High Court · 2025

1. Heard Sri Ghanshyam Verma, learned counsel for the petitioners, learned Standing counsel for State-respondent No.s 1, 2 and 3 and Sri Prabhat Kumar, Advocate who has put in appearance on behalf of opposite party No.4 and filed vakalatnama. The same is taken on record.

2. By means of the present writ petition the petitioner has challenged order dated 8.5.2025 passed by Deputy Director of Consolidation, Faizabad (Ayodhya) in revision preferred by opposite party No.4 which has been allowed. It has been submitted that the entire dispute has arisen on an application for mutation preferred by the petitioner under Section 9 A(2) of U.P. Consolidation of Land Holding Act was preferred by the petitioner on death of his predecessor in interest Kamta Prasad who was the recorded tenure holder of the land situated at Khata No.11 of Village Beebipur and Khata No.s 22 and 268 of Village Fatehpurkamacin. It has been submitted that Kamta Prasad died issue-less on 3.11.1988 and the petitioner being sister of Kamta Prasad moved an application for recording her name in the revenue records. In the said proceedings before the Consolidation Officer, Bikapur, District Faizabad objections were filed by opposite party No.4 stating that Kamta Prasad had executed an unregistered will in his favour on 25.10.1988 on the basis of which name of Gaya Prasad was recorded in the revenue records. Before the Consolidation Officer opposite party No.4 was able to prove the will dated 25.10.1988 in as much as the witness to the said will Ram Achhaiber had testified in his favour along with the scribe Ganesh Dutt Mishra and the Consolidation Officer accordingly was of the view that mutation in this regard pertaining to un - registerd will and proved the same having been executed by Kamta Prasad and consequently directed the land to be recorded in the name of Gaya Prasad and rejected the application of the petitioner by means of order dated 23.10.2018.

3. The petitioner being aggrieved by the order dated 23.10.2018 filed appeal before Settlement Officer of Consolidation, who after examining the entire material on record and more specifically the evidence adduced by respondent No.4 in favour of unregistered will, was of the view that there was serious discrepancy in the statement of the witness of the will namely Ram Achchaiber Verma in as much as he had testified that deceased Kamta Prasad had put thumb impression on the said will while in fact on examination of the said will it was found to have been signed by Kamta Prasad and accordingly found that there were serious inconsistencies and discrepancies involved to the validity of the will dated 25.10.1988 and consequently was of the view that opposite party No.4 would not succeed to the said land on the basis of the unregistered will deed and accordingly allowed the appeal and directed the land be recorded in the name of the petitioner. It is in aforesaid circumstances that opposite party No.4 had filed revision before Deputy Director of Consolidation under Section 48 of C. H. Act and the revisional court by means of the impugned order has again revisited the entire facts as canvassed by the parties including the evidence adduced before the authorities and was of the view that there were substantial material adduced by opposite party No.4 in favour of unregistered will which has been executed by Kamta Prasad in favour of Gaya Prasad and accordingly held that the will was valid and hence would devolve on the basis of the unregistered will rather than by succession and accordingly allowed the appeal setting aside the order of Settlement Officer of Consolidation dated 5.3.2022 and restored the order of Consolidation Officer dated 23.10.2018.

4. The petitioner in the present writ petition has questioned the validity of the impugned order passed by Deputy Director of Consolidation. The central issue which has engaged the attention of this Court .and which has now been argued by the petitioner pertains to validity of unregistered will dated 25.10.1988.

5. Learned counsel for the petitioner submits that a perusal of the statement of Ram Achhaiber Verma, which has been annexed along with the petition, indicates that during his cross examination he has stated that Gaya Prasad in his statement before the Consolidation Officer has stated that Kamta Prasad had duly signed the will while, in fact, Kamta Prasad has affixed his thumb impression on the will and only on this ground the Settlement Officer of Consolidation had refused to believe that the unregistered will was genuine. It was further argued that Gaya Prasad had testified that Kamta Prasad had used black coloured ink while thumb impression affixed in the will by blue colour and according to the petitioner these are serious infirmities in the statement of Kamta Prasad due to which the will ought to be disbelieved.

