# Awadhesh Singh v. State of U.P. & Ors

- **Citation:** (2023) 12 ILRA 596
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-09
- **Case number:** Writ-B No. 3357 of 2023
- **Bench:** Syed Qamar Hasan Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/awadhesh-singh-v-state-of-u-p-ors-49485
- **Pages:** 14

## Headnote

Civil Law--The
Constitution of
India,
1950-Article 226 - The Uttar Pradesh
Revenue Code- 2006-Section 208(2) - The
12 All. Awadhesh Singh Vs. State of U.P. & Ors.
597
Code of Civil Procedure, 1908-Section
100--- That while entertaining the Second
Appeal, under Section 208 of the U.P. Revenue
Code, 2006, was it mandatory for the learned
Board of Revenue to frame 'substantial
question of law'?---Held--- The formulation of
substantial question of law is sine qua non to
Section 208---The very jurisdiction of the Board
of Revenue in entertaining a second appeal is
founded on the formulation of a substantial
question of law. The appellate jurisdiction of the
Board of Revenue under section 208 is not akin
to the appellate jurisdiction under Section 207;
it is restricted to such substantial question(s) of
law that may arise from the final order and
decree appealed against. Second Appeal is
entertain-able by the Board of Revenue under
section 208 only upon its satisfaction that a
substantial question of law is involved in the
matter---It is open to the Board of Revenue to
re-frame substantial question of law or frame
substantial question of law afresh or hold that
no substantial question of law is involved at the
time of hearing of the second appeal but
reversal of the final order and decree passed in
appeal by the court below in exercise of its
jurisdiction under section 208 is impermissible
without formulating substantial question of law
and a decision on such question---Board of
Revenue failed to follow the mandate provided
under Section 208 while allowing the Second
Appeal and thus committed a manifest error of
law---Matter remanded to decide afresh.

Petition allowed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,673 of 46,881. This is a partial read: ask again with offset=39673 for what follows._

596 INDIAN LAW REPORTS ALLAHABAD SERIES
ground that petitioner has been posted in a
particular district for the past 32 years.

14. It is admitted by learned counsel
for the parties that transfer is an incidence
of service as has already been held in a
number of judgments which does not
require reiteration.An absolute leeway is to
be granted to the State authoritiesfor
transfer and postings of its employees.The
aspect of judicial review in such transfer
and postings is on a very limited scope,
which does not appear to be made out in
the present case.

15. Although, the impugned order
appears to be based on report dated
29.08.2023 but the same does indicate the
fact of conduct of petitioner as well as fact
that he has been posted in a particular place
for the past 32 years. Once a composite
order has been passed on various grounds,
no segregationof grounds indicated in the
order are required to be undertakenand the
order has to be seen in its composite sense
particularly when, as in the present case
where the order also indicates prolonged
continuance of petitioner in a particular
district.

16. Courts are not required to embark
upon a fishing expedition to find out ways
and means to scuttle routine transfer orders,
which prima facie are not stigmatic.There
may be instances where considering the
nature and conduct of an employee, a full
fledged enquiry is not required but at the
same time, his further continuance in view
of long posting at a particular place may
also not be desirable.

17. In considered opinion of this
Court, in such a situation, if transfer order
is issued as a routine transfer without any
reflection on conduct/complaints against
the employee, it would not come within
purview of judgment rendered in Somesh
Tiwari(supra).

18. In view discussions made herein
above, in the considered opinion of this
Court, the transfer order against petitioner
does not appear to be stigmatic in nature at
all.It is only the subsequent order dated
11.09.2023 which can be termed to be
stigmatic but such reasons were required to
be recorded by authorities concerned in
view of directions issued while disposing
of petitioner's earlier petition.In fact not
having recorded anysuch reasons would
have been deemed to be contemptuous on
part of the authority concerned.

19. In view of aforesaid, the petition
being devoid of merits is dismissed. The
parties to bear their own costs.
----------
(2023) 12 ILRA 596
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.10.2023

BEFORE

THE HON'BLE SYED QAMAR HASAN RIZVI, J.

Writ-B No. 3357 of 2023

Awadhesh Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Punit Updhyay, Sri Arun Kumar Gupta
(Sr. Adv.)

Counsel for the Respondents:
C.S.C., Sri Pankaj Kumar Gupta, Sri
Satendra Bahadur Yati

Civil Law--The
Constitution of
India,
1950-Article 226 - The Uttar Pradesh
Revenue Code- 2006-Section 208(2) - The
12 All. Awadhesh Singh Vs. State of U.P. & Ors.
597
Code of Civil Procedure, 1908-Section
100--- That while entertaining the Second
Appeal, under Section 208 of the U.P. Revenue
Code, 2006, was it mandatory for the learned
Board of Revenue to frame 'substantial
question of law'?---Held--- The formulation of
substantial question of law is sine qua non to
Section 208---The very jurisdiction of the Board
of Revenue in entertaining a second appeal is
founded on the formulation of a substantial
question of law. The appellate jurisdiction of the
Board of Revenue under section 208 is not akin
to the appellate jurisdiction under Section 207;
it is restricted to such substantial question(s) of
law that may arise from the final order and
decree appealed against. Second Appeal is
entertain-able by the Board of Revenue under
section 208 only upon its satisfaction that a
substantial question of law is involved in the
matter---It is open to the Board of Revenue to
re-frame substantial question of law or frame
substantial question of law afresh or hold that
no substantial question of law is involved at the
time of hearing of the second appeal but
reversal of the final order and decree passed in
appeal by the court below in exercise of its
jurisdiction under section 208 is impermissible
without formulating substantial question of law
and a decision on such question---Board of
Revenue failed to follow the mandate provided
under Section 208 while allowing the Second
Appeal and thus committed a manifest error of
law---Matter remanded to decide afresh.

Petition allowed. (E-15)

List of Cases cited:

1. Bhagya Shree Anant Gaonkara Vs Narendra
alias Nagesh Bharma Holkar & ors.Civil Appeal
No. 4935 of 2023

2. Municipal Committee, Hoshiarpur Vs Punjab
SEB (2010) 13 SCC

3. Arulmighu Nellukadai Mariamman Tirukkoil Vs
Tamilarasi (Dead) by LRS. AIR 2019 WC 3027

4. Gobind Raju Vs Mariamman AIR 2005 SC
1008;

5. Kashmir Singh Vs Harnam Singh AIR 2008 SC
1749,
6. Damodar Lal Vs Sohan Devi & ors.(2016) 3
SCC 78

7. Hero Vinoth Vs Seshammal (2006) 5 SCC 545

8. Amar Singh & ors.Vs Dalip Singh & ors.;
(2012) 13 SCC 405

9. Sir Chunilal VS Mehta and sons Vs Century
Spg. and Mfg. Co. Ltd., AIR 1962 SC 1314

10.
H.
Venkatachala
Iyengar
Vs
B.N.
Thimmajamma & ors., AIR 1959 SC 443

11. Jaswant Kaur Vs Amrit Kaur & ors.reported
in (1977) 1 SCC 369

12. Bharpur Singh & ors.Vs Shamsher Singh,
Civil Appeal No. 7250 of 2008 decided on
12.12.2008,

13. Raj Kumari & ors.Vs Surinder Pal Sharma,
Civil Appeal No. 9683 of 2019 decided on
17.12.2018

14. Meena Pradhan & ors.Vs Kamla Pradhan &
anr., Civil Appeal No. 3351 of 2014 decided on
21.09.2023

15. Shiv Mangal Vs D.D.C., Consolidation No.
317 of 2011 (Lucknow Bench of Allahabad High
Court) decided on 22.08.2014.

16. Jaswant Kaur Vs Amrit Kaur & ors.(1977) 1
SCC 369

17. Jitendra Singh Vs The St. of M.P. & ors.,
SLP(C) No. 13146 of 2021

18. Amritansh Pandey Vs St. of U.P. & ors.;
2023 (161) RD 178

(Delivered by Hon'ble Syed Qamar Hasan
Rizvi, J.)

1. Heard Sri Arun Kumar Gupta,
learned Senior Advocate assisted by Sri
P.K.Upadhyay, learned Counsel for the
petitioner; Sri Satendra Bahadur Yati,
learned
counsel
for
respondent
no.2/caveator; Sri Anshul Nigam, learned
598 INDIAN LAW REPORTS ALLAHABAD SERIES
Standing Counsel for the State-respondent
nos. 1, 4, 5 & 6 and Sri Pankaj Kumar
Gupta, learned Counsel for the Gaon
Sabha- respondent no.3.

2. With the consent of the learned
counsel
for
the
parties,
this
Court
proceeded to decide the present Writ
Petition at the admission stage itself.

3. By means of the present writ
petition, the petitioner has prayed for the
following relief:

"(I) to issue a writ, order or
direction in the nature of certiorari
quashing the impugned judgment and order
dated 31.7.2023 passed in Second Appeal
No. SA/1509/2022/Basti Computerised No.
R-20221714001509 passed by the Board of
Revenue U.P. Lucknow (Annexure No. 17
to this writ petition)

(II) to issue a writ, order or
direction in the nature of mandamus
commanding
and
directing
the
Sub
Divisional
Officer
Harraiya,
Basti,
respondent no.5, to proceed and comply the
direction issued by judgement and order
dated 10.6.2022 passed by the Additional
Commissioner
(Administration),
Basti
Division Basti (Annexure No.14 to this writ
petition) within stipulated time as may
deem fit and proper in the interest of
justice.

