidation Officer upon considering the pleadings framed three issues and after permitting the parties to lead evidence, it did not find favour with the claim of the petitioner and ordered that the property of Gurusaran be recorded in the name of Aash Kumari by means of its judgment dated 08.07.2005.

9. Initially, a recall application was moved by Smt. Munera Devi which was allowed on 30th August, 2001 by the Consolidation Officer. Thereafter the matter was considered afresh on merits and the Consolidation Officer vide its order dated 28.03.2009 again passed an order in favour of Smt. Aash Kumari.

10. Once again Smt. Munera Devi filed an appeal which came to be allowed on 30.08.2010 and after setting aside the order passed by the Consolidation Officer, the matter was remanded once again to the Consolidation Officer to decide the matter afresh after affording full opportunity of hearing to the parties and permitting them to lead any evidence, if required.

11. The Consolidation Officer after complying with the order dated 15.08.2010 once again re-considered the matter and vide order dated 24.04.2014 uphled the claim of Aash Kumari and rejected the objections filed by Smt. Munera Devi.

12. Smt. Munera Devi again filed an appeal which came to be dismissed on 02.12.2022 and then the matter was further escalated before the Deputy Director of Consolidation who also dismissed the revision on 07.12.2024 and in the aforesaid factual backdrop, Smt. Munera Devi has approached this Court by means of the instant petition.

13. The learned counsel for the petitioner has submitted that the Consolidation Courts have clearly misdirected themselves while passing the three impugned orders.

14. It is urged that Smt. Munera Devi had a Will in her favour dated 20th July, 1987. The said Will was duly proved in accordance with Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act.

15. It is further urged that the statement of the attesting witnesses of the will namely Shiv Prakash and Sri Sarju Prasad was recorded before the Consolidation Officer and both the attesting witnesses clearly proved the Will including its due execution and attestation.

16. It is further urged that even the scribe of the Will namely Sri Arjun Singh, Advocate was also examined. The petitioner examined herself as one of the witnesses and from the conjoint reading of the evidences recorded before the Consolidation Officer, the Will of Gurusaran was duly proved, however, the Consolidation Officer merely on surmises and conjectures found that the Will not proved and the manner in which the evidence has been appreciated is patently erroneous.

17. It is further urged that the reason for not accepting the Will executed by Sri Gurusaran was most frivolous and the Will was not found to be proved on baseless consideration such as the age of the testator was not mentioned and that Gurusaran had inherited the property from his father just four years prior to the date of the execution of his Will and the testator being 19 years of age, it was most improbable without there being any cogent reason, he would execute his Will.

18. It is also urged that the statements of the attesting witnesses have not been appropriately considered and merely on surmises, the Consolidation Officer found that suspicious circumstances surrounded the execution of the Will which was apparently not reflected from the records and an erroneous order was passed by the Consolidation Officer dated 24.04.2014.

19. The learned counsel for the petitioner further submits that even the Settlement Officer of Consolidation has echoed the same sentiments and has not applied its independent mind rather it went on to rely on the Pariwar Register. While the said Pariwar register was not proved in accordance with law and in such circumstances where the Pariwar Register was not proved, it could not have been made the basis of upholding the claim of Smt. Aash Kumari as the widow of Sri Gurusaran and declining to accept the claim of the petitioner which stood proved.

20. Thus, the order dated 02.12.2022 passed by the Settlement Officer of Consolidation was also mired with errors both factual and legal, hence, the petitioner carried the matter in a revision but the Revisional Court also committed the same error while rejecting the revision on 07.12.2024. Thus, for the aforesaid reasons, the orders impugned deserve to be interfered with in the writ jurisdiction.

21. Learned counsel for the petitioner has relied upon the following decisions of the Apex Court relating to due execution and attestation of the Will:- (i) Gopal Krishan & Others Vs. Daulat Ram & Others; 2025 AIR SC 540; (ii) Lilian Coehlo & Others Vs. Myra Philomena Coalho; 2025 AIR SC 518; (iii) Vrindavanibai Sambhaji Mane Vs. Ramchandra Vithal Ganeshkar (1995 AIR SC 2086 and (iv) Lalitaben Jayantilal Popat Vs. Pragnaben Jamnadas Kataria & Others; 2009 AIR SC 1389

22. The learned counsel for the private respondent no. 4 has refuted the aforesaid submissions and has pointed out that the Will dated 20.07.1987 was mired with suspicious circumstances. The person propounding the Will is obliged in law to not only prove the due attestation and execution of the Will but is also obliged to dispel the suspicious circumstances surrounding and execution and attestation of the Will.