6. Learned counsel for the opposite parties, on the other hand, has submitted that in all material particulars considering the statement of Gaya Prasad, it could be borne out in all material particulars that he had supported the execution of the unregistered will by Kamta Prasad. He had clearly stated that the said will was written on the dictation of Ganesh Duttt Mishra, who was the scribe of the said will and nearly after three decades if he is unable to clearly state the colour of the ink from which the thumb impression was made cannot be a ground to disbelieve the will considering the fact that in all material particulars he has supported the execution of unregistered will. He has further submitted that there is no dispute with regard to testimony of Gaya Prasad who was the scribe of the will and even before the Consolidation Officer his statement has remained unquestionable and, therefore, there is no error in the judgment of Deputy Director of Consolidation and it has rightly set aside the order of Settlement Officer and accordingly prayed for dismissal of the writ petition.

7. I have heard learned counsel for the parties and perused the record.

8. The central issue engaging the attention of this Court in particular course is only with regard to validity of the will dated 25.10.1988 executed by Kamta Prasad, who is brother of the petitioner and on whose death the petitioner stated that the disputed land would evolve upon the petitioner through succession.

9. The claim of the petitioner has been opposed by opposite party No.4, namely Gaya Prasad who has clearly claimed right and title over the disputed land on the basis of unregistered will executed by Kamta Prasad on 25.10.1988.

10. Before proceedings to consider the facts it is necessary to mention that there is no dispute with regard to right and title of Kamta Prasad on the disputed land but the dispute in the present case involves only with regard to person who has succeeded the said land on the death of Kamta Prasad. The said will was executed on 25.10.1988 in which there were two witnesses, namely, Gaya Prasad and Ram Dular. It is prior to institution of the said proceedings that Ram Dular has died and accordingly one of the witnesses, namely Ram Achhaiber was alive. The scribe of the said will Ganesh Dutt Mishra had also testified considering this statement of Gaya Prasad it is noticed that he had categorically stated before the Consolidation Officer stating that at the time of execution of the will Kamta Prasad was aged about 40 years and nearly four decades has passed since execution of the said will. He has categorically stated that the said will was written under the dictation of Kamta Prasad by Ganesh Dutt in presence of Ram Achhaiber and Ram Dular. He had stated that apart from these persons another person was also present when the will was executed. He has authoritatively stated that he duly signed the said will and written his name on the said will. He has sated that Gaya Prasad also affixed his thumb impression through blank ink but he could not remember specifically whether any fountain pen was involved at the time of execution of the said will. He had clearly stated that he made his signatures on the said will and Kamta Prasad had signed the will first after which Ganesh Dutt had signed the will and subsequently Gaya Prasad had also signed as a witness and Ganesh Dutt after writing the said will had read out the said will to Kamta Prasad and the will was written on a simple piece of paper. Various questions were put to him pertaining to details of the said will to which he replied that he was not aware of the contents of the said will.

11. Before proceeding to consider the statement of Gaya Prasad, it is necessary to state that duringpendency before the Consolidation Officer the statement of Ganesh Dutt Mishra, the scribe of the said will was also considered.

12. The petitioner does not dispute the said statement to the extent that Ganesh Dutt Mishra has verified execution of the said will and that he had scribed the said will on the dictates of Kamta Prasad. We find that in all materiel particulars pertaining to dictation of the said will to Ganesh who wrote the said will as per the said dictation and after the said dictation the will was read down by Ganesh to Kamta Prasad are undisputed. The statement of Ganesh Dutt Mishra and the witness Ram Achhaiber are also not disputed. The only dispute pertains to the fact that in his testimony Gaya Prasad had stated that the will was signed by Kamta Prasad while, in fact, Kamta Prasad had affixed thumb impression on the said will. This Court after considering the entire statement is of the view that in all materiel particulars stated by the witness stood undisputed merely because of lapse of nearly four decades the witness does not remember as to whether the said will was signed or thumb impression was affixed would not be a ground in itself to disbelieve the entire testimony of the witness. Apart from the above, there is no mention of the fact that there was no suspicious circumstances in which the said will was written. Considering the fact hat it is clearly stated by Kamta Prasad was nearly 40 to 41 years of age on the date on which the said will was written and fully aware of the circumstances and the manner in which the said will was created.

