LUCKNOW vs Deputy Director Of Consolidation/ Addl. Collector,

2. Heard Shri Vimal Kishore Verma, learned counsel for the petitioners as well as Shri Badrish Kumar Tripahti, learned Additional Chief Standing Counsel for the State respondents no.1 and 2 and Shri Avadhesh Kumar, learned counsel for the respondents no. 3, 4 and 5.

3. The present writ petition sequel to a long drawn litigation with regard to succession of the property which was recorded in the name of Kumar Chandra Agnihotri son of Bahori Lal, who died in 1984.

4. It is stated that Kumar Chandra Agnihotri was the recorded tenure holder of Khata Nos. 14, 58, 59 and 109 situated at village Belhari, Khata No. 52 situated at Village Bela Bojhi and Khata No. 39 situated at village Baheda, Pargana Hyderabad, Tahsil Gola, District Kheri. The brother of Kumar Chandra Agnihotri had two sons, namely, Prem Sagar and Radhey Shyam and after his death in 1984, their names were recorded in P.A. 11 on

18.9.1984 on the basis of the succession being the son of his real brother's deceased. Subsequently an application for mutation was moved by Ved Prakash, who was father of opposite parties no. 3 to 5 stating that a Will has been executed in his favour by Kumar Chandra Agnihotri on 02.11.1983.

5. It has further been submitted that it is during the pendency of the aforesaid mutation proceedings that the consolidation operation commenced in the said village and hence the aforesaid mutation proceedings abated. It is at this stage that Ved Prakash had filed an objection in proceeding under Section 9(A) (2) of Act of 1953 asserting his rights in the said property on the basis of the Will executed in his favour on 2.11.1983. During the pendency of the aforesaid objection, Radhey Shyam died on 11.05.1995 and was substituted by his legal heirs who are opposite parties no. 6 to 9 and 3 WRIB No. 401 of 2025 Prem Sagar also died in 1995 as his legal heirs were also substituted. Objections were filed during the consolidation proceedings by Ved Praksh, which was dismissed and subsequently a restoration application was preferred, which was allowed and all the objections and cases were consolidated.

6. Respondents no. 6 to 9 had executed a sale deed on 14.7.2015 in favour of the petitioners with regard to the Gata No. 162/1.218 hectares situated at Village Bela Bhoji, Pargana Hydrabad, Tahsil Gola, District Kheri. Thus, the petitioners subsequent to the aforesaid sale deed moved an application for mutation before the Tehsildar Gola and order dated 24.2.2016 was passed in their favour and their names were recorded in the revenue record in place of respondents no. 6 to 9. Before the Consolidation Officer at the stage of deciding the objections the statement of Ved Prakash was recorded along with attesting witnesses of the Will, namely, Karuna Shankar son of Ram Avtar. Kailash son of Ujagar also appeared in the said proceedings. The Consolidation Officer by means of order dated 10.1.2017 passed an order in favour of Ved Prakash relying upon the Will dated 2.11.1983 and directed his name be recorded after setting aside basic year entry made in favour of Prem Sagar and Radhey Shyam son of Bhgwan Deen and predecessor-in- interest of opposite parties no. 6 to 9. On the basis of the order dated 10.1.2017 application under Rule 109 (A) (2) of U.P. Consolidation of Holding Rules, 1954 was made where again objections were filed by the petitioners, which were rejected by means of order dated

1.2.2017 and orders were passed for compliance of the order dated

10.1.2017.

7. Against the order dated 1.2.2017 passed in proceedings under Rule 109 (A) appeal was preferred by the petitioners, which was dismissed as not pressed on 18.2.2017. It has further been stated that another appeal was filed by respondents no. 6 to 9 and their mother Prabha Devi along with other persons against the order dated 10.1.2017 passed by the Consolidation Officer Lakhimpur Kheri and along with the aforesaid appeal they also moved an application for restoration for setting aside the exparte order dated

10.1.2017, which was filed on 7.2.2017, which was dismissed as not pressed and the application for restoration came to be rejected by means of order dated 7.11.2019. While rejecting the application for restoration the Consolidation Officer has observed that the case was listed on several dates i.e. on 7.10.2017, 4.10.2016, 11.11.2016 and 25.11.2016, on which dates the 4 WRIB No. 401 of 2025 applicants did not participate in the proceedings and even on the next date fixed i.e. 29.11.2016 they did not appear, thereafter the case was fixed for

2.12.2016 and subsequently it was adjourned to 9.12.2016 and then to

23.12.2016 and then to 6.1.2017.

8. Apart from the above, they were repeatedly granted time to file the evidence but despite the repeated opportunities be given to them but neither they did appear nor participate in the proceedings nor they did file any evidence and therefore, it is clear that intention of the applicants was only to procrastinate and delay the proceedings, rather then matter has to restore and secure the ends of justice.

9. He has further taken note of the fact that present proceedings have been continuing since 1989 and 30 long years had passed where the proceedings are pending and therefore, it is in the aforesaid circumstances, I found that there was no ground made out for allowing the application for restoration especially looking into the conduct of the applicants with regard to Rajeshwari Devi and Kalpana Devi I found that they were not parties in the proceedings and they had purchased the disputed property only during pendency of the said proceedings and it is in the aforesaid reasons, he dismissed the application for restoration by order dated 7.11.2019.

10. Against the order dated 7.11.2019 a revision was preferred before the Deputy Director of Consolidation, which has been dismissed by means of the impugned order dated 30.1.2015. The Deputy Director of Consolidation has again looked into the entire factual aspect of the matter by a detailed judgement decided the controversy. He has found that Ved Prakash has been able to prove the Will dated 2.11.1983. He was of the view that in case the respondents are able to prove the Will then the property would devolve on the basis of the Will and in case the Will is not proved then the property of Kumar Chandra Agnihotri would devolve on the basis of succession as provided in Section 171 and 169 of the U.P. Z.A. & L.R. Act, while considering the validity of the Will he has noticed that attesting witness Karuna Shankar Shukla son of Ram Avtar had given statement before the trial court and verified the execution of the said Will. During his testimony he has clearly and unequivocally stated that Kumar Chandra Agnihotri has executed the Will in his presence where other attesting witness Chet Ram was also present. he has further stated that the testator i.e. Kumar Chandra Agnihotri has signed the Will in his presence and he has also identified the 5 WRIB No. 401 of 2025 signature of testator as well as own signature before the trial court.

11. Accordingly, he was further subjected to cross examination and even during the cross examination he maintained his stand which was disclosed during his examination-in -chief.

12. Accordingly, in the aforesaid circumstances, the Deputy Director of Consolidation concluded that the Will was proved in all material, particulars and there was no other material available or adduced by the petitioners from which validity of the Will could be doubted. Counsel for the petitioners while arguing with regard to the validity of the Will had stated that the wife of Kumar Chandra Agnihotri was alive at the time when the Will was executed and accordingly the said Will become suspicious. This aspect of the case was never raised before any of the Authorities below nor was aforesaid question put to the attesting witness, namely, Karuna Shankar Shukla.

13. Apart from the above, I find that merely because his wife was alive cannot be reason in itself to doubt the validity of the Will unless the same is accompanying by other material particular and facts, from which he can be demonstrated that the Will was executed under some undue influence or testator was incapacitated at the time of writing the Will.

14. I do not find any allegation of undue influence or any material from which it can be deduced the Will was either false or fictitious or was executed by any other person other than Kumar Chandra Agnihotri or suffered from any other infirmity.

15. Apart from the above, I find that the Will was registered during the life time of testator and certainly the presumption lies in validity of the Will and no material evidence could be produced by the petitioner to revert the aforesaid presumption and therefore, I find that the Deputy Director of Consolidation has correctly relied upon the validity of the Will and upheld the order of the Appellate Authority.

16. In order to establish the legal validity of a will, it is essential that the execution and attestation of the document comply with the mandatory requirements laid down under Section 63(c) of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. While Section 63(c) mandates that a will must be attested by at least two or more witnesses, the evidentiary requirement under Section 68 of the Evidence Act stipulates that 6 WRIB No. 401 of 2025 the document shall not be used as evidence unless at least one attesting witness is examined to prove its execution, if such witness is alive and capable of giving evidence. Judicial pronouncements, including landmark decisions in H. Venkatachala Iyengar v. B.N. Thimmajamma

2. Heard Shri Vimal Kishore Verma, learned counsel for the petitioners as well as Shri Badrish Kumar Tripahti, learned Additional Chief Standing Counsel for the State respondents no.1 and 2 and Shri Avadhesh Kumar, learned counsel for the respondents no. 3, 4 and 5.

3. The present writ petition sequel to a long drawn litigation with regard to succession of the property which was recorded in the name of Kumar Chandra Agnihotri son of Bahori Lal, who died in 1984.

4. It is stated that Kumar Chandra Agnihotri was the recorded tenure holder of Khata Nos. 14, 58, 59 and 109 situated at village Belhari, Khata No. 52 situated at Village Bela Bojhi and Khata No. 39 situated at village Baheda, Pargana Hyderabad, Tahsil Gola, District Kheri. The brother of Kumar Chandra Agnihotri had two sons, namely, Prem Sagar and Radhey Shyam and after his death in 1984, their names were recorded in P.A. 11 on

18.9.1984 on the basis of the succession being the son of his real brother's deceased. Subsequently an application for mutation was moved by Ved Prakash, who was father of opposite parties no. 3 to 5 stating that a Will has been executed in his favour by Kumar Chandra Agnihotri on 02.11.1983.

5. It has further been submitted that it is during the pendency of the aforesaid mutation proceedings that the consolidation operation commenced in the said village and hence the aforesaid mutation proceedings abated. It is at this stage that Ved Prakash had filed an objection in proceeding under Section 9(A) (2) of Act of 1953 asserting his rights in the said property on the basis of the Will executed in his favour on 2.11.1983. During the pendency of the aforesaid objection, Radhey Shyam died on 11.05.1995 and was substituted by his legal heirs who are opposite parties no. 6 to 9 and 3 WRIB No. 401 of 2025 Prem Sagar also died in 1995 as his legal heirs were also substituted. Objections were filed during the consolidation proceedings by Ved Praksh, which was dismissed and subsequently a restoration application was preferred, which was allowed and all the objections and cases were consolidated.

6. Respondents no. 6 to 9 had executed a sale deed on 14.7.2015 in favour of the petitioners with regard to the Gata No. 162/1.218 hectares situated at Village Bela Bhoji, Pargana Hydrabad, Tahsil Gola, District Kheri. Thus, the petitioners subsequent to the aforesaid sale deed moved an application for mutation before the Tehsildar Gola and order dated 24.2.2016 was passed in their favour and their names were recorded in the revenue record in place of respondents no. 6 to 9. Before the Consolidation Officer at the stage of deciding the objections the statement of Ved Prakash was recorded along with attesting witnesses of the Will, namely, Karuna Shankar son of Ram Avtar. Kailash son of Ujagar also appeared in the said proceedings. The Consolidation Officer by means of order dated 10.1.2017 passed an order in favour of Ved Prakash relying upon the Will dated 2.11.1983 and directed his name be recorded after setting aside basic year entry made in favour of Prem Sagar and Radhey Shyam son of Bhgwan Deen and predecessor-in- interest of opposite parties no. 6 to 9. On the basis of the order dated 10.1.2017 application under Rule 109 (A) (2) of U.P. Consolidation of Holding Rules, 1954 was made where again objections were filed by the petitioners, which were rejected by means of order dated

1.2.2017 and orders were passed for compliance of the order dated

10.1.2017.

7. Against the order dated 1.2.2017 passed in proceedings under Rule 109 (A) appeal was preferred by the petitioners, which was dismissed as not pressed on 18.2.2017. It has further been stated that another appeal was filed by respondents no. 6 to 9 and their mother Prabha Devi along with other persons against the order dated 10.1.2017 passed by the Consolidation Officer Lakhimpur Kheri and along with the aforesaid appeal they also moved an application for restoration for setting aside the exparte order dated

10.1.2017, which was filed on 7.2.2017, which was dismissed as not pressed and the application for restoration came to be rejected by means of order dated 7.11.2019. While rejecting the application for restoration the Consolidation Officer has observed that the case was listed on several dates i.e. on 7.10.2017, 4.10.2016, 11.11.2016 and 25.11.2016, on which dates the 4 WRIB No. 401 of 2025 applicants did not participate in the proceedings and even on the next date fixed i.e. 29.11.2016 they did not appear, thereafter the case was fixed for

2.12.2016 and subsequently it was adjourned to 9.12.2016 and then to

23.12.2016 and then to 6.1.2017.

8. Apart from the above, they were repeatedly granted time to file the evidence but despite the repeated opportunities be given to them but neither they did appear nor participate in the proceedings nor they did file any evidence and therefore, it is clear that intention of the applicants was only to procrastinate and delay the proceedings, rather then matter has to restore and secure the ends of justice.

9. He has further taken note of the fact that present proceedings have been continuing since 1989 and 30 long years had passed where the proceedings are pending and therefore, it is in the aforesaid circumstances, I found that there was no ground made out for allowing the application for restoration especially looking into the conduct of the applicants with regard to Rajeshwari Devi and Kalpana Devi I found that they were not parties in the proceedings and they had purchased the disputed property only during pendency of the said proceedings and it is in the aforesaid reasons, he dismissed the application for restoration by order dated 7.11.2019.

10. Against the order dated 7.11.2019 a revision was preferred before the Deputy Director of Consolidation, which has been dismissed by means of the impugned order dated 30.1.2015. The Deputy Director of Consolidation has again looked into the entire factual aspect of the matter by a detailed judgement decided the controversy. He has found that Ved Prakash has been able to prove the Will dated 2.11.1983. He was of the view that in case the respondents are able to prove the Will then the property would devolve on the basis of the Will and in case the Will is not proved then the property of Kumar Chandra Agnihotri would devolve on the basis of succession as provided in Section 171 and 169 of the U.P. Z.A. & L.R. Act, while considering the validity of the Will he has noticed that attesting witness Karuna Shankar Shukla son of Ram Avtar had given statement before the trial court and verified the execution of the said Will. During his testimony he has clearly and unequivocally stated that Kumar Chandra Agnihotri has executed the Will in his presence where other attesting witness Chet Ram was also present. he has further stated that the testator i.e. Kumar Chandra Agnihotri has signed the Will in his presence and he has also identified the 5 WRIB No. 401 of 2025 signature of testator as well as own signature before the trial court.

11. Accordingly, he was further subjected to cross examination and even during the cross examination he maintained his stand which was disclosed during his examination-in -chief.

12. Accordingly, in the aforesaid circumstances, the Deputy Director of Consolidation concluded that the Will was proved in all material, particulars and there was no other material available or adduced by the petitioners from which validity of the Will could be doubted. Counsel for the petitioners while arguing with regard to the validity of the Will had stated that the wife of Kumar Chandra Agnihotri was alive at the time when the Will was executed and accordingly the said Will become suspicious. This aspect of the case was never raised before any of the Authorities below nor was aforesaid question put to the attesting witness, namely, Karuna Shankar Shukla.

13. Apart from the above, I find that merely because his wife was alive cannot be reason in itself to doubt the validity of the Will unless the same is accompanying by other material particular and facts, from which he can be demonstrated that the Will was executed under some undue influence or testator was incapacitated at the time of writing the Will.

14. I do not find any allegation of undue influence or any material from which it can be deduced the Will was either false or fictitious or was executed by any other person other than Kumar Chandra Agnihotri or suffered from any other infirmity.

15. Apart from the above, I find that the Will was registered during the life time of testator and certainly the presumption lies in validity of the Will and no material evidence could be produced by the petitioner to revert the aforesaid presumption and therefore, I find that the Deputy Director of Consolidation has correctly relied upon the validity of the Will and upheld the order of the Appellate Authority.

16. In order to establish the legal validity of a will, it is essential that the execution and attestation of the document comply with the mandatory requirements laid down under Section 63(c) of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. While Section 63(c) mandates that a will must be attested by at least two or more witnesses, the evidentiary requirement under Section 68 of the Evidence Act stipulates that 6 WRIB No. 401 of 2025 the document shall not be used as evidence unless at least one attesting witness is examined to prove its execution, if such witness is alive and capable of giving evidence. Judicial pronouncements, including landmark decisions in H. Venkatachala Iyengar v. B.N. Thimmajamma