23. It is urged that the Will is said to have been written by Sri Arjun Singh, Advocate at around 08:00 to 09:00 PM at the residence of the testator who himself was a 19 year old boy and who had inherited the property about four years ago (at the time when he was 14 years of age) upon the death of his father.

24. It is further submitted that there was no averment or proof to indicate what prompted the testator to execute the Will at the age of 19 nor any accentuating circumstances were pleaded or proved.

25. It is further urged that even the attesting witnesses who were examined could not clearly prove the due attestation and execution of the Will and that shall also be evident from the perusal of the statements of the said witnesses which have been brought on record by the petitioner as Annexure No. 6 with the writ petition.

26. It is further urged that it was alleged by the petitioner that Sri Gurusaran, though, was married to Smt. Aash Kumari but she did not reside with Gurusaran and she continued to reside with her parents till such time she was invited to stay with Gurusaran as per the ritual (Gauna).

27. It is also stated that since Smt. Aash Kumari had a disease of white spots on her body, hence, Gurusaran had divorced Smt. Aash Kumari as per ritual and custom (Chutta Chutti), hence, on the date of death of Gurusaran i.e. 03.08.1987, Smt. Aash Kumari ceased to be the widow or wife of Gurusaran, however, this plea of divorce could not be proved by the petitioner and merely a plea cannot partake the nature of a fact proved in law, hence, the right of the petitioner claiming to be the successor on the basis of succession is ruled out.

28. In so far as the plea of the Will is concerned as already submitted was not proved in accordance with law, hence, the three Consolidation Courts rightly came to the conclusion that the Will was not duly proved, hence, the three Consolidation Courts have recorded concurrent findings of fact which do not require any interference from this Court in exercise of its writ jurisdiction and the petition deserves to be dismissed.

29. The learned counsel for the respondent no. 6 has also adopted the submissions of the learned counsel for the respondent no. 4.

30. The Court has heard the learned counsel for the parties at length at the admission stage and also perused the material on record.

31. At the outset, it may be noticed that the facts in between the parties are not in dispute.

32. The contentions of the learned counsel for the petitioner can be divided in two parts; (i) the claim to the property of Gurusaran on the basis of succession. This plea can only succeed if it is found that Smt. Aash Kumari was not the widow or the wife of Gurusaran on the date of his death i.e. 03.08.1987.

33. In this regard, if the material available before this Court is perused, it would be found that the petitioner has merely raised a plea that Gurusaran was married to Smt. Asha Kumari but on account of certain ailment, he divorced Aash Kumari by customary mode of divorce (Chutta Chutti).

34. From the perusal of the material on record including the statement of the petitioner herself, it can not be said that the custom by which the divorce is said to have occurred (chutta- chutti) was actually pleaded and proved by the petitioner in law.

35. Now, it is too well settled to be disputed that in case if a plea of customary marriage or divorce is to be considered, it must first be indicated that such a custom or ritual existed and the parties were subjected and bound by such custom/ritual and then it also needs to be proved that as per the said settled custom/ritual, the divorce did take place.

36. In this regard, if the material placed before the Court is noticed, it would be found that there is a mere plea regarding the plea of divorce of custom (chutta-Chutti) but there is nothing worthwhile to indicate that the said custom/ritual did exists and the parties were bound by such custom and in furtherance thereof, the divorce did take place as per the said custom. In absence of such plea or proof, the said plea raised by the learned counsel for the petitioner does not impress this Court.

37. The second part of the submission of the learned counsel for the petitioner claiming right to the property of Gurusaran is based on the unregistered will of Gurusaran. In this regard, it will be relevant to notice that the petitioner had set up a case that Gurusaran was suffering from an ailment which led to execution of the Will which was executed in her presence and was written by Sri Arjun Singh, Advocate and duly attested by two witnesses namely Shiv Prakash and Sarju Prasad.

38. Having considered the aforesaid submissions and from the perusal of the statement of the two attesting witnesses including that of the petitioner, it would reveal that the petitioner could not indicate what was the ailment which inflicted Sri Gurusaran rather on the contrary she stated that Gurusaran was not well but could not explain as to the well being of Gurusaran.