13. 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 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 the landmark decisions in H. Venkatachala Iyengar v. B.N. Thimmajamma (AIR 1959 SC 443), Gurdev Kaur v. Kaki [(2007) 1 SCC 546], and Janki Narayan Bhoir v. Narayan Namdeo Kadam [(2003) 2 SCC 91], have consistently upheld that the examination of a single attesting witness is legally sufficient to prove the will, provided the witness gives a cogent and trustworthy account of the execution and attestation, and there exist no suspicious circumstances surrounding the will. Thus, the propounder of the will is not obligated to examine both attesting witnesses, and the testimony of one attesting witness, if it meets the statutory requirements and withstands judicial scrutiny, is adequate to discharge the burden of proof in law. In addition to examining one attesting witness as required under Section 68 of the Indian Evidence Act, the scribe of the will has also been examined by the court. The scribe, who wrote the will at the time of its execution, has clearly supported and confirmed the circumstances under which the will was prepared and signed by the testator. While the scribe is not considered an attesting witness unless he signs the will with the intention to attest it, his statement still provides important supporting evidence. His testimony helps to confirm the presence of the testator and the attesting witnesses at the time the will was made, and strengthens the case of the propounder. Together, the evidence of the attesting witness and the scribe provides a complete and reliable picture, proving that the will was duly executed and is valid in the eyes of law.

14. We do not find that there was any circumstance which has been mentioned in the testimony of Gaya Prasad which may lead us to believe that there was any discrepancy in material particulars in the statement which may lead us to hold that the will was suspicious and the testimony was false and cannot be believed. The discrepancy as pointed out by the petitioner is not such material discrepancy which may lead this Court to disbelieve the said will. Accordingly, this Court is of the considered view that considering the totality of the circumstances and including the statement of the scribe of the will, namely Ganesh Dutt Mishra and the testimony of Gaya Prasad, there is no dispute that the will was genuine and there was no defect in the same.

15. We further find that even if for the sake of arguments the version of the petitioner is believed we still find no reason to disbelieve the testimony of Ganesh Dutt Mishra and even the petitioner does not dispute his testimony. Even if one of the witness in all material particular has disputed with regard to the will and the execution of the same, we find no reason to return a finding questioning the validity of the said will. It is for the aforesaid reason we do not find any infirmity in the impugned order.

16. In light of the above, the petition is devoid of merits and is accordingly dismissed. (Alok Mathur, J.) Order Date :- 1.7.2025 RKM. RAKESH KUMAR MAURYA High Court of Judicature at Allahabad, Lucknow Bench

1. Heard Sri Ghanshyam Verma, learned counsel for the petitioners, learned Standing counsel for State-respondent No.s 1, 2 and 3 and Sri Prabhat Kumar, Advocate who has put in appearance on behalf of opposite party No.4 and filed vakalatnama. The same is taken on record.

2. By means of the present writ petition the petitioner has challenged order dated 8.5.2025 passed by Deputy Director of Consolidation, Faizabad (Ayodhya) in revision preferred by opposite party No.4 which has been allowed. It has been submitted that the entire dispute has arisen on an application for mutation preferred by the petitioner under Section 9 A(2) of U.P. Consolidation of Land Holding Act was preferred by the petitioner on death of his predecessor in interest Kamta Prasad who was the recorded tenure holder of the land situated at Khata No.11 of Village Beebipur and Khata No.s 22 and 268 of Village Fatehpurkamacin. It has been submitted that Kamta Prasad died issue-less on 3.11.1988 and the petitioner being sister of Kamta Prasad moved an application for recording her name in the revenue records. In the said proceedings before the Consolidation Officer, Bikapur, District Faizabad objections were filed by opposite party No.4 stating that Kamta Prasad had executed an unregistered will in his favour on 25.10.1988 on the basis of which name of Gaya Prasad was recorded in the revenue records. Before the Consolidation Officer opposite party No.4 was able to prove the will dated 25.10.1988 in as much as the witness to the said will Ram Achhaiber had testified in his favour along with the scribe Ganesh Dutt Mishra and the Consolidation Officer accordingly was of the view that mutation in this regard pertaining to un - registerd will and proved the same having been executed by Kamta Prasad and consequently directed the land to be recorded in the name of Gaya Prasad and rejected the application of the petitioner by means of order dated 23.10.2018.

3. The petitioner being aggrieved by the order dated 23.10.2018 filed appeal before Settlement Officer of Consolidation, who after examining the entire material on record and more specifically the evidence adduced by respondent No.4 in favour of unregistered will, was of the view that there was serious discrepancy in the statement of the witness of the will namely Ram Achchaiber Verma in as much as he had testified that deceased Kamta Prasad had put thumb impression on the said will while in fact on examination of the said will it was found to have been signed by Kamta Prasad and accordingly found that there were serious inconsistencies and discrepancies involved to the validity of the will dated 25.10.1988 and consequently was of the view that opposite party No.4 would not succeed to the said land on the basis of the unregistered will deed and accordingly allowed the appeal and directed the land be recorded in the name of the petitioner. It is in aforesaid circumstances that opposite party No.4 had filed revision before Deputy Director of Consolidation under Section 48 of C. H. Act and the revisional court by means of the impugned order has again revisited the entire facts as canvassed by the parties including the evidence adduced before the authorities and was of the view that there were substantial material adduced by opposite party No.4 in favour of unregistered will which has been executed by Kamta Prasad in favour of Gaya Prasad and accordingly held that the will was valid and hence would devolve on the basis of the unregistered will rather than by succession and accordingly allowed the appeal setting aside the order of Settlement Officer of Consolidation dated 5.3.2022 and restored the order of Consolidation Officer dated 23.10.2018.

4. The petitioner in the present writ petition has questioned the validity of the impugned order passed by Deputy Director of Consolidation. The central issue which has engaged the attention of this Court .and which has now been argued by the petitioner pertains to validity of unregistered will dated 25.10.1988.

5. Learned counsel for the petitioner submits that a perusal of the statement of Ram Achhaiber Verma, which has been annexed along with the petition, indicates that during his cross examination he has stated that Gaya Prasad in his statement before the Consolidation Officer has stated that Kamta Prasad had duly signed the will while, in fact, Kamta Prasad has affixed his thumb impression on the will and only on this ground the Settlement Officer of Consolidation had refused to believe that the unregistered will was genuine. It was further argued that Gaya Prasad had testified that Kamta Prasad had used black coloured ink while thumb impression affixed in the will by blue colour and according to the petitioner these are serious infirmities in the statement of Kamta Prasad due to which the will ought to be disbelieved.

6. Learned counsel for the opposite parties, on the other hand, has submitted that in all material particulars considering the statement of Gaya Prasad, it could be borne out in all material particulars that he had supported the execution of the unregistered will by Kamta Prasad. He had clearly stated that the said will was written on the dictation of Ganesh Duttt Mishra, who was the scribe of the said will and nearly after three decades if he is unable to clearly state the colour of the ink from which the thumb impression was made cannot be a ground to disbelieve the will considering the fact that in all material particulars he has supported the execution of unregistered will. He has further submitted that there is no dispute with regard to testimony of Gaya Prasad who was the scribe of the will and even before the Consolidation Officer his statement has remained unquestionable and, therefore, there is no error in the judgment of Deputy Director of Consolidation and it has rightly set aside the order of Settlement Officer and accordingly prayed for dismissal of the writ petition.

7. I have heard learned counsel for the parties and perused the record.

8. The central issue engaging the attention of this Court in particular course is only with regard to validity of the will dated 25.10.1988 executed by Kamta Prasad, who is brother of the petitioner and on whose death the petitioner stated that the disputed land would evolve upon the petitioner through succession.

9. The claim of the petitioner has been opposed by opposite party No.4, namely Gaya Prasad who has clearly claimed right and title over the disputed land on the basis of unregistered will executed by Kamta Prasad on 25.10.1988.

10. Before proceedings to consider the facts it is necessary to mention that there is no dispute with regard to right and title of Kamta Prasad on the disputed land but the dispute in the present case involves only with regard to person who has succeeded the said land on the death of Kamta Prasad. The said will was executed on 25.10.1988 in which there were two witnesses, namely, Gaya Prasad and Ram Dular. It is prior to institution of the said proceedings that Ram Dular has died and accordingly one of the witnesses, namely Ram Achhaiber was alive. The scribe of the said will Ganesh Dutt Mishra had also testified considering this statement of Gaya Prasad it is noticed that he had categorically stated before the Consolidation Officer stating that at the time of execution of the will Kamta Prasad was aged about 40 years and nearly four decades has passed since execution of the said will. He has categorically stated that the said will was written under the dictation of Kamta Prasad by Ganesh Dutt in presence of Ram Achhaiber and Ram Dular. He had stated that apart from these persons another person was also present when the will was executed. He has authoritatively stated that he duly signed the said will and written his name on the said will. He has sated that Gaya Prasad also affixed his thumb impression through blank ink but he could not remember specifically whether any fountain pen was involved at the time of execution of the said will. He had clearly stated that he made his signatures on the said will and Kamta Prasad had signed the will first after which Ganesh Dutt had signed the will and subsequently Gaya Prasad had also signed as a witness and Ganesh Dutt after writing the said will had read out the said will to Kamta Prasad and the will was written on a simple piece of paper. Various questions were put to him pertaining to details of the said will to which he replied that he was not aware of the contents of the said will.

11. Before proceeding to consider the statement of Gaya Prasad, it is necessary to state that duringpendency before the Consolidation Officer the statement of Ganesh Dutt Mishra, the scribe of the said will was also considered.

12. The petitioner does not dispute the said statement to the extent that Ganesh Dutt Mishra has verified execution of the said will and that he had scribed the said will on the dictates of Kamta Prasad. We find that in all materiel particulars pertaining to dictation of the said will to Ganesh who wrote the said will as per the said dictation and after the said dictation the will was read down by Ganesh to Kamta Prasad are undisputed. The statement of Ganesh Dutt Mishra and the witness Ram Achhaiber are also not disputed. The only dispute pertains to the fact that in his testimony Gaya Prasad had stated that the will was signed by Kamta Prasad while, in fact, Kamta Prasad had affixed thumb impression on the said will. This Court after considering the entire statement is of the view that in all materiel particulars stated by the witness stood undisputed merely because of lapse of nearly four decades the witness does not remember as to whether the said will was signed or thumb impression was affixed would not be a ground in itself to disbelieve the entire testimony of the witness. Apart from the above, there is no mention of the fact that there was no suspicious circumstances in which the said will was written. Considering the fact hat it is clearly stated by Kamta Prasad was nearly 40 to 41 years of age on the date on which the said will was written and fully aware of the circumstances and the manner in which the said will was created.

13. 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 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 the landmark decisions in H. Venkatachala Iyengar v. B.N. Thimmajamma (AIR 1959 SC 443), Gurdev Kaur v. Kaki [(2007) 1 SCC 546], and Janki Narayan Bhoir v. Narayan Namdeo Kadam [(2003) 2 SCC 91], have consistently upheld that the examination of a single attesting witness is legally sufficient to prove the will, provided the witness gives a cogent and trustworthy account of the execution and attestation, and there exist no suspicious circumstances surrounding the will. Thus, the propounder of the will is not obligated to examine both attesting witnesses, and the testimony of one attesting witness, if it meets the statutory requirements and withstands judicial scrutiny, is adequate to discharge the burden of proof in law. In addition to examining one attesting witness as required under Section 68 of the Indian Evidence Act, the scribe of the will has also been examined by the court. The scribe, who wrote the will at the time of its execution, has clearly supported and confirmed the circumstances under which the will was prepared and signed by the testator. While the scribe is not considered an attesting witness unless he signs the will with the intention to attest it, his statement still provides important supporting evidence. His testimony helps to confirm the presence of the testator and the attesting witnesses at the time the will was made, and strengthens the case of the propounder. Together, the evidence of the attesting witness and the scribe provides a complete and reliable picture, proving that the will was duly executed and is valid in the eyes of law.

14. We do not find that there was any circumstance which has been mentioned in the testimony of Gaya Prasad which may lead us to believe that there was any discrepancy in material particulars in the statement which may lead us to hold that the will was suspicious and the testimony was false and cannot be believed. The discrepancy as pointed out by the petitioner is not such material discrepancy which may lead this Court to disbelieve the said will. Accordingly, this Court is of the considered view that considering the totality of the circumstances and including the statement of the scribe of the will, namely Ganesh Dutt Mishra and the testimony of Gaya Prasad, there is no dispute that the will was genuine and there was no defect in the same.

15. We further find that even if for the sake of arguments the version of the petitioner is believed we still find no reason to disbelieve the testimony of Ganesh Dutt Mishra and even the petitioner does not dispute his testimony. Even if one of the witness in all material particular has disputed with regard to the will and the execution of the same, we find no reason to return a finding questioning the validity of the said will. It is for the aforesaid reason we do not find any infirmity in the impugned order.

16. In light of the above, the petition is devoid of merits and is accordingly dismissed. (Alok Mathur, J.) Order Date :- 1.7.2025 RKM. RAKESH KUMAR MAURYA High Court of Judicature at Allahabad, Lucknow Bench