# Bhagwan Bux Singh v. Board of Revenue, U.P. Allahabad & Ors

- **Citation:** (2024) 12 ILRA 269
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-12
- **Case number:** Writ B No. 15803 of 1981
- **Bench:** Saurabh Shyam Shamshery
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhagwan-bux-singh-v-board-of-revenue-u-p-allahabad-ors-51205
- **Pages:** 9

## Headnote

A. Civil Law - Indian Succession Act,
1925- Section 63 - Indian Evidence Act,
1872 -Section 68 - Proof of Execution of
Will - A Will has to be proved in terms of
Section 63, Indian Succession Act, 1925,
and Section 68 of Indian Evidence Act,

## Text

12 All. Bhagwan Bux Singh Vs. Board of Revenue, U.P. Allahabad & Ors.
269

19.
The
Consolidation
Officer
has
returned a finding to this effect and rejected the
objection of petitioner, however, without even
referring to it as well as without disturbing it,
the Settlement Officer Consolidation has erred
in causing interference and wrongly allowed the
objections of the petitioner. The said error was
rightly cured by Board of Revenue and by a
very detailed reasoned order has set aside the
order passed by the Settlement Officer
Consolidation and upheld the findings returned
by the Consolidation Officer that adoption was
conducted without permission and consent of
wife of adopted father. She has not even signed
the adoption deed, therefore, adoption was not
legally valid.

20. The aforesaid findings returned by the
Board of Revenue are in terms of above
referred judgment Uttam Chandra (supra) and
since there are evidence which has not been
contradicted, that adoption proceedings were
conducted without consent of wife of person
who adopted the child, therefore, mandatory
requirement was not fulfilled as well as nature
of evidence has also not proved beyond
reasonable doubt that ceremony of giving and
taking was under taken.

21. In the aforesaid circumstances, the
Court is of considered opinion that there is no
reason to interfere with reasoned order passed
by Board of Revenue as the mandatory
requirement for valid adoption were not
followed, therefore, this writ petition is
dismissed.

22. The Court extends apology to litigants
since this writ petition is being decided after
more than four decades.
----------
(2024) 12 ILRA 269
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.12.2024

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.
Writ B No. 15803 of 1981

Bhagwan Bux Singh ...Petitioner
Versus
Board of Revenue, U.P. Allahabad & Ors.
 ...Respondents

Counsel for the Petitioner:
Krishna Mohan

Counsel for the Respondents:
S.C., D.S. Pandey

A. Civil Law - Indian Succession Act,
1925- Section 63 - Indian Evidence Act,
1872 -Section 68 - Proof of Execution of
Will - A Will has to be proved in terms of
Section 63, Indian Succession Act, 1925,
and Section 68 of Indian Evidence Act,
1872. In order to prove the Will u/s 68 of
Indian Evidence Act, 1872, at least one
attesting witness has to come forward to
prove the Will. Execution of Will cannot be
proved and a Will cannot be used as
evidence until one attesting witness at
least is examined and has been called for
the purpose of proving its execution, if
there be an attesting witness alive, and
subject to the process of the Court and
capable of giving evidence. (Para 26)

B. Civil Law - Will - Land in question was
of one Balidan Singh, which was later on
inherited by one Sheodin Singh. Plaintiff /
Respondent No. 4 claimed that Sheodin
Singh has executed a Will deed in his
favour and, on the basis of said Will deed,
instituted a suit under Section 229B of
U.P.Z.A. & L.R. Act, claiming Bhumidhari
rights. Plaintiff / Respondent No. 4 was
declared
co-bhumidhar.
Petitioner's
appeal was dismissed. Second Appeal was
also dismissed. Held: One of the attesting
witnesses had died before the suit was
filed; however, it is not on record whether
the other attesting witness was alive or
not. Trial Court decided the issue on the
basis of the statement of PW-1 Ranjeet
Singh, brother of Brijlal (since deceased),
a marginal witness to the Will, and he
proved the signatures of his brother.
There is no finding that the other attesting
270 INDIAN LAW REPORTS ALLAHABAD SERIES
witness
was
dead;
it
is,
therefore,
presumed that he was alive. However, the
plaintiff has neither produced him nor was
the scribe produced. Witness Ranjeet
Kumar can only prove the signature of his
brother (since deceased), one of the
attesting witnesses. It was mandatory to
have
examined
the
other
attesting
witnesses to prove the Will in accordance
with law. It was not the case that the
other attesting witness was not alive.
Appellate Court has not considered the
requisite procedure to prove a Will, i.e.,
whether the attesting witnesses were
examined or not, and the consequence of
their non-examination. Board of Revenue
has
not
applied
mind
whether
any
question of law was involved or not. As
the other marginal witness was not
examined, as well as the scribe was also
not examined, therefore, the Will cannot
be considered to be proved. (Para 21, 22)