(III) to issue any other suitable
writ, order or direction in the mature as
this Hon'ble Court may deem fit and
proper to meet the ends of justice under
the facts and circumstances of the present
case.

(IV) to award cost of writ petition
to the petitioner."

4. The relevant facts in brief, as
narrated by the petitioner, in the writ
petition
are
that
the
petitioner
and
respondent no. 2 are siblings and their
father purchased an agricultural plot of land
bearing khata No. 0006 Gata No. 21M admeasuring area 2.0510 Hectare, situated at
village
Pikaura
Sani,
Tappa
Nawai,
Pargana Nagar Pashchim, Tehsil Harraiya,
District Basti. The father of the petitioner,
namely, Ram Komal Singh died on
20.12.1985 and after his death, the
respondent no. 2 claiming her right over
half of the property, on the basis of an
unregistered WILL dated 24.1.1994, moved
a mutation application dated 18.07.1994.
The Naib Tehsildar, Harraiya vide order
dated 23.09.1994 allowed the aforesaid
application for mutation in favour of
respondent no. 2, namely, Smt. Asha Devi.

5. Against the aforesaid order dated
23.09.1994, the petitioner moved an
application for recall of the said order on
17.10.1996. The said recall application was
rejected vide order dated 03.03.2000 passed
by the Naib Tehsildar, Gaur (Harraiya),
District Basti.

6. Aggrieved by the said order dated
03.03.2000, the petitioner preferred an
Appeal No. 38 of 2001 (Awadhesh Singh
versus Asha Singh) under Section 210 of
the U.P. Land Revenue Act, 1901, before
the Sub Divisional Officer, Harraiya
(respondent no. 5). The said Appeal was
dismissed vide order dated 21.08.2001.

7. Thereafter, the petitioner filed a
Revision under Section 219 of the U.P.
Land Revenue Act, 1901, before the
Divisional Commissioner, Basti Division,
Basti which was also dismissed vide order
dated 20.01.2005 passed by the Additional
Commissioner (Administration), Basti.
12 All. Awadhesh Singh Vs. State of U.P. & Ors.
599

8. The petitioner preferred a Writ
Petition bearing W.P. No. 13751 of 2005,
assailing the aforesaid orders passed by the
Revenue Courts. This Court vide judgment
and order dated 04.08.2017 declined to
exercise its writ jurisdiction to interfere
with the orders passed by the Revenue
Courts in summary proceedings. However,
while dismissing the said Writ Petition vide
Order dated 04.08.2017, this Court left it
open to the parties to get their rights
determined before the Competent Court of
Law in regular proceedings. Paragraph no.
43 of the aforesaid order passed by this
Court is extracted hereinbelow,

"43. I do not find any good
ground to interfere in the orders passed by
the Revenue Courts, moreso, when it is
settled law that this Court should not
interfere in writ jurisdiction in the orders
passed
in
summary
proceedings
by
Revenue Courts. It is always open to the
parties to get their rights determined before
the Competent Court of Law in regular
proceedings."

9. Consequently, the petitioner filed a
Suit under Section 144 of the U. P.
Revenue Code, 2006 which was registered
as Case No. 91 of 2017 and later on
numbered as Case No. 4481 of 2017
(Computerised No. T-2017171453014481),
before
the
Sub
Divisional
Officer,
Harraiya, District Basti (respondent no. 5);
claiming his rights on the basis of being the
only son and male descendent of Late Ram
Komal Singh who was the owner of land in
question.

10. In the said case, an application
was also moved by the petitioner on
22.09.2021, praying for the examination of
genuineness of testator's signature, namely,
Late Ram Komal Singh, on the Will in
dispute dated 24.01.1984 propounded by
respondent no.2; from the handwriting
expert, with the specimen of the signature
of the testator.

11. The Court of learned Sub
Divisional Officer (respondent no. 5)
dismissed the said Suit vide judgment and
order dated 08.10.2021 and rejected the
aforesaid application dated 22.09.2021 as
unwarranted.

12. Against the aforesaid judgment
and order dated 08.10.2021 passed in the
Suit, bearing Case No. 4481 of 2017
(Computerised No. T-2017171453014481),
the petitioner preferred an appeal bearing
Appeal No. 629 of 2021 under Section 207
of the U.P. Revenue Code, 2006, before the
learned Court of Commissioner, Basti. The
Additional Commissioner (Administration),
Basti allowed the said Appeal vide Order
dated 10.06.2022 by setting aside the
judgment and decree dated 08.10.2021 and
remanded the matter to the learned Court of
Sub
Divisional
Officer,
Harraiya
(respondent no.5) with the direction to
decide the matter afresh, on merits, after
affording adequate opportunity of hearing
and leading evidence; to both the parties, in
respect of their title and possession. The
said Appellate Court of Commissioner
while remanding the matter vide order
10.06.2022 made a categorical observation
that it would be legitimate for the trial court
to decide the matter only after getting the
signature of Late Ram Komal Singh duly
verified by an expert.