39. The said Will is dated 20.07.1987 whereas Sri Gurusaran died on 03.08.1987 i.e. after about 14 days. There was also no explanation as to what prompted the Advocate Arjun Singh to come to the residence of Gurusaran (a 19 year old boy) to write a Will in the year 1987 in the village backdrop at around 08:00 to 09:00 PM. The presence of the petitioner at the residence and taking active participation in execution of the Will despite she being married also could not be explained and the statement of the two attesting witnesses did not inspire confidence for the three Consolidation Courts who unanimously found that the Will was not duly proved.

40. This Court in exercise of powers under Article 226 of the Constitution of India is not require to re-appraise the evidence or to sit as an Appellate Court over the decisions of the three Consolidation Courts who have meticulously examined the matter and perused the evidence led by the parties.

41. Insofar as the decisions cited by the learned counsel for the petitioner are concerned, the proposition held in those cases apparently cannot be disputed. However, the facts of the said cases are different to the facts of the instant case.

42. It is true that in order to prove a Will one of the attesting witness at least has to be examined. It is also true that the Will is not required to be proved with mathematically accuracy to the satisfaction of a prudent man has to be made.

43. It is also equally settled that a person who propound the Will is bound to dispel the suspicious circumstances.

44. In the aforesaid circumstances and the facts which have been noticed by this Court relating to the suspicious circumstances in the foregoing paragraphs, was to be dispelled by the petitioner which has not been adequately done and for the aforesaid reasons, the decisions cited on Gopal Krishan (supra), Lilian Coelho (supra), Vrindavanibai (supra) and Lalitaben (supra) do not come to the aid to the petitioner.

45. The learned counsel for the petitioner has relied upon a decision of a coordinate Bench of this Court in Madhuri Devi Vs. Board of Revenue at Allahabad and Others; Civil Misc. Writ Petition No. 37352 of 2000 decided on 04.08.2011 to submit that an entry in the family register cannot be found to be proved unless the Authority in whose custody or who maintained the record is examined.

46. From the perusal of decision in Madhuri Devi (Supra), it would be found that the facts of the said case were different, inasmuch as, it related to proving the parentage.

47. It will be relevant to notice that in the said case the issue was to as to whether Sri Chote was the son of Jagdev and it was sought to be proved only on the basis of the extracts of the family register, however, it could be found that in the said case Jagdeo himself had denied the said family register and also disputed that Chote was not his son.

48. This Court in Madhuri Devi (Supra) clearly noticed that where Jagdeo himself had disputed the parentage of Chote, the courts were not justified in holding that the parentage was proved merely on the basis of the extracts of the family register and in the aforesaid context, it held that the family register could not be the sole basis for returning such a finding especially when it was not proved in accordance with law.

49. The facts of the said case apparently do not apply in the instant case as here it would be found that it is not disputed that Gurusaran was married to Smt. Aash Kumari. The fact whether there was a ritualistic divorce was a plea raised by the petitioner and therefore it was her burden to have first pleaded the existence of such a ritual in the community to which the petitioner and the respondents belonged and then that the divorce did take place as per the settled custom and ritual and as noticed above, there is not a shred of evidence in this regard, consequently, the reliance placed on the said judgment of Madhuri Devi (Supra) does not come to the rescue of the petitioner.

50. It is now too well settled that a person who propounds the Will is required to not only prove the due attestation and execution of the will but also to dispel the surrounding circumstances. In this regard, the landmark judgment of the Hon'ble Supreme Court in H. Venkatachala Iyengar Vs. B.N. Thimmajamma, 1958 SCC Online SC 31; and the proposition held therein have been followed by the Apex Court in its subsequent decision in the case of Jaswant Kaur Vs. Amrit Kaur, 1977 (1) SCC 369 and in the case of Kavita Kanwar Vs. Pamela Mehta; (2021) 11 SCC 209 and in the case of Chinu Rani Ghosh Vs. Subhash Ghosh; 2024 SCC Online SC 4070.

51. As already noticed above, the circumstances which have been noticed hereinabove and considering the issue in the aforesaid backdrop and the findings which have been recorded by the three Consolidation Courts are pure findings of fact in the given circumstances it does not permit this Court to enter into the arena of re-appraisal of evidence, hence, this Court is satisfied that the three impugned orders do not suffer from any palpable error which may persuade this Court to entertain the present petition which is accordingly dismissed at the admission stage itself.

52. Costs are made easy. Order Date :- 20.2.2025-Asheesh/- ASHEESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench