# Bhrigurasan & Ors v. Deputy Director of Consolidation, Kushinagar & Ors

- **Citation:** (2020) 6 ILRA 235
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-06-11
- **Case number:** Writ-B No. 26978 of 2013
- **Bench:** Salil Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhrigurasan-ors-v-deputy-director-of-consolidation-kushinagar-ors-45785
- **Pages:** 14

## Headnote

A. Civil Law - Primary and Secondary
Evidences - Uttar Pradesh Consolidation of
Holdings Act, 1953: Section 9-A(2), 4(2) -
Uttar Pradesh Zamindari Abolition and
Land
Reforms
Act,
1950:
Section
171(2)(h), 172(2)(b) read with 171- Uttar
Pradesh Tenancy Act, 1939 - Indian
Evidence Act 1872: Section 90 - If both
primary and secondary evidences are on
record and there is a conflict between the
contents of the two, the contents of the
primary evidence, i.e., the original, are to
be accepted. The certified copy loses its
evidentiary value if it does not correctly
reflect the contents of the original. The
certified copy and its contents are by
themselves
not
an
evidence
of
any
tampering or forgery in the original if the
contents of the original are different from
the contents of the certified copy. The
alleged tampering or manipulation in the
original has to be proved by other
evidence. (Para 18)

The Court observed that the S.O.C and the D.D.C.
in their impugned orders have noted that a mere
dot in Persian Script can change the word itself,
and have, therefore concluded that the original
register have been tampered and entries in the
original have been changed. The aforesaid opinion
is a mere surmise as no linguistic expert was called
by the respondent no. 3 or the consolidation
courts to verify the aforesaid fact. The Court
further analyzed the Persian Script of the words
'Keoyri' and 'Lohar' and it is apparent that the
script of the two words is totally different and a
mere dot would not change the word itself. The
way 'Keoyri' is written in the Persian Script is
totally different from the way 'Lohar' is written in
the Persian Script and it cannot be said that a
mere addition of dot in the word 'Lohar' would
change it to the word 'Keoyri'. (Para 19)

B. Probative Value - Will - Indian Evidence
Act, 1872: Section 32(5), 32(6), 68 - 'Void'
and 'non-est' are two different concepts.

The concept of void refers to the enforceability of
a contract/document/transaction and when a
contract or a document is referred as void it
implies that the same is not legally enforceable.
'Non-est' means 'non-existent' and is used to deny
the execution of the document itself. A void
document is not necessarily 'non-est'. It is only an
existing document which a party can plead to be
'void'. If a document is void then it cannot be sued
upon and enforced but the aforesaid does not
mean that other legal consequences of the
document shall not follow. (Para 23)

Even if the Will dated 29.03.1946 is not
enforceable for being void or may not be relevant
under Section 32(6) of the Act of 1872 as Will it
would still be admissible and relevant recital in the
Will is a statement in writing of the deceased and
relates to the existence of a relationship by blood
about which the testator had special means of
236 INDIAN LAW REPORTS ALLAHABAD SERIES
knowledge as a husband of Shivraj. The statement
is obviously ante litem motam i.e., made before
any dispute regarding the succession to the estate
of the testator started between the parties. The
recitals of the Will was a material evidence which
was not considered by the appellate and revisional
courts. (Para 26, 27)

Writ Petition allowed. (E-10)

List of cases cited:-

## Text

_Characters 0–39,989 of 50,653. This is a partial read: ask again with offset=39989 for what follows._

6 All. Bhrigusaran & Ors. Vs. Deputy Director of Consolidation, Kushinagar & Ors.
235
Appeal Nos. 151, 152 and 153 of 198990 passed by the Board of Revenue,
U.P. at Allahabad are hereby set aside
and judgments and decrees of the
Additional
Commissioner,
Jhansi
Division, Jhansi dated 24th April, 1990,
passed in Appeal No. 90/6/1986-87,
91/7/1986-87 and 92/8/1986-87 stand
restored.
----------
(2020)06ILR A235
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.06.2020

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.

Writ-B No. 26978 of 2013

Bhrigurasan & Ors. ...Petitioners
Versus
Deputy
Director
of
Consolidation,
Kushinagar & Ors ...Respondents

Counsel for the Petitioners:
Sri Arun Srivastava, Sri Nagendra Nath
Mishra, Sri Naveen Srivastava, Sri P.M.
Tripathi, Sri Sanjeev Singh

Counsel for the Respondents:
C.S.C., Sri R.K. Shahi, Sri Siddharth
Nandan, Sri Sita Ram Vishwakarma, Sri
T.P. Singh

A. Civil Law - Primary and Secondary
Evidences - Uttar Pradesh Consolidation of
Holdings Act, 1953: Section 9-A(2), 4(2) -
Uttar Pradesh Zamindari Abolition and
Land
Reforms
Act,
1950:
Section
171(2)(h), 172(2)(b) read with 171- Uttar
Pradesh Tenancy Act, 1939 - Indian
Evidence Act 1872: Section 90 - If both
primary and secondary evidences are on
record and there is a conflict between the
contents of the two, the contents of the
primary evidence, i.e., the original, are to
be accepted. The certified copy loses its
evidentiary value if it does not correctly
reflect the contents of the original. The
certified copy and its contents are by
themselves
not
an
evidence
of
any
tampering or forgery in the original if the
contents of the original are different from
the contents of the certified copy. The
alleged tampering or manipulation in the
original has to be proved by other
evidence. (Para 18)

The Court observed that the S.O.C and the D.D.C.
in their impugned orders have noted that a mere
dot in Persian Script can change the word itself,
and have, therefore concluded that the original
register have been tampered and entries in the
original have been changed. The aforesaid opinion
is a mere surmise as no linguistic expert was called
by the respondent no. 3 or the consolidation
courts to verify the aforesaid fact. The Court
further analyzed the Persian Script of the words
'Keoyri' and 'Lohar' and it is apparent that the
script of the two words is totally different and a
mere dot would not change the word itself. The
way 'Keoyri' is written in the Persian Script is
totally different from the way 'Lohar' is written in
the Persian Script and it cannot be said that a
mere addition of dot in the word 'Lohar' would
change it to the word 'Keoyri'. (Para 19)

B. Probative Value - Will - Indian Evidence
Act, 1872: Section 32(5), 32(6), 68 - 'Void'
and 'non-est' are two different concepts.

The concept of void refers to the enforceability of
a contract/document/transaction and when a
contract or a document is referred as void it
implies that the same is not legally enforceable.
'Non-est' means 'non-existent' and is used to deny
the execution of the document itself. A void
document is not necessarily 'non-est'. It is only an
existing document which a party can plead to be
'void'. If a document is void then it cannot be sued
upon and enforced but the aforesaid does not
mean that other legal consequences of the
document shall not follow. (Para 23)

Even if the Will dated 29.03.1946 is not
enforceable for being void or may not be relevant
under Section 32(6) of the Act of 1872 as Will it
would still be admissible and relevant recital in the
Will is a statement in writing of the deceased and
relates to the existence of a relationship by blood
about which the testator had special means of
236 INDIAN LAW REPORTS ALLAHABAD SERIES
knowledge as a husband of Shivraj. The statement
is obviously ante litem motam i.e., made before
any dispute regarding the succession to the estate
of the testator started between the parties. The
recitals of the Will was a material evidence which
was not considered by the appellate and revisional
courts. (Para 26, 27)

Writ Petition allowed. (E-10)

List of cases cited:-

1. State of Bihar Vs. Radha Krishna Singh AIR
1983 SC 683

2. M Vs. Board of Revenue 1962 RD (1) (H.C.)

3. Ram Prasad Sharma Vs. State of Bihar AIR 1970
SC 326

4. Madhuri Devi & Anr. Vs. Board of Revenue, U.P.
at Lucknow & ors. 2011 (114) RD 465

5. Sebastiao Luis Fernandes Vs. K.V.P. Shashtri
2014 AIR SCW 155

6. Anil Rishi Vs. Gurbaksh Singh AIR 2006 SC
1971

7. Vinod Kumar Dhall Vs. Dharampal Dhall &
ors. AIR 2018 SC 3470

8. Prem Sigh & ors Vs. Birbal & ors 2006 (5)
SCC 353 (followed)

9. Ibrahim Khan Vs. Additional Collector
(Administration) Lucknow & ors. 2016 (131) RD
161 (followed)

10. Suzuki Parasrampuria Suitings Pvt. Ltd. Vs.
Official Liquidator of Mahendra Petrochemicals
Ltd. & ors. AIR 2018 SC 4769

11. Kalpesh Hematbhai Shah Vs. Manhar Auto
Stores & ors. 2014 AIR SCW 1959

12.
State
of
U.P.
&
ors.
Vs.
Maharaj
Dharmander Prasad Singh AIR 1989 SC 997

13. Mahadeo Prasad Vs. Ghulam Mohammad
AIR 1947 ALL 161 (followed)

14. Ft. Shyam Lal Vs. Lakshmi Narain AIR 1939
ALL 269

(Delivered by Hon'ble Salil Kumar Rai, J.)

1. Heard Shri Sanjeev Singh, learned
counsel for the petitioners, Shri T.P. Singh,
Senior Counsel, assisted by Shri Siddharth
Nandan, Advocate, representing respondent no.
3
and
the
learned
Standing
Counsel,
representing respondent Nos. 1 and 2. The
counsel for the parties have also filed their
written arguments which are part of record.

2. The present writ petition arises from
proceedings registered under Section 9-A(2)
of the Uttar Pradesh Consolidation of
Holdings Act, 1953 (hereinafter referred to
as, 'Act, 1953'). The plots in dispute in the
consolidation proceedings and in the present
writ petition are Plot Nos. 448/2, 381/2, 447/1
and 396/1 (hereinafter referred to as,
'disputed plots') included in Khata Nos. 59
and 116 and situated in Village-Singaha,
District-Kushinagar
(previously
DistrictDeoria). One Gaya, son of Parag, was the
original tenure holder of the disputed plots.
Shivraji was the widow of Gaya. Munia was
the daughter of Gaya and Shivraji. Petitioners
are the sons of Munia. Gaya belonged to the
Lohar community. Gaya died before the date
of vesting as defined in Uttar Pradesh
Zamindari Abolition and Land Reforms Act,
1950 (hereinafter referred to as, 'Act, 1950'),
and in the revenue records of 1359 Fasli and
1379 Fasli Shivraji was recorded as tenant of
the disputed plots. After the death of Shivraji,
the petitioners were recorded as tenants of the
disputed plots and continued to be recorded
as such in the basic year records of the
village, i.e., the records available on the date
the notification under Section 4(2) of the Act,
1953 was published notifying the village
under consolidation operations.
6 All. Bhrigusaran & Ors. Vs. Deputy Director of Consolidation, Kushinagar & Ors.
237

3.

During
the
consolidation
operations, the respondent no. 3 filed
objections against the entries in the basic
year records claiming himself to be the sole
tenant of the disputed plots. On the
objections of respondent no. 3, Case no.
1016 under Section 9-A(2) of the Act, 1953
was registered before the Consolidation
Officer, Hata at Kasya, District-Deoria
(hereinafter referred to as, 'C.O.'). The case
set up by respondent no. 3 was that Gaya
and Shivraji had two sons, namely Thakur
and Pheku, and respondent no. 3 was the
son of Thakur. Thakur died before Gaya. It
was the case of respondent no. 3 that Pheku
had died issueless, therefore, the share of
Pheku also devolved on respondent no. 3.

4. The petitioners contested the.case
set up by respondent no. 3. The petitioners
denied that Thakur and Pheku were the
sons of Gaya or that respondent no. 3 was
the grandson of Gaya. However, the
petitioners admitted that Thakur and Pheku
were the sons of Shivraji. The case of the
petitioners was that Gaya had only one
daughter namely Munia, and the petitioners
were the sons of Munia. The petitioners
alleged that, before her marriage with
Gaya, Shivraji was married to one Budhai,
resident of Village-Khairatiya and Thakur
and Pheku were the sons of Budhai. The
petitioners alleged that Thakur and Pheku
came with Shivraji after her marriage to
Gaya. On their aforesaid pleadings, the
petitioners claimed to be the tenants of the
disputed plots under Section 171(2)(h) of
the Act, 1950 because they were the sons of
the daughter of Gaya. In the alternative, the
petitioners also alleged that before his
death, Gaya had executed a registered Will
dated 29.3.1946 bequeathing his entire
property, including the disputed plots, in
favour of petitioner no. 1. On the aforesaid
pleadings, the petitioners prayed that the
objections of respondent no. 3 be rejected
and the entries in the basic year records be
retained.

5. In order to decide the dispute as
who was the heir of Gaya and consequently
the tenant of the disputed plots, the C.O.
framed issues relating to the validity of the
Will dated 29.3.1946 and correctness of the
rival pedigrees pleaded by the parties.
Before the C.O., respondent no. 3 filed
certified copies of the extracts of birth
register of 1916 and 1928 and certified
copy of the death certificate of 1943 to
prove that Thakur was the son of Gaya. The
certified copies of the extracts of birth
registers of 1916 and 1928 indicated that
sons were born to Gaya in the said years
and the death certificate indicated that one
Thakur, son of Gaya had died in the
aforesaid year. The petitioners, in support
of their case, filed a copy of the Will dated
29.3.1946, family register of VillageSingaha and a copy of the birth register of
birth for the year 1918 and 1916 to show
that Thakur, referred by respondent no. 3,
was not the son of Gaya Lohar, but was the
son of one Gaya Koeyri. The Will dated
29.3.1946 contains a recital allegedly made
by Gaya that he had no son but only one
daughter namely Munia, who had one son
named
Bhrigurasan.
Bhrigurasan
is
petitioner no. 1 in the present writ petition.
Apart from the aforesaid evidence filed by
the parties, the C.O. also summoned the
original birth register of 1916, a perusal of
which revealed that the entry in the original
birth register related to Gaya Koeri and not
Gaya Lohar and the certified copy filed by
respondent no. 3 did not correctly reflect
the contents of the original. Other evidence
were also filed by the parties to prove their
respective cases, but I am not referring to
them as they are not relevant for a decision
of the present writ petition and in view of
238 INDIAN LAW REPORTS ALLAHABAD SERIES
the final orders proposed to be passed in
the present writ petitions. It is also relevant
to note that before the C.O., the respondent
no. 3 admitted in his cross-examination that
Munia was the daughter of Gaya and the
petitioners were the sons of Munia.

6. The C.O. vide his order dated
31.12.1984 dismissed the objections filed
by respondent no. 3 and held the petitioners
to be the tenure holders of the disputed
plots with 1/3 share each. The C.O. rejected
the certified copy of birth register of 1916
filed by respondent no. 3 because a perusal
of the original birth register showed that a
son was born to Gaya Koeri and not to
Gaya Lohar who was the original tenure
holder of the disputed plots. The certified
copy of the birth register of birth for the
year 1927-28 filed by respondent no. 3
showed that a son was born to Gaya Lohar
but the evidence was rejected by the C.O.
on the ground that it was inconsistent with
the case of respondent no. 3 that Gaya had
two sons namely Thakur and Pheku. The
Will dated 29.3.1946 pleaded by the
petitioners was also rejected by the C.O. on
the ground that under the Uttar Pradesh
Tenancy Act, 1939 (hereinafter referred to
as, 'Act, 1939') Gaya had no right to
transfer the disputed plots and, therefore,
the Will was not enforceable. However,
while accepting the case of the petitioners,
the C.O. relied on the recital in the Will
wherein Gaya had allegedly stated that he
had no son, but only one daughter Munia,
who had one son Bhrigurasan (the
petitioner no. 1). The C.O. held the Will to
be proved in light of Section 90 of the
Indian Evidence Act, 1872 (hereinafter
referred to as, 'Act, 1872'). Consequently,
the C.O. held that the respondent no. 3 had
not been able to prove that Thakur and
Pheku were the sons of Gaya. The C.O.
further held that after the death of Gaya,
Shivraji, being the widow of Gaya, became
the tenant of the disputed plots and after
her death, succession had to be determined
in accordance with Section 172(2)(b) read
with Section 171 of the Act, 1950, and the
petitioners being the sons of Munia, the
daughter of Gaya, were the heirs and
successors of Gaya and thus the tenants of
the disputed plots under Section 171(2)(h)
of the Act, 1950.

7. Against the order dated 31.12.1984,
the respondent no. 3 filed Appeal no. 0839
under Section 11 of the Act, 1953, which
was allowed by the Settlement Officer of
Consolidation, Kasya, District-Kushinagar,
i.e., respondent no. 2 (hereinafter referred
to as, 'S.O.C.') vide his judgment and order
dated 28.2.2003. Against the judgement
and order dated 28.2.2003 passed by the
S.O.C., the petitioners filed Revision no.
157/161 under Section 48 of the Act, 1953,
which was dismissed by the Deputy
Director of Consolidation, Kushinagar, i.e.,
respondent no. 1 (hereinafter referred to as,
'D.D.C.') vide her judgement and order
dated 30.4.2013. In their judgement and
orders dated 28.2.2003 and 30.4.2013, the
S.O.C. and the D.D.C. held that the original
birth register of 1916 had been tampered by
changing the word 'Lohar' to 'Koeri', after
the certified copy of its extract was issued
to respondent no. 3 and the certified copy
of the extract of birth register filed by
respondent no. 3 proved the case of
respondent no. 3 that a son was born to
Gaya who was the original tenure holder of
the disputed plots. The S.O.C. and the
D.D.C. reasoned that the entries in the birth
register were in 'Urdu' language and
transcribed in the Persian Script where
even a dot could change the alphabets and
consequently the word itself. The S.O.C.
and the D.D.C. also relied on the death
certificate filed by respondent no. 3 which
6 All. Bhrigusaran & Ors. Vs. Deputy Director of Consolidation, Kushinagar & Ors.
239
showed that Thakur had died in 1943 and
indicated that he was the son of Gaya. The
S.O.C. and the D.D.C. reasoned that as the
petitioners had admitted the marriage of
Shivraji and Gaya and also that Thakur and
Pheku were the sons of Sjivraji, therefore,
the burden to prove that Thakur and Pheku
were not the sons of Gaya but the sons of
Budhai was on the petitioners and the
petitioners had failed to prove the same.
The S.O.C. and the D.D.C. rejected the
Will dated 29.3.1946 on the ground that it
was void. The S.O.C. and the D.D.C. held
that it was proved from evidence that
Thakur and Pheku were the sons of Gaya
Lohar and respondent no. 3 was the son of
Thakur and, therefore, respondent no. 3
was entitled to succeed to the estate of
Gaya. On their aforesaid reasoning, the
S.O.C. set aside the order dated 31.12.1984
passed by the C.O. and the revision filed by
the petitioners was rejected by the D.D.C.
The orders dated 30.4.2013 and 28.2.2003
passed by the D.D.C. and the S.O.C. have
been challenged in the present writ petition.

8. Before proceeding further, it would
be relevant to note that the petitioners have
filed a supplementary affidavit annexing
certain revenue records and proceedings of
some Case No. 1002 registered under
Section 9-A(2) of the Act, 1953 before the
C.O. The aforesaid case relates to some
Khata No. 565 of which Pheku appears to
be the recorded tenant and has been
registered at the instance of respondent no.
3 in which Godhani has been impleaded as
the opposite party. Godhani is the daughter
of Pheku. The proceedings of Case no.
1002 have been filed by the petitioners to
show that Pheku had a daughter namely
Godhani. The records of Case No. 1002
annexed with the supplementary affidavit
reveal that in the said case, the respondent
No. 3 claims himself to be the heir of
Pheku on the basis of some Will executed
by Pheku in his favour. It is also pertinent
to note that the facts disclosed in the
supplementary affidavit that Pheku had a
daughter
namely
Godhani
or
that
respondent no. 3 claims himelf to be heir of
Pheku in Khata No. 565 on the basis of a
Will executed by Pheku has not been
denied by respondent no. 3 in his
supplementary
counter
affidavit.
The
revenue
records
annexed
with
the
supplementary affidavit are of 1333 Fasli
and 1347 Fasli and the said revenue records
have been annexed in support of the
averment in the supplementary affidavit
that one Gaya, son of Mantu Lohar, resided
in the same village and respondent no. 3
had taken advantage of the records relating
to Gaya, son of Mantu Lohar to prove his
case. The petitioners have also annexed
with the supplementary affidavit a copy of
the revenue records of 1356 Fasli which
shows that Shivraji was recorded as tenant
of the disputed plots in 1356 Fasli. The
revenue
records
annexed
with
the
supplementary affidavit show that Gaya
had died before the Act, 1950 came in
operation.

9. Challenging the orders dated
28.2.2003 and 30.4.2013 passed by the
S.O.C. and the D.D.C., the counsel for
petitioners has argued that Gaya had a
heritable and transferable interest in the
disputed plots as he was a hereditary tenant
with special privilege, i.e., Class-9 tenant
as shown in Paragraph No. 124 of the Uttar
Pradesh Land Records Manual, therefore,
the Will dated 29.3.1946 was valid and
enforceable and the findings recorded by
the consolidation courts that the Will was
void is contrary to law. It was further
argued that the recital in the Will dated
29.3.1946 made by Gaya that he had no son
and only one daughter namely Munia, who
240 INDIAN LAW REPORTS ALLAHABAD SERIES
had a son, i.e., petitioner no. 1, proved that
Thakur and Pheku were not the sons of
Gaya Lohar. It was argued that even if the
Will dated 29.3.1946 executed by Gaya
was void , the Will and the recital in the
same were still admissible under Section
32(6) of the Indian Evidence Act, Act, 1872
(hereinafter referred to as, 'Act, 1872') and
were relevant and material evidence to be
considered while deciding the issue as to
whether Thakur and Pheku were the sons of
Gaya and the failure of the SO.C. and the
D.D.C. to consider the Will vitiates the
impugned orders for non-consideration of
relevant materials. It was further argued by
the counsel for the petitioners that the
burden to prove the pedigree as alleged by
respondent no. 3 was on respondent no. 3,
who had failed to prove the pedigree as
alleged by him inasmuch as the original
birth register of 1916 summoned by the
C.O. clearly indicated that a son was born
to Gaya Koeyri and not to Gaya Lohar.
Relying on the revenue records of 1333
Fasli and 1347 Fasli filed alongwith the
supplementary affidavit, the counsel for the
petitioners has argued that there was
another person by the name of Gaya in the
same village and respondent no. 3 took
advantage of the records relating to the
aforesaid Gaya, son of Mantu Lohar to
prove his relationship with Gaya Lohar
who was the original tenure holder of the
disputed plots. It was further argued that
the entries in the birth registers and the
family registers, though relevant, are not
conclusive of genealogy and relationship,
but require corroboration to prove the
pedigree and respondent no. 3 had not
produced any evidence to corroborate the
alleged entries in the certified copies of the
extracts of birth registers filed by him. It
was argued by the counsel for the
petitioners that after the death of Gaya, his
widow Shivraji, became the tenant of the
disputed plots under Section 35(b) of the
Act, 1939 and after the death of Shivraji
succession had to be decided in accordance
with Section 171 read with Section
172(2)(b) of the Act, 1950 and the disputed
plots would devolve on the nearest
surviving heir of Gaya, the last male tenant
of the disputed plots. It was argued that the
petitioners being the sons of the daughter of
Gaya, became the tenants of the disputed
plots under Section 171(2)(h) of the Act,
1950. It was argued that for the aforesaid
reasons, the orders dated 28.2.2003 and
30.4.2013 passed by the S.O.C. and the
D.D.C. are illegal and contrary to law and
liable to be quashed. In support of his
contention, the counsel for the petitioners
has relied on the judgements of Supreme
Court and of this Court reported in State of
Bihar Vs. Radha Krishna Singh, AIR
1983 SC 683, M Vs. Board of Revenue,
1962 RD, (1) (H.C.), Ram Prasad Sharma
Vs. State of Bihar, AIR 1970 SC 326,
Madhuri Devi & Another Vs. Board of
Revenue, U.P. at Lucknow & Others, 2011
(114) RD 465, Sebastiao Luis Fernandes
Vs. K.V.P. Shashtri, 2014 AIR SCW 155,
Anil Rishi Vs. Gurbaksh Singh, AIR 2006
SC 1971; and Vinod Kumar Dhall Vs.
Dharampal Dhall & Others, AIR 2018 SC
3470.

10. Rebutting the argument of the
counsel for the petitioners, the counsel for
respondent no. 3 has supported the reasons
given by the S.O.C. and the D.D.C. in their
orders dated 28.2.2003 and 30.4.2013. The
counsel for respondent no. 3 has argued
that in view of Section 33 of the Act, 1939
the interest of Gaya in the disputed plots
was heritable but not transferable and,
therefore, Gaya had no right to execute a
Will regarding the disputed plots and the
Will dated 29.3.1946 was void ab initio and
non est and had no legal consequences. It
6 All. Bhrigusaran & Ors. Vs. Deputy Director of Consolidation, Kushinagar & Ors.
241
was argued that both the C.O. and the
S.O.C. had held that the Will dated
29.3.1946 was void and the said findings
were not challenged by the petitioners in
the revision filed by them before the
D.D.C.
and,
therefore,
the
findings
recorded by the consolidation courts that
the Will was not enforceable cannot be
challenged by the petitioners for the first
time before this Court. It was further
argued that as the Will dated 29.3.1946 was
void ab initio, therefore, it cannot be read
in evidence and any recital in the same
allegedly
made
by
Gaya
was
also
inadmissible in evidence and was rightly
ignored by the appellate and the revisional
courts. It was argued that the copies of the
birth registers produced by respondent no.
3 for the year 1916 and 1928 showed that
sons were born to Gaya, the original tenure
holder of the disputed plots and the death
register of 1943 proved that Thakur was the
son of Gaya and no illegality has been
committed by the S.O.C. and the D.D.C. in
relying on the aforesaid documents to hold
that Thakur and Pheku were the sons of
Gaya and respondent no. 3 was the
grandson of Thakur. It was argued by the
counsel for respondent no. 3 that the
original birth register was tampered by
adding the word 'Koeyri' after the name of
Gaya after the certified copy was issued to
respondent no. 3. It was argued that the
S.O.C. and the D.D.C. have rightly
accepted the certified copies of the extracts
of birth registers filed by the respondent no.
3 to hold that Gaya had two sons. It was
argued that, admittedly, Shivraji was
married to Gaya and also that Thakur and
Pheku were the sons of Shivraji, therefore,
the burden to prove that Thakur and Pheku
were not the sons of Gaya Lohar was on the
petitioners and the petitioners had failed to
discharge their burden as they could not
produce any evidence to prove that any
person named Gaya Koeyri resided in the
village or any evidence to prove the
marriage of Shivraji with Budhai. It was
argued that the findings recorded by the
S.O.C. and the D.D.C. in their impugned
orders dated 28.2.2003 and 30.4.2013 are
based on evidence on record and not
subject to interference by this Court under
Article 226 of the Constitution of India. It
was argued that for the aforesaid reasons,
the writ petition is liable to be dismissed. In
support of his argument, the counsel for
respondent no. 3 has relied on the
judgements of the Supreme Court and this
High Court reported in Prem Singh &
Others Vs. Birbal & Others, 2006 (5) SCC
353,
Ibrahim
Khan
Vs.
Additional
Collector (Administration) Lucknow &
Others, 2016 (131) RD 161, Suzuki
Parasrampuria Suitings Pvt. Ltd. Vs.
Official
Liquidator
of
Mahendra
Petrochemicals Ltd. & Others, AIR 2018
SC 4769, Kalpesh Hemantbhai Shah Vs.
Manhar Auto Stores & Others, 2014 AIR
SCW 1959; and State of U.P. & Others Vs.
Maharaj Dharmander Prasad Singh, AIR
1989 SC 997.

11. I have considered the rival
submissions of the counsel for the parties.

12. It is not disputed by the parties
that Gaya had died before the date of
vesting as defined in the Act, 1950 and
Shivraji was recorded as tenant of the
disputed plots in the revenue records of
1356 Fasli and 1359 Fasli. It is also
admitted between the parties that Thakur
and Pheku were the sons of Shivraji and
also that Munia was the daughter of
Shivraji and Gaya. The dispute between the
parties relates to the paternity of Thakur
and Pheku. Respondent no. 3 pleads that
Thakur and Pheku were the sons of Gaya
while the petitioners allege that Thakur and
242 INDIAN LAW REPORTS ALLAHABAD SERIES
Pheku were the sons of Budhai to whom
Shivraji was married before her marriage to
Gaya. The dispute as to whether Thakur
and Pheku were the sons of Gaya is
relevant to decide the heir of Gaya and the
tenancy of the disputed plots under Section
171 of the Act, 1950. The answer to the
question as to who is the heir of Gaya and
on whom the tenancy of the disputed plots
devolve is also dependent on the validity of
the Will dated 29.3.1946 allegedly executed
by Gaya. The Will is a registered
document. The consolidation courts have
rejected the Will on the ground that Gaya
had no transferable interest in the suit
property and, therefore, the Will was void.
The petitioners have challenged the said
findings of the consolidation courts. The
issue regarding the relationship of Gaya
with Thakur and Pheku would be relevant
only if the findings of the consolidation
courts on the Will dated 29.3.1946 is
affirmed.
Therefore,
first,
the
issue
regarding the validity of the Will.

13. The counsel for the petitioners,
while challenging the findings of the
consolidation courts that Gaya had no right
to execute the Will dated 29.3.1946, has
argued that Gaya was a hereditary tenant
with special privilege, i.e., Class-9 as
enumerated in Paragraph No. 124 of the
U.P. Land Records Manual, and therefore,
the interest of Gaya in the disputed plots
was both heritable and transferable and
thus the Will dated 29.3.1946 was valid and
legally enforceable.

14. The contention of the counsel for
the petitioners can not be accepted. The
petitioners have not brought on record any
document to show that Gaya was a
hereditary tenant or Class-9 tenant of the
disputed plots. Any consideration of the
tenancy rights of Gaya, in light of the
arguments raised by the counsel for the
petitioner would require an enquiry into
disputed question of facts, i.e., the tenancy
rights of Gaya in the disputed plots, the
records relating to which have not been
produced before this Court. Apart from the
aforesaid, a perusal of the revenue record
of 1347 Fasli, annexed as Annexure no.
SA-2 to the supplementary affidavit, shows
that Gaya was an occupancy tenant and was
recorded as Class 6(1) tenant in the revenue
records. Under Section 33 of the United
Provinces Tenancy Act, 1939 an occupancy
tenant had no transferable interest except in
the circumstances mentioned in Act, 1939.
It is not the case of the petitioners that any
of the circumstances mentioned in Act,
1939
existed
which
gave
Gaya
a
transferable interest in the disputed plots.
The said document does not support the
contention of the petitioners regarding the
nature of tenancy of Gaya in the disputed
plots. Further, the findings recorded by the
C.O. and the S.O.C. that Gaya did not have
a transferable interest in the disputed plots
and, therefore, the Will dated 29.3.1946
was void and not legally enforceable was
not challenged by the petitioners in the
revision filed by them before the D.D.C. In
the circumstances the petitioners can not,
for the first time before this Court in
proceedings under Article 226 of the
Constitution of India be permitted to
challenge the said findings of the S.O.C.
and D.D.C.

15. At this stage it is necessary to
clarify that no statutory provision in the
Act, 1939 was brought to the notice of this
Court by the counsel for the respondent to
show that Act 1939 prohibited bequest by
the class of tenants included in Section 33
of the Act, 1939. But as the counsel for
the
petitioners
did
not
raise
any
argument challenging the approach of
6 All. Bhrigusaran & Ors. Vs. Deputy Director of Consolidation, Kushinagar & Ors.
243
the consolidation courts in treating the
Will to be a transfer of property, I am
not expressing any opinion on the
correctness of the findings of the
consolidation
courts
regarding
the
legality of the Will on the said ground.
The challenge by the petitioners to the
findings
of
the
consolidation
courts
regarding the validity of the Will is being
rejected only on the ground that the
petitioners, can not for the first time, be
permitted to raise the said argument in the
writ petition and because the argument of
the
petitioners
that
the
Will
was
enforceable and not void is based on the
nature of tenancy rights of Gaya in the
disputed plots and the documents annexed
with the supplementary affidavit negate the
facts pleaded by the petitioners to support
their argument that Gaya had a transferable
interest in the plots.

16. In order to prove their respective
cases, regarding the descendants of Gaya,
i.e., as to whether Munia was the only child
of Gaya or whether Thakur and Pheku were
the sons of Gaya, the parties relied on the
certified copies of the extracts of different
birth and death registers. The petitioners
also relied on the recital in the Will to
prove their case and disprove the pedigree
pleaded by respondent no. 3.

17. The respondent no. 3, in order to
prove his case, filed a certified copy of the
extract of Birth register of 1916 which
showed that a son was born to Gaya. A
reading of the judgement dated 31.12.1984
passed by the C.O. indicates that there was
some doubt regarding the authenticity of
the certified copy and, therefore, the C.O.
summoned the original birth register. The
original birth register indicated that the
entries related to one Gaya who belonged
to the Koeyri community. Gaya who was
the original tenure holder of the disputed
plots belonged to the Lohar community.
The C.O., therefore, relying on the entries
in the original register held that birth
register of 1916 did not prove that Thakur
was the son of Gaya who was the original
tenure holder of the disputed plots. The
findings of the C.O. was reversed by the
S.O.C. on the ground that entries in the
birth birth are in Urdu language and in the
Persian Script where a mere dot can
completely change the transcribed Urdu
word. The S.O.C. and the D.D.C. relied on
the certified copy filed by respondent no. 3
to hold that Thakur was the son of Gaya
Lohar and held that the entries in the
original birth register had been tampered
because admittedly the certified copy filed
by respondent no. 3 was issued to him.

18. The contents of the certified copy
filed by respondent no. 3 differed from the
original. The consolidation courts did not
summon any officer from the concerned
department to verify the genuineness of the
certified copy filed by respondent no. 3.
The certified copy of a document is a
secondary evidence under Section 63 of the
Evidence Act, 1872. The original document
is a primary evidence under Section 62 of
the Act, 1872. The contents of a document
are, except in circumstances mentioned in
Section 65 of the Act, 1872 must be proved
by the primary evidence, i.e., the document
itself (section 64 of the Act, 1872). It is true
that certified copy of a public document is
admissible in evidence under Section 77
read with Section 65(e) of the Evidence
Act, 1872 in proof of the contents of the
public document or part of the public
document of which it purports to be a copy.
Under Sections 77 and 79 of the Act, 1872
the courts raise a presumption that the
certified copy reflects the contents of the
original. The presumption in favour of the
certified copy is not conclusive but a
244 INDIAN LAW REPORTS ALLAHABAD SERIES
rebuttable presumption. The presumption in
favour of the certified copy that it reflects
the contents of the original can be rebutted
by production and perusal of the original
record. The utility of a certified copy as
evidence is to prove the contents of the
original public document where the original
is not on record. A reading of Sections 61
to 65 of the Evidence Act, 1872 indicates
that secondary evidence in proof of the
document or its contents can be given only
where the original, i.e., the primary
evidence can not or is not produced as
evidence. If both primary and secondary
evidences are on record and there is a
conflict between the contents of the two,
the contents of the primary evidence, i.e.,
the original, are to be accepted. The
certified copy loses its evidentiary value if
it does not correctly reflect the contents of
the original. The certified copy and its
contents are by themselves not an evidence
of any tampering or forgery in the original
if the contents of the original are different
from the contents of the certified copy. The
alleged tampering or manipulation in the
original has to be proved by other evidence.
Thus, the certified copy of birth register of
1916 filed by respondent No. 3 was not a
material evidence to hold that the original
birth register had been tempered and the
S.O.C. and the D.D.C. by relying on the
certified copy of birth register of 1916 have
considered irrelevant material to hold that
the original birth register of 1916 had been
tampered.

19. In their impugned orders the S.O.C
and the D.D.C. have noted that a mere dot in
Persian Script can change the word itself, and
have, therefore, concluded that the original
register has been tampered and entries in the
original have been changed. The aforesaid
opinion is a mere surmise. No linguistic expert
was called by the respondent No. 3 or the
consolidation courts to verify the aforesaid
fact. I have myself looked at the Persian Script
of the words 'Koeyri' and 'Lohar' and it is
apparent that the script of the two words is
totally different and a mere dot would not
change the word itself. The way 'Koeyri' is
written in the Persian Script is totally different
from the way 'Lohar' is written in the Persian
Script and it can not be said that a mere
addition of dot in the word 'Lohar' would
change it to the word 'Koeyri'. Further, even if
the birth register of 1916 was tampered and
entries forged, the said tampering only reduces
or extinguishes the probative value of the
entries and does not prove the case of
respondent no. 3 because there is nothing on
record to indicate the initial entry in the
records.

20. The birth register of the year 1928
indicates that one son was born to Gaya Lohar
and