13. Assailing the aforesaid judgment
and order dated 10.06.2022, the respondent
no. 2 preferred a Second Appeal under
Section 208 of the U.P. Revenue Code,
2006, before the learned Board of Revenue,
U.P. at Lucknow (respondent no.6) which
600 INDIAN LAW REPORTS ALLAHABAD SERIES
was registered as Second Appeal No.
SA/1509/2022/Basti.

14. The learned Board of Revenue
(respondent no. 6) vide judgement and
order
dated
31.07.2023
allowed
the
aforesaid Second Appeal and set-aside the
judgment and order dated 10.06.2022
passed by the Additional Commissioner
(Administration), Basti.

15. Being aggrieved by the aforesaid
judgment and order dated 31.07.2023, the
petitioner herein preferred the instant writ
petition praying for a Writ in the nature of
Certiorari quashing the impugned judgment
and order dated 31.07.2023 passed by the
Board
of
Revenue
U.P.,
Lucknow
(respondent no.6) in Second Appeal No.
SA/1509/2022/Basti.

16. Assailing the impugned judgment
and order dated 31.07.2023, the contention
of Sri Arun Kumar Gupta, learned Senior
Advocate appearing on behalf of the
petitioner is as under:

16.1. It has been asserted by the
learned Senior Counsel that the learned
Board of Revenue (respondent no. 6)
allowed the Second Appeal vide the
impugned judgment and order dated
31.07.2023
without
formulating
'any
substantial questions of law' and thereby
acted in utter disregard to the provisions of
Section 208(2) of the U.P. Revenue Code,
2006 read with Section 100 of the Code of
Civil Procedure, 1908. In support of his
submission, the learned Senior Counsel has
relied upon the judgment dated 07.08.2023
passed by the Hon'ble Supreme Court in
the
case
of
Bhagya
Shree
Anant
Gaonkara versus Narendra alias Nagesh
Bharma Holkar and others, Civil Appeal
No. 4935 of 2023 wherein the Hon'ble
Apex Court has been pleased to hold that
under section 100 of the Code of Civil
Procedure, 1908, the High Court cannot
admit regular second appeal without
framing substantial question of law.

16.2. Further, he submitted that
the request made by the petitioner to the
learned Court of Sub Divisional Officer
(respondent no.5) regarding the verification
of genuineness of the signature on the Will
dated 24.01.1984 by an expert was illegally
denied by the learned Sub Divisional
Officer (respondent no.5) vide order dated
08.10.2021 by ignoring the settled legal
position on the said issue. He narrates that
it is this finding of the learned Sub
Divisional Officer (respondent no.5) which
was set aside vide order dated 10.06.02022
passed by the Court of learned Additional
Commissioner
(Administration),
Basti
wherein it was observed that it would be
legitimate for the trial court to decide the
matter only after getting the signature of
Late Ram Komal Singh verified by an
expert. It is the case of the petitioner that
the learned Board of Revenue (respondent
no. 6) has committed a manifest error of
law while holding that verification of the
genuineness of the signature of the testator
in the alleged Will is not required. In
support of this contention, he has relied
upon the judgment passed by the Hon'ble
Supreme Court in the case of H.
Venkatachala
Iyengar
versus
B.N.
Thimmajamma and others, reported in
AIR 1959 SC 443 and Meena Pardhan
and Others versus Kamala Pradhan and
Another, Civil Appeal No. 3351 of 2014
decided on 21.09.2023.

16.3. The next submission on
behalf of the petitioner is that the Board of
Revenue (respondent no.6) while passing
the impugned order dated 31.07.2023, has
12 All. Awadhesh Singh Vs. State of U.P. & Ors.
601
committed manifest error amounting to
perversity by holding that the alleged
unregistered Will was validated by this
Court vide judgment and order dated
04.08.2018 passed in Writ- C No.- 13751
of 2005.

16.4. Further, the learned Senior
Counsel submits that the Board of Revenue
has committed serious error of law by taking
the mutation proceedings as a basis of the
genuineness of the Will in dispute, while
deciding the Second Appeal arising out of
regular Suit filed under section 144 of the
U.P. Revenue Code, 2006, despite the glaring
fact that only the mutation proceedings in the
instant case had been concluded by the
judgment and order dated 04.08.2017 passed
by this Court in Writ-C No. 13751 of 2005.

17. Refuting the arguments made on
behalf of the petitioner, Sri Satendra
Bahadur Yati, learned Counsel appearing
on behalf of the respondent no.2 advanced
the following submissions:

17.1. Sri Yati, learned Counsel for
the petitioner has vehemently argued that
although, no substantial question of law was
framed by the learned Board of Revenue
(respondent no.6), yet, on finding obvious and
blatant perversity in the Order dated 10.06.2022
passed by the Additional Commissioner
(Administration), Basti, it became incumbent
upon the Board of Revenue (respondent no. 6)
to set-aside the said illegal order dated
10.06.2022 and in the facts of the present
case, there needs no interference by this
Court under Article 226 of the Constitution of
India, with regard to the impugned order
dated 31.07.2023 passed by the Board of
Revenue (respondent no. 6).