Allowed. (E-5)

List of Cases cited:

1. Gaon Sabha Vs B.R., 2024:AHC16953,

2. Dr. Jeevan Bahadur Samaddar Vs Govind
Charan Samaddar & ors., dated 30.05.2013
(Second Appeal No. 234 of 2010)

3. Santosh Hazari Vs Purushottam Tiwari, 2001
LawSuit (SC) 237

4.
H.
Venkatachala
Iyengar
Vs
B.N.
Thimmajamma & ors. AIR 1959 SC 443

5. Meena Pradhan & ors. Vs Kamla Pradhan &
Anr. 2023 INSC 847

(Delivered by Hon'ble Saurabh Shyam
Shamshery, J.)

1. Heard Mr. Rohit Verma, Advocate
holding brief of Mr. Krishna Mohan, learned
counsel for petitioner and Mr. Jai Raj, learned
counsel for the contesting respondents.

2. In the present case land in dispute
was acquisition of one Balidan Singh, which
was later on inherited by one Sheodin Singh,
who died issueless in the year 1965. The
respondent no. 4 set up a case that he was son
of Sheodin Singh"TMs sister and further claimed
that such Sheodin Singh has executed a Will
deed on 23.07.1957 in his favour as well as on
ground of inheritance also.

3. The respondent no. 4 on the basis of
said Will deed instituted a suit under section
229B of U.P.Z.A. & L.R. Act, claiming Sirdhari
and Bhumidhari rights on part of land in
dispute. The Suit was contested by the
petitioner that said Balidan Singh has only one
daughter namely Sheo Kala and Sheodin Singh
was not empowered to execute Will in regard to
land in dispute.

4. The Assistant Collector Ist-Class
Rai-Bareilly, framed eight issues, including the
issue no. 2 i.e. (Did Sheodin Singh execute Will
deed in favour of the plaintiff? If so, is it valid?

5. The learned Trial Court decided the
said issue, that the Will deed was executed by
Sheodin Singh, in favour of the plaintiff and
that it was also valid. Other issues were also
decided and finally the Suit was decreed and the
plaintiff/respondent no. 4 was declared CoBhumidar and Co-Sirdar of parts of land in
dispute by judgment dated 31.10.1975. The
relevant findings, so far as Issue nos.1 and 2 is
concerned, are reproduced hereinafter:-

"Issues nos. 1 and 2:-
 From the judgment dated 7-6-81 in
mutation case no.82 filed by Chhotey Singh in
Tahsildar's court shows that it had been held
that the plaintiff Chhotey Singh is the sister's
son of Sheodin - Singh. The will not deed which
is a registered document was executed by
Sheodin Singh on 23-7-57 the megina 1 witness
of which was Brij Lal, now dead, whose
signatures were proved by P.W.1 Ranjit singh,
the brother of Brij Lal. The deceased willed all
his property in favour of the plaintiff whom is
he has mentioned there in as his sister's son.
Sheodin singh died in 1965 and the deed was
executed 8 years prior to his death in which he
has clearly mentioned that Chhotey Singh, son
12 All. Bhagwan Bux Singh Vs. Board of Revenue, U.P. Allahabad & Ors.
271
of his sister's Smt.Rajauta lived with Sheodin
Singh during his life time. P.W.1 Ranjit Singh
also have proved the pedigree given in the
plaint and stated that the plaintiff is the son of
Rajuta Devi who was the real sister's of
Sheodin
singh.
Pratap
Bahadur
Singh,
defendant no.8 has also proved the above facts
in his statement. Even D.W.1 Ram Swarup
Singh has deposed in cross-examination that
Baladan Singh had a son Sheodin Singh and a
daughter
name
Rajauta
Kunwar.
The
defendants could not give any concreate proff
against the above evidence to prove their
version to the effect that Baladan Singh had no
daughter, as alleged by them, named Sheo
Kala. Thus it is proved beyoned doubt that the
plaintiff is the real sister's son of Sheodin Singh
particularly in view of the statement of
Bhagwan Bux singh himself where in crossexamination he has definitely deposed that
Puran- Singh is not the sister's son of Sheodin
Singh. No doubt in his examination in chief it
was alleged that Puran singh is the son of Sheo
Kala who was the step sister of Sheodin Singh
and who has been also living in house of
Sheodin Singh. But D.W.2 Bhagwan Bux Singh
further stated that Babadan Singh had got only
one wife and no second marriage of his was
performed.
 I, therefore, hold that the plaintiff,
Chhotey Singh is the son of Smt.Rajauts, the
real sisters of Sheodin Singh.
 As regards the validity of the willdeed, executed by Sheodin Singh, dated 23-757, it has been argued on behalf of the
contesting defendants that he could execute the
deed only he respect of the Bhumidhari rights
and not Sirdari Land, in this case the matter of
intetitance is involved and the plaintiff is not
claiming the bhumidhari or Sirdari rights
simply on the basis of the will-deed but he has
claimed the inheritance on the basis of his
being the sister's son of the deceased Sheodin
Singh. The contesting defendants have not
cared to prove their version that the will is
Farzi, as alleged by them in the writtenstatement.
 As such I, hold that the will deed was
executed by Sheodin Singh in favour of the
plaintiff and that it is also valid.
 In view of the above findings Issues
Nos.1 and 2 are decided in the affirmative."

6. The petitioner being aggrieved, filed
an Appeal before the Additional Commissioner
Lucknow, which was dismissed by an order
dated 12.3.1978 and the finding in regard to
issue of Will by the learned Trial Court was
upheld and it was declared to be a genuine
registered document.

"अपीलकताा ने 1970 आर०डी० पेज 103,1973
आर०डी० पेज 180 तथा 1967 आर०डी० पेज 358 पर भी भरोसा
दकया।
 मैने उभय पक्षों के दवद्वान अदभविागणों की बहस सुनी
तथा पत्रावली का अवलोकन दकया।
अपीलकताा का यह कथन दक दशविीन की मृत्यु 23-24वषा
पहले 1952 में हुयी, सही नहीं है क्योंदक दिनांक 23-7-57को उसने
रदजस्टडा वसीयतनामा दकया है दजससे स्पष्ट होता है दक उस दतदथ को वह
दजन्िा था। उस वसीयत नामें से स्पष्ट होता है दक श्रीमती रजीता कुूँवर
उसकी बहन है और छोटे दसंह वलि नन्िलाल दसंह उसका लड़का है। यह
िस्तावेज मृतक का प्रीदवयस स्टेट मेन्ट (प्रीदवयस स्टेटमेन्ट) माना जायेगा।
और 28वषो से पुराना िस्तावेज न होते हुये भी इसकी इस हि तक
इवीडेन्सरी वैलयू (इवेडेन्सरी वैलयू) महत्वपूणा रहेगी। इससे यह अवश्य
स्थादपत हो जाता है दक मृतक दशव िीन की बहन रजीता थी और उसका
लड़का छोटे दसंह था अस्तु वह असारण तथा दशव िीन दसंह की जायिाि
का वाररस होगा क्योंदक भगवान वक्स दसंह ने दशविीन दसंह को इनके
जीवन काल में भूदम से दनष्कादसत आउट कर दिया था। दनष्कासन के दलए
काफी ठोस साक्ष्य की आवश्यकता है। दनष्कासान के गवाह भगवान वक्स
दसंह तथा राम स्वरूप है भगवान बक्स दसंह स्वयं पक्ष है। राम स्वरूप
डी०डब्लू०2 का बयान बहुत दवश्वसनीय नहीं है क्योंदक यह दशव िीन की
बहन रजीता कुूँवर को नहीं जानता क्योंदक उसके अनुसार दशवकला वहन
थी। यह बयान दशव िीन द्वारा दलदखत रदजस्टडा दवल (रदजस्टर दवल से
खदन्डत होता है अस्तु यह गवाह दवश्वसनीय नहीं है। इस गवाह ने यह भी
कहा है दक दशविीन के जीवनकाल ब्रहममन लोगों का कब्जा हो गया था
और व्राहमनों से अगपाल दसंह ने कब्जा कर दलया यह स्पष्ट आउस्टर
(आउस्टर) दसद्ध नहीं करता आउस्टर के दलये नालेज (नोलेज)
औरदडनायल आफ आइदटन और होस्टइल (होदस्टल) कब्जा कादवज
करना आवश्यक है जो इस बयान से दसद्ध नहीं होता अस्तु इस साक्ष्य से
दशव िीन दसंह का आउस्टर सादबत नहीं दकया जा सकता है। 368 फ०
की रसीि आवराती से भी स्पष्ट होता है दक दशव िीन दसंह का कब्जा उस
वषा था 1378-77 फ की भी रसीिें दशविीन दसंह के नाम की है परन्तु
उस समय यह मर चुका था परन्तु इससे यह अवश्य इनकार (अपठनीय)
दकया जा सकता है। दक मरने के उपरान्त भी अपीलकताा का कब्जा नहीं
था। दिनांक 14-6-52 के रेहन नामें से आउस्टर की बात न न स्पष्ट होती
है न प्रजयूम की जा सकती है। इससे ऐसा लगता है दक ब्रहमनो ने हाथ
दवलाकब्जा रेहन रखा गया जब दक राम स्वरूप गवाह के बयान से प्रतीत
272 INDIAN LAW REPORTS ALLAHABAD SERIES
होता है दक व्राहमनों का का कब्जा था और उनसे कब्जा जगपाल दसंह ने
वावत दलया। इस रेहन नामें से यह और स्पष्ट होता है दक पररवार संयुि था
और इसमें काउस्टर (आउस्टर) कब्जा मुखालकाना की कोई सम्भावना
नहीं थी। अपीलकताा का अनुसार दशविीन दसंह की मृत्यु 1952 में हुयी
और 1852 की रेहनामा है सम्भवतया इसी रेहननामें के आिार पर पंदडतों
ने कब्जा दकया और उनसे कब्जा वाि में वावत दलया गया अस्तु जगपाल
दसंह का यह कहना दक दशव िीन दसंह की दजन्िगी में ही आउस्टर
(आवस्टर) से कब्जा ले दलया था दवश्वसनीय प्रतीत नहीं होता। ऐसा कोई
केस नहीं है दक दशविीन से जगपाल दसह ने वावत दलया अस्तु आस्टर को
प्ल ( प्लीऐ) दसद्ध नहीं की जा सकती है जगपाल दसंह और मुखालफाना
कब्जा यह आउस्टर नहीं दकया जा सकता। अस्तु मातहत अिालत ने यह
सही घोदषत दकया है दक दशविीन दसंह की मृत्यु पर उसका भान्जा छोटे
दसंह वाररस हैं मै मातहत अिालत के तकों एवं दनष्कषों से सहमत ह ूँ अस्तु
अपील दनरािार है और खाररज की जाती है।"

7. In the aforesaid circumstances, the
petitioner approached Board of Revenue by
way of filing a Second Appeal interalia on
various grounds. For reference relevant grounds
are mentioned hereinafter:-

 "3. Because the execution of will
cannot be proved unless attesting witnesses are
examined. Neither the attesting witnesses were
examined not the scribed was produced.
 4. Because the finding of the learned
court below are perverse as the same are based
upon inadmissible and unproved evidence on
record. The finding cannot be given on the basis
of will unless the same was proved. The will is
inadmissible in evidence unless it has been
proved.
 6.
Because
the
learned
lower
appellate court has erred in setting up a new
case of joint Hindu-family which was not
pleaded by any party to the case. The learned
appellate court had held that the family of
Jagpal Singh and Shiv-Din was joint. It is no
body"TMs case and the learned appellate court
cannot travel beyond the pleadings of the
parties. The defendant appellant has also taken
specific plea that Jagpal Singh ousted Shiv-Din
and remained in possession exclusively for the
last more-than 20 years. The learned appellate
court has erred in holding that no case was
pleaded by the appellant that Jagpal ousted
Shiv-Din. The court below has misread the
pleading of the parties."

8. The Board of Revenue by an order
dated 24.11.1981 dismissed the Second Appeal
and upheld the findings returned by the Trial
Court as well as of the Appellate Court. The
relevant part of the order dated 24.11.1981 is
reproduced hereinafter:-

 "4. I have gone through the record
of the case and have also heard the arguments
of the learned counsels for the parties.
 5. The learned counsel for the
appellant has argued that plot no.509 was not
agricultural land and the learned lower courts
had no jurisdiction to decide about it and as
such the proceedings of the trial court was
vitiated. He has cited various rulings to prove
his contention. Regarding merits of the case he
has argued that the plaintiff was the sister's son
but the execution has been denied because will
has not been proved and that the mere
registration does not validate the will as has
been held in various rilings. The latest ruling
referred A.I.R. 1977 page 77. He has further
argued that the Additional Commissioner could
not upset the joint family case as has been held
in 1977 Supreme Court A.I.R. page 2262 that
mortgage take place during the life time of the
deceased and that the oral evidence has not
been touched by the lower appellate court.
 6. In reply, the learned counsel for
the respondent has argued that the survey
commissioner whose report is on record found
the construction on plot no.599. Moreover, no
such plea was taken before the learned
Additional Commissioner and the learned
counsel for the appellant is barred to raise this
plea before this court, and that the mutation
proceedings were dropped because of the
consolidation and the mutation was ordered on
the basis of possession alone but at the same
time the respondent was accepted the real
sister's son. That the marginal witnesses of the
will have died and that adverse possession took
place and that son of Sheo Kala was Puran
Singh and that is not the son of the sister of
Sheodin. The record of the case shows that the
appellant had not raised the pleas regarding the
suit being barred on account of consolidation
proceedings in the village and not framing of
the issue as such these two pleas cannot be
12 All. Bhagwan Bux Singh Vs. Board of Revenue, U.P. Allahabad & Ors.
273
raised at this stage and are therefore not being
considered. As regards the validity of the will it
is a finding of fact and both the trial court as
well as the lower appellate court have arrived
at the conclusion after careful consideration
and shifting of the evidence on record. I also
find that the learned Additional Commissioner
has not decided the case on the basis of the fact
that the family was joint Hindu family. The
argument of the learned counsel for the
appellant on this point looses its impact in view
of the fact that the learned Additional
Commissioner has mentioned in passing while
discussing the proximity of the defendantrespondent with the deceased contenure holder.
It therefore, does not attract the application of
the ruling cited by him on this point. The
learned
Additional
Commissioner
has
considered all the points raised in the appeal
and has applied his mind before arriving at the
conclusion. In view of the above it does not
appear that the learned lower appellate court
has commited any mistake or error which would
warrant into reference in the second appeal."

9. In the aforesaid circumstances, the
petitioner approach this Court and filed the
present writ petition in the year 1981 wherein
all the above referred orders were impugned.
This Court by order dated 23.12.1981 passed an
interim order that the entries in favour of the
petitioner may not be disturbed and the said
stay order was confirmed by an order dated
13.10.1982 which remained in currency.

10. Mr. Rohit Verma, learned
counsel
appearing
on
behalf
of
the
petitioner vehemently submitted that the
learned Trial Court has not decided the
issue in regard to proof of Will in terms of
relevant provisions of the Evidence Act.
The attesting witnesses and scriber of the
Will were not examined and accordingly
the Will was not proved in terms of the
legal procedure.

11. Learned counsel also referred the
above referred grounds taken in the memo of
Second Appeal as well as following grounds
referred in present Writ Petition:-
 "(D) Because the execution of will
cannot be proved unless attesting witness or
examined. Chhotey Singh respondent no.4
neither produced attesting witnesses nor
produced the scriber of alleged will.
 (E) Because the respondent no.1, 2
and 3 have given perverse finding as the same
relied-upon
in
admissible
and
unproved
evidence on record. The will is in-admissible in
evidence unless it has been proved.
 (F) Because a very heavy onus lay
upon the person setting up the will and strict
proof is required to prove the execution of the
will but the respondent no.1, 2 and 3 did not
comply the provisions of law.
 (G) Because the respondent nos.l, 2
and 3 have erred in setting-up a new case of
joint Hindu family which was not pleaded by
any party to the case. It was specific plea of the
petitioner that Jaspal Singh (father of the
petitioner ousted Sheo-Deen Singh deceased
and remained in possession exclusively and
adversely for the last more than 25 years. The
respondent no.1, 2 and 3 misread the pleadings
of the petitioner."

12. Learned counsel, in support of his
submissions, placed reliance on judgements
passed by this Court in Gaon Sabha Vs. B.R.,
2024:AHC16953,
Dr.
Jeevan
Bahadur
Samaddar Vs. Govind Charan Samaddar and
others, dated 30.05.2013 (Second Appeal No.
234 of 2010) and by Supreme Court in Santosh
Hazari Vs. Purushottam Tiwari, 2001 LawSuit
(SC) 237 and H. Venkatachala Iyengar Vs. B.N.
Thimmajamma and Ors. AIR 1959 SC 443.

13. Per contra, Mr. Jai Raj learned
counsel for contesting respondent refers the
findings returned by the Trial Court and
affirmed by the Appellate Court as well as
Board of Revenue that since they are not
perverse findings, therefore, the same may not
be interfered in the writ jurisdiction.

14. Heard the counsel for the parties
and perused the record.

15. Before adverting to the rival
submissions a recent judgement passed by the
274 INDIAN LAW REPORTS ALLAHABAD SERIES
Supreme Court, on the issue of proof of Will, in
case of Meena Pradhan & Ors. Vs. Kamla
Pradhan & Anr. 2023 INSC 847 is relevant and
its Paragraph Nos. 7 to 11 are mentioned
hereinafter:-

 "7. Before delving into the facts of
the case, it is pertinent to reproduce the
relevant provisions dealing with the validity
and execution of the Will.
 "Section 63 of the Indian Succession
Act, 1925 Execution of unprivileged willsÂ
Every testator, not being a soldier employed in
an expedition or engaged in actual warfare, or
an airman so employed or engaged, or a
mariner at sea, shall execute his Will according
to the following rules:Â
 (a) The testator shall sign or shall
affix his mark to the Will, or it shall be signed
by some other person in his presence and by his
direction.
 (b) The signature or mark of the
testator, or the signature of the person signing
for him, shall be so placed that it shall appear
that it was intended thereby to give effect to the
writing as a Will.
 (c) The Will shall be attested by two
or more witnesses, each of whom has seen the
testator sign or affix his mark to the Will or has
seen some other person sign the Will, in the
presence and by the direction of the testator, or
has received from the testator a personal
acknowledgement of his signature or mark, or
the signature of such other person; and each of
the witnesses shall sign the Will in the presence
of the testator, but it shall not be necessary that
more than one witness be present at the same
time, and no particular form of attestation shall
be necessary.
 Section 68 of Indian Evidence Act
1872
 Proof of Execution of document
required by law to be attested If a document is
required by law to be attested, it shall not be
used as evidence until one attesting witness at
least has been called for the purpose of proving
its execution, if there be an attesting witness
alive, and subject to the process of the Court
and capable of giving evidence: xxx"
 8. Thus, a bare reading of the
aboveÂmentioned provisions would show that
the requirements enshrined under Section 63 of
the Succession Act have to be categorially
complied with for the 4Â CIVIL APPEAL
NO.3351 OF 2014 execution of the Will to be
proven in terms of Section 68 of the Evidence
Act.
 9. A Will is an instrument of
testamentary disposition of property. It is a
legally acknowledged mode of bequeathing a
testator"TMs property during his lifetime to be
acted upon on his/her death and carries with it
an element of sanctity. It speaks from the death
of the testator. Since the testator/testatrix, at the
time of testing the document for its validity,
would not be available for deposing as to the
circumstances in which the Will came to be
executed, stringent requisites for the proof
thereof have been statutorily enjoined to rule
out the possibility of any manipulation.
 10. Relying on H. Venkatachala
Iyengar v. B.N. Thimmajamma, 1959 Supp (1)
SCR 426 (3ÂJudge Bench), Bhagwan Kaur v.
Kartar Kaur, (1994) 5 SCC 135 (3ÂJudge
Bench), Janki Narayan Bhoir v. Narayan
Namdeo Kadam, (2003) 2 SCC 91(2ÂJudge
Bench) Yumnam Ongbi Tampha Ibema Devi v.
Yumnam Joykumar Singh, (2009) 4 SCC 780
(3ÂJudge
Bench)
and
Shivakumar
v.
Sharanabasappa, (2021) 11 SCC 277 (3ÂJudge
Bench), we can deduce/infer the following
principles required for proving the validity and
execution of the Will:
 i. The court has to consider two
aspects: firstly, that the Will is executed by the
testator, and secondly, that it was the last Will
executed by him;
 ii. It is not required to be proved
with mathematical accuracy, but the test of
satisfaction of the prudent mind has to be
applied.
 iii. A Will is required to fulfil all the
formalities required under Section 63 of the
Succession Act, that is to say:
 (a) 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 the said signature or affixation
12 All. Bhagwan Bux Singh Vs. Board of Revenue, U.P. Allahabad & Ors.
275
shall show that it was intended to give effect to
the writing as a Will;
 (b) It is mandatory to get it attested
by two or more witnesses, though no particular
form of attestation is necessary;
 (c) Each of the attesting witnesses
must have seen the testator sign or affix his
mark to the Will or has seen some other
person sign the Will, in the presence and by
the direction of the testator, or has received
from the testator a personal acknowledgment
of such signatures;
 (d) Each of the attesting witnesses
shall sign the Will in the presence of the
testator, however, the presence of all witnesses
at the same time is not required;
 iv. For the purpose of proving the
execution of the Will, at least one of the
attesting witnesses, who is alive, subject to the
process of court, and capable of giving
evidence, shall be examined;
 v. The attesting witness should
speak
not
only
about
the
testator"TMs
signatures but also that each of the witnesses
had signed the will in the presence of the
testator;
 vi. If one attesting witness can prove
the execution of the Will, the examination of
other attesting witnesses can be dispensed
with;
 vii. Where one attesting witness
examined to prove the Will fails to prove its
due execution, then the other available
attesting
witness
has
to
be
called
to
supplement his evidence;
 viii. Whenever there exists any
suspicion as to the execution of the Will, it is
the responsibility of the propounder to remove
all legitimate suspicions before it can be
accepted as the testator's last Will. In such
cases, the initial onus on the propounder
becomes heavier.
 ix. The test of judicial conscience
has been evolved for dealing with those cases
where the execution of the Will is surrounded
by suspicious circumstances. It requires to
consider factors such as awareness of the
testator as to the content as well as the
consequences, nature and effect of the
dispositions in the Will; sound, certain and
disposing state of mind and memory of the
testator at the time of execution; testator
executed the Will while acting on his own free
Will;
 x.
One
who
alleges
fraud,
fabrication, undue influence et cetera has to
prove the same. However, even in the absence
of such allegations, if there are circumstances
giving rise to doubt, then it becomes the duty
of the propounder to dispel such suspicious
circumstances by giving a cogent and
convincing explanation.
 xi. Suspicious circumstances must
be " ̃real, germane and valid"TM and not
merely " ̃the fantasy of the doubting mind"TM
1. Whether a particular feature would qualify
as " ̃suspicious"TM would depend on the facts
and
circumstances
of
each
case.
Any
circumstance raising suspicion legitimate in
nature
would
qualify
as
a
suspicious
circumstance for example, 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, etc.
 11. In short, apart from statutory
compliance, broadly it has to be proved that (a)
the testator signed the Will out of his own free
Will, (b) at the time of execution he had a
sound state of mind, (c) he was aware of the
nature and effect thereof and (d) the Will was
not
executed
under
any
suspicious
circumstances."

16. In the present case there are
concurrent findings of three Revenue Courts
that the Will was proved and there was no
suspicious circumstances.

17. It is well settled that in order to
disturb concurrent findings there must be
material that the concurrent findings were
absolutely perverse or a well settled principle of
law was not followed.

18. As referred above, the learned Trial
Court decided the issue on basis of statement of
PW-1 Ranjeet Singh brother of Brijlal (since
deceased) a marginal witness to Will and he
proved signatures of his brother. The other
276 INDIAN LAW REPORTS ALLAHABAD SERIES
marginal witness was not examined as well as
scriber was also not examined.

19. The learned Trial Court held that
the contesting respondent no. 4/ plaintiff was
son of real sister of Sheodin Singh, and that the
defendants/petitioner has failed to prove that the
Will was fictitious. It was also held that
Sheodin Singh, was empowered to execute the
Will. His right on basis of inheritance was also
accepted.

20. From the bare perusal of the
reasons assigned by learned Trial Court, it
appears that the above referred principles, to
prove a Will, were not followed. It is not on
record that other attesting witness was not able
to come forward and since he was not produced,
therefore, there was no evidence that the
attesting witness has seen the testator signed his
mark to Will as well as that he has seen other
persons also to sign on the Will in his presence.

21. In this regard the Court also takes
note of statement of Chhotey Singh, the
plaintiff, however, he himself has not stated
about details of attesting witnesses and scriber.
So far as other witness is concerned, i.e. Ranjit
Kumar, he can only prove signature of his
brother (since deceased), one of the attesting
witnesses. In these circumstances, it was
mandatory to examine other attesting witnesses
to prove the Will in accordance with law. It was
not the case that other attesting witness was not
alive.

22. The Court also perused order
passed by the Appellate Court. The Appellate
Court gave more emphasis that the Will was a
registered document as well as whether the
testator was empowered to execute the Will or
not. The Appellate Court has not considered the
requisite procedure to prove a Will i.e. whether
the attesting witnesses were examined or not
and the consequence of their non examination.

23. The Court further perused specific
grounds taken by the petitioners in the memo of
second appeal, that execution of Will can not be
proved unless attesting witnesses are examined
and in the present case neither one alive
attesting witness nor scriber was examined.

24. The Court also perused the order
passed by the Board of Revenue in the Second
Appeal that the above referred grounds was not
even considered and without returning a finding
about effect of non-examination of attesting
witnesses (alive) and scriber, dismissed the
second appeal returning a very short finding.
The Board of Revenue has not applied mind
whether any question of law was involved or
not.

25. In the aforesaid circumstances the
Court is of considered opinion that the position
of law, so far as proof of Will is well settled and
is being retreated in Meena Pradhan & Ors.
(Supra) also that a Will has to be proved in
terms of Section 63 Indian Succession Act,
1925 and Section 68 of Indian Evidence Act,
1872.

26. As referred above, Section 63 of
Indian Succession Act, 1925 contemplates
certain formalities that it was mandatory to get
the Will attested by two or more witnesses and
in order to prove the Will under Section 68 of
Indian Evidence Act, 1872, that at least one
attesting witness has to come forward to prove
the Will.

27. As referred above, in the present
case, one of the attesting witnesses has died,
before the suit was filed, however, it is not on
record whether other attesting witness was alive
or not and since there is no finding that he was
dead, it is, therefore, presumed that he was
alive, however, the plaintiff has neither
produced him nor scriber was produced.
Therefore, the Will cannot be considered to be
proved in terms of above referred provisions, as
well as in terms of Meena Pradhan (supra).

28. In the aforesaid circumstances the
Court is of considered opinion that there was a
question of law involved before the Board of
Revenue that the orders passed by the Trial
Court and the Appellate Court were contrary to
the law and that Will was not proved in
12 All. Ajay Pratap Singh & Ors. Vs. Board of Revenue, U.P. Allahabad & Ors.
277
accordance with law, however, the
Board of Revenue has failed to consider it.

29. In the aforesaid circumstances the
Court can remand the matter to the Board of
Revenue to decide the Second Appeal afresh,
after framing question of law, however, the
Court takes note that this writ is pending since
1981 i.e. for about more than four decades,
therefore, to remand the matter at this stage
would not be in the interest of justice.

30. In the aforesaid circumstances the
Court is of considered opinion that it is a fit
case where an interference could be caused in
the concurrent findings of three Revenue
Courts, since they are perverse and finding
returned that the Will was proved was contrary
to establish and settled law to prove a Will.

31. The evidence produced by the
plaintiff/respondent no. 4 was not sufficient to
prove the Will, therefore, the findings returned
by the Trial Court/ Appellate Court as well as
Board of Revenue are perverse and contrary to
law and therefore an interference is caused and
accordingly all the impugned judgements are
set aside, the suit filed by plaintiff/respondent
no. 4 is dismissed and its legal consequence
Will follow.

32. With aforesaid observations, this
writ petition is disposed of.
----------
(2024) 12 ILRA 277
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.12.2024

BEFORE

THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ B No. 54851 of 2017

Ajay Pratap Singh & Ors. ...Petitioners
Versus
Board of Revenue, U.P. Allahabad & Ors.
 ...Respondents
Counsel for the Petitioners:
Anand Kapoor Pandey, Lalji Chaudhary

Counsel for the Respondents:
Ashok Kumar Singh, C.S.C., Durga Charan
Singh Yadav, Manoj Kumar Yadav, Smt.
Rekhta Singh

Civil Law - Revenue Law - U.P. Zamindari
Abolition and Land Reforms Act, 1950 -
Section 229-B - U.P. Consolidation of
Holdings Act, 1953
- Section 49-
Declaration suit filed before Revenue
Court after consolidation proceedingswhether the suit is barred by Section 49 of
the 1953 Act- Nature and scope -
Complete bar on institution of suit or
proceedings
in
respect
of
rights
or
interests adjudicated or ought to have
been raised during consolidation -Courts
correctly dismissed claim - No error
found-mixed question of fact and lawpetition dismissed. (Paras 11 to 14)
HELD:
I have considered the above submission and
perused the record. In order to consider the
rival submissions, it would be relevant to
consider a judgment passed by Supreme Court
in Satyanath & anr. Vs Sarojamani, 2022 (7) SCC
644, wherein it has been held that "preliminary
issues can be those where no evidence required
and on basis of reading of plaint or applicable
law, if jurisdiction of the Court or bar to suit is
made out, the Court may decide the such issues
with sole objective of expeditious decision,
however, in case where issues both of law and
of fact arise in the same suit, and the Court is of
opinion that the case or any part thereof may be
disposed of on the issues of law only, it shall try
those issues first, and for that purpose may, if it
thinks fit, postpone the settlement of the issues
of fact until after the issues of law have been
determined". (para 11)

In the present case, whether the suit was
barred by Section 49 of U.P. Consolidation of
Holdings Act was a mixed question of law and
fact, since in order to consider whether the
interest of petitioner (admittedly, a minor at that
time) was taken note by her mother during
proceedings under Consolidation Act or not and
for that the said material i.e. fact has to be