17.2. The learned Counsel further
defended the findings recorded by the
Board of Revenue (respondent no. 6) which
held the Will in question to be a valid and
genuine document on the basis of the
orders passed by the Revenue Courts that
attained finality vide judgment and order
dated 04.08.2017 passed by this Court in
Writ Petition No. 13751 of 2005 and
contended that it is a well-established
principle of law that if the Will is duly
signed, rational on the face of it and
genuinely appears to be duly executed, it is
presumed, in the absence of evidence to the
contrary,
to
be
valid.
He
strongly
contended that the signature on the Will is
a substantial proof of its validity, till the
contrary is proved by the party alleging the
said Will to be invalid on the basis of
disputed signature of the testator and as
such the onus, if any, for proving that the
Will to be invalid, falls upon the petitioner
and not the private-respondent no.2.

18. Except the above, no other point
in argument has been pressed by the
learned counsels for the parties during the
course of hearing.

19. Having heard the learned counsels
for the parties; the moot point for
consideration by this Court in the instant
case is that while entertaining the Second
Appeal No. SA/1509/2022 (Asha Devi
versus Awadesh Singh), under Section 208
of the U.P. Revenue Code, 2006, was it
mandatory for the learned Board of
Revenue
(respondent
no.6)
to
frame
'substantial question of law'.

20. At the very outset, it is imperative
to reiterate the law on the subject of
Appeal. It is a well-settled legal position
that the right of appeal stems from a statute
and it is the statute that sets the scope of
jurisdiction of a Court of law to hear an
Appeal. In the present case, the scope of
602 INDIAN LAW REPORTS ALLAHABAD SERIES
Second Appeal has been set in by Section
208 of the U.P. Revenue Code, 2006. For a
ready reference, the same is quoted below,

"208.
Second
Appeal
(1)
Where
in
any
suit,
application
or
proceeding specified in column 2 of the
Third Schedule, any final order or decree is
passed in any first appeal filed under
section 207, and any party to such appeal
is aggrieved by it, such party may prefer a
second appeal to the Court specified
against it column 5.

(2) The Appellate Court shall not
entertain a second appeal unless it is
satisfied
that
the
case
involves
a
substantial question of law.

(3) The period of limitation for
filing a second appeal under this section
shall be ninety days from the date of the
order or decree appealed against."

(emphasis supplied)

21. From the bare reading of the
above quoted Section 208 of the U.P.
Revenue Code, 2006, it is abundantly clear
that the jurisdiction of the Appellate Court
to entertain Second Appeal is embedded
with the condition that the case before it
involves a 'substantial question of law'.
The difference between the substantial
questions involved in the first and the
second appeal has been discussed by the
Hon'ble Supreme Court in the case of
Bhagya Shree Anant Gaonkara versus
Narendra alias Nagesh Bharma Holkar
and
others
(Supra).
The
relevant
paragraph of the same is extracted
hereinbelow,

"...This would clearly indicate
that the First Appellate Court is the final
court on questions of facts but only if there
is any substantial question of law, a second
appeal could be considered and raised by
the High Court and such substantial
question(s) of law ought to be answered."

22. It is noteworthy that the Hon'ble
Apex Court in the case of Municipal
Committee, Hoshiarpur versus Punjab
SEB reported in (2010) 13 SCC 216 has
laid stricter emphasis upon the inherent
limitations on the jurisdiction of second
appellate court by cautioning against the
expansive exercise of its jurisdiction. For
ready reference, paragraph 16 of the said
judgment is quoted hereinbelow:

"16. ... A second appeal cannot
be decided merely on equitable grounds as
it lies only in a substantial question of law,
which is distinct from substantial question
of fact. The court cannot entertain a second
appeal unless a substantial question of law
is involved, as the second appeal does not
lie on the ground of erroneous findings of
fact based on an appreciation of the
relevant
evidence.
The
existence
of
substantial question of law is a condition
precedent for entertaining the second
appeal; on failure to so, the judgment
cannot be maintained."

23. In furtherance of the aforesaid
restriction placed on second appellate
courts; the Hon'ble Supreme Court in the
case
of
Arulmighu
Nellukadai
Mariamman
Tirukkoil
versus
Tamilarasi (Dead) by LRS. reported in
AIR 2019 WC 3027 made it obligatory
upon the second appellate court to either
formulate a substantial question of law or
to dismiss a second appeal that lack
substantial question of law in limine,
without service of any notice to the
respondent(s) after recording a finding in
12 All. Awadhesh Singh Vs. State of U.P. & Ors.
603
the dismissal order that the appeal does not
involve any substantial question of law, by
recording reasons in support of the
dismissal order.

24. Further, the Hon'ble Supreme
Court in the case of Gobind Raju versus
Mariamman reported in AIR 2005 SC
1008; Kashmir Singh versus Harnam
Singh reported in AIR 2008 SC 1749,
Damodar Lal versus Sohan Devi and
others reported in (2016) 3 SCC 78 and in
a series of decisions has been pleased to
clarify that in order to constitute a
'substantial question of law', the question
should be debatable, not previously settled
by law or by any binding precedent and
must have a material bearing on the
decision of the case. A perversity of fact
recorded by the lower court or the
ignorance of certain fact shall not constitute
a substantial question of law.

25. In addition to this, a 'substantial
question of law' is not just a legal point on
which there may be multiple opinions or
one which is of general importance but a
question of law which is involved in the
case as between the parties where there is
room for difference of opinions on it or
where the court thinks it necessary to deal
with that question at some length. This
proposition
finds
support
from
the
judgment passed by the Hon'ble Supreme
Court in the case of Hero Vinoth versus
Seshammal reported in (2006) 5 SCC 545,
wherein the Hon'ble Court was pleased to
hold as follows:

"21... However, it is clear that
the legislature has chosen not to qualify the
scope of "substantial question of law" by
suffixing
the
words
"of
general
importance" as has been done in many
other provisions such as Section 109 of the
Code
or
Article
133(1)(a)
of
the
Constitution. The substantial question of
law on which a second appeal shall be
heard need not necessarily be a substantial
question of law of general importance."

26. Moreover, to meet the condition
"unless it is satisfied that the case involves
a substantial question of law" as provided
under Section 208(2) of the U.P. Revenue
Code, 2006; certain prerequisites must be
met by a legal question to be a 'substantial
question of law involved in the case'.
Firstly, there must be a basis for this
question which has been established in
either the pleadings, legal arguments or
submissions of the party/parties. Secondly,
this question should naturally arise from
the substantial facts established by the factfinding Court and the determination of this
legal question must be imperative for a fair
and just outcome of the case, i.e., the
question should strike at the core of the
matter under consideration.

27. The Hon'ble Supreme Court in
the case of Amar Singh and others versus
Dalip Singh and others; reported in
(2012) 13 SCC 405, has been pleased to
hold that the purpose of framing of
substantial question of law is to give the
parties an opportunity to come prepared on
the partucular question and the Hon'ble
Court has further observed that when the
substantial question of law is formulated by
the Court then the same must be made
known to the parties and thereafter they
have to be given an opportunity to advance
arguments thereon.

28. In this regard, the Hon'ble
Supreme Court in the case of Sir Chunilal
V. Mehta and sons versus Century Spg.
and Mfg. Co. Ltd., reported in AIR 1962
SC 1314, laid the test to be followed for
604 INDIAN LAW REPORTS ALLAHABAD SERIES
determining whether a question of law that
is raised in a particular case, is in fact, a
substantial question of law. The paragraph
6 of the same is reproduced below,

"6. ... The proper test for
determining whether a question of law
raised in the case is substantial would, in
our opinion, be whether it is of general
public importance or whether if directly
and substantially affects the rights of the
parties and if so whether it is either an
open question in the sense that it is not
finally settled by this Court or by the Privy
Council or by the Federal Court or is not
free from difficulty or calls for discussion
of alternative views. If the question is
settled by the highest court or the general
principles to be applied in determining the
question are well settled and there is a
mere question of applying those principles
or that the plea raised is palpably absurd
the question would not be a substantial
question of law."

29. From all that is mentioned
hereinabove, the principle that comes to
light is that the formulation of substantial
question of law is sine qua non to Section
208 of the U.P. Revenue Code, 2006. The
very jurisdiction of the Board of Revenue
in entertaining a second appeal is founded
on the formulation of a substantial question
of law. The appellate jurisdiction of the
Board of Revenue under section 208 of the
U.P. Revenue Code, 2006 is not akin to the
appellate jurisdiction under Section 207 of
the U.P. Revenue Code, 2006; it is
restricted to such substantial question(s) of
law that may arise from the final order and
decree appealed against. Second Appeal is
entertainable by the Board of Revenue
under section 208 of the U.P. Revenue
Code, 2006 only upon its satisfaction that a
substantial question of law is involved in
the matter. It is, however, open to the
Board of Revenue to re-frame substantial
question of law or frame substantial
question of law afresh or hold that no
substantial question of law is involved at
the time of hearing of the second appeal but
reversal of the final order and decree
passed in appeal by the court below in
exercise of its jurisdiction under section
208 of the U.P. Revenue Code, 2006 is
impermissible
without
formulating
substantial question of law and a decision
on such question. Needless to say that
where the Code deals expressly with a
particular manner, the provision should
normally be regarded as exhaustive.

30. The sub-section (2) of section 208
of
the
U.P.
Revenue
Code,
2006
specifically provides that "The Appellate
Court shall not entertain a second appeal
unless it is satisfied that the case involves a
substantial question of law". (emphasis
supplied). The term 'shall not' followed by
the term 'unless' itself reflects restrictive
nature of Section 208 of the U.P. Revenue
Code, 2006 and the language of the same is
indicative of the legislative intention that the
legislature did not want Second Appeal to
become a 'third trial on facts'. It would not be
out of place to mention here that the term 'shall
not' in its ordinary significance is a mandatory
prohibition and the courts should ordinarily
give that interpretation to that term unless such
an interpretation leads to some absurd or
inconvenient consequence or be it variance with
the intent of the legislature, to be collected from
other parts of the Act. It is a settled principle of
rule of interpretation that whenever a statute
requires a particular act to be done in a
particular manner, then such act has to be done
in that manner only and in no other manner.

31. In the instant case, the learned
Board of Revenue (respondent no.6) has
12 All. Awadhesh Singh Vs. State of U.P. & Ors.
605
admittedly reversed the order passed by the
First Appellate Court while allowing the
Second Appeal; but has neither framed nor
formulated any substantial question of law,
thereby ignoring the mandatory provision
as contemplated under Section 208 of the
U.P. Revenue Code, 2006. As such, the
Board of Revenue (respondent no.6)
exercised its jurisdiction in abdication of
the duty casted upon the second appellate
court under section 208 of the U.P.
Revenue Code, 2006.

32. As far as the rival contentions of
the
contesting
parties
regarding
the
necessity of verification of signature of the
testator, on the Will dated 24.01.1984, are
concerned, this court, at the very inception
deems it imperative to note certain
fundamental and well accepted principles
on the subject of validity of a Will. It is a
well settled principle that the onus probandi
lies
in every case upon the party
propounding a Will and such propounder of
the Will must satisfy the conscience of the
Court that the instrument so propounded is
the last Will of a free and capable testator.
However, in absence to any conclusive
proof to the contrary, the Will is presumed
to be correct when it is duly attested with
the signature of the testator.

33. At this stage, it would be apposite
to refer to the judgment passed by the
Hon'ble Supreme Court in the case of H.
Venkatachala
Iyengar
versus
B.N.
Thimmajamma and others, reported in
AIR 1959 SC 443 wherein the Hon'ble
Apex Court has been pleased to hold that
the party propounding a Will or otherwise
making a claim under a Will is no doubt
seeking to prove a document. It would not
be out of place to mention here that as per
Section 67 of the Indian Evidence Act,
1872, if a document is alleged to be signed
by a person, the said signature must be
proved to be in his handwriting and for
proving such a hand writing under sections
45 and 47 of the Act, the opinion of experts
and of persons acquainted with the
handwriting of the person concerned are
made relevant. For a ready reference
paragraph 19 of the said judgment is
reproduced hereinbelow,

"19. What is the true legal
position in the matter of proof of wills ? It
is well-known that the proof of wills
presents a recurring topic for decision in
courts and there are a large number of
judicial pronouncements on the subject.
The party propounding a will or otherwise
making a claim under a will is no doubt
seeking to prove a document and, in
deciding how it is to be proved, we must
inevitably refer to the statutory provisions
which govern the proof of documents.
Sections 67 and 68 of the Evidence Act are
relevant for this purpose. Under section 67,
if a document is alleged to be signed by any
person, the signature of the said person
must be proved to be in his handwriting,
and for proving such a handwriting under
sections 45 and 47 of the Act the opinions
of experts and of persons acquainted with
the handwriting of the person concerned
are made relevant. Section 68 deals with
the proof of the execution of the document
required by law to be attested; and it
provides that such a document shall not be
used as evidence until one attesting witness
at least has been called for the purpose of
proving its execution. These provisions
prescribe the requirements and the nature
of proof which must be satisfied by the
party who relies on a document in a court
of law. Similarly, sections 59 and 63 of the
Indian Succession Act are also relevant.
Section 59 provides that every person of
sound mind, not being a minor, may
606 INDIAN LAW REPORTS ALLAHABAD SERIES
dispose of his property by will and the
three illustrations to this section indicate
what is meant by the expression "a person
of sound mind" in the context. Section 63
requires that the testator shall sign or affix
his mark to the will or it shall be signed by
some other person in his presence and by
his direction and that the signature or mark
shall be so made that it shall appear that it
was intended thereby to give effect to the
writing as a will. This section also requires
that the will shall be attested by two or
more witnesses as prescribed. Thus the
question as to whether the will set up by the
propounder is proved to be the last will of
the testator has to be decided in the light of
these provisions. Has the testator signed
the will ? Did he understand the nature and
effect of the dispositions in the will ? Did
he put his signature to the will knowing
what it contained ? Stated broadly it is the
decision
of
these
questions
which
determines the nature of the finding on the
question of the proof of wills. It would
prima facie be true to say that the will has
to be proved like any other document
except as to the special requirements of
attestation prescribed by section 63 of the
Indian Succession Act. As in the case of
proof of other documents so in the case of
proof of wills it would be idle to expect
proof with mathematical certainty. The test
to be applied would be the usual test of the
satisfaction of the prudent mind in such
matters."

34. The above mentioned legal
position has also been appreciated by the
Hon'ble Supreme Court as well as by the
High Courts in a plethora of judgments,
notably, in the case of Jaswant Kaur
versus Amrit Kaur and others reported in
(1977) 1 SCC 369, Bharpur Singh and
others versus Shamsher Singh, Civil
Appeal No. 7250 of 2008 decided on
12.12.2008, Raj Kumari and others
versus Surinder Pal Sharma, Civil
Appeal No. 9683 of 2019 decided on
17.12.2018, Meena Pradhan and others
versus Kamla Pradhan and another,
Civil Appeal No. 3351 of 2014 decided on
21.09.2023, Shiv Mangal versus D.D.C.,
Consolidation No. 317 of 2011 (Lucknow
Bench of Allahabad High Court) decided
on 22.08.2014.

35. However, the cases in which the
execution of the Will is surrounded by
suspicious
circumstances
stand
on
a
different footing, the Hon'ble Supreme
Court in the case of Jaswant Kaur versus
Amrit Kaur and others reported in (1977)
1 SCC 369, laid down a different approach
in the cases where the Will is under
suspicion. The Hon'ble Court has been
pleased to hold that the propounder must
remove all legitimate suspicions before the
said document can be accepted as the last
Will of the testator. For ready reference, the
paragraphs (4) and (5) of the aforesaid
judgment passed by the Hon'ble Apex
Court is extracted hereinbelow,

"(4) Cases in which the execution
of the will is surrounded by suspicious
circumstances stand on a different footing.
A shaky signature, a feeble mind, an unfair
and unjust disposition of property, the
propounder himself taking a leading part in
the making of the will under which he
receives a substantial benefit and such
other circumstances raise suspicion about
the execution of the will. That suspicion
cannot be removed by the mere assertion of
the propounder that the will bears the
signature of the testator or that the testator
was in a sound and disposing state of mind
and memory at the time when the will was
made, or that those like the wife and
children of the testator who would
12 All. Awadhesh Singh Vs. State of U.P. & Ors.
607
normally receive their due share in his
estate were disinherited because the
testator might have had his own reasons for
excluding them. The presence of suspicious
circumstances makes the initial onus
heavier and therefore, in cases where the
circumstances attendant upon the execution
of the will excite the suspicion of the court,
the propounder must remove all legitimate
suspicions before the document can be
accepted as the last will of the testator.

(5) It is in connection with wills,
the execution of which is surrounded by
suspicious circumstances that the test of
satisfaction of the judicial conscience has
been evolved. That test emphasises that in
determining the question as to whether an
instrument produced before the court is the
last will of the testator, the court is called
upon to decide a solemn question and by
reason of suspicious circumstances the
court has to be satisfied fully that the will
has been validly executed by the testator."

36. Further, more recently, the
Hon'ble Supreme Court in the case of
Meena Pardhan and Others versus
Kamala Pradhan and Another, Civil
Appeal No. 3351 of 2014 decided on
21.09.2023 was pleased to hold that
whenever there exists any suspicion as to
execution of the Will, the initial onus on
the propounder becomes heavier to remove
all legitimate suspicions.

37. From the perusal of propositions
of law as laid down by the Hon'ble
Supreme Court in the cases mentioned
above, it is evident that in a case involving
suspicion on the signature of the testator of
the Will, its proof ceases to be a simple lis
between the plaintiff and the defendant and
the propunder of the Will would be called
upon to show cogent, satisfactory and
sufficient evidence that the Will was signed
by the testator, that the testator at the
relevant time was in a sound and disposing
state of mind, the testator understood the
nature and effect of the disposition and has
put the signature on the document without
any influence, in order to dispel suspicion.

38. At this juncture, it is also pertinent
to point out that the Will may be a
registered Will and there may be broad
statements by the witness that he had
witnessed the testator admitting execution
of the Will but the same itself would not
mean that the statutory requirements of
proving the Will need not be complied
with. It is the judicial conscience that has to
be
satisfied,
else
no
letters
of
administration in favour of the propounder
can be granted and in order to satisfy its
conscience, the court may call upon
evidences in this regard. However, it is
obvious that before deciding the material
questions of fact which arise in application
for probate or in actions on Wills, no hard
and fast or inflexible rules can be laid down
for the appreciation of evidence.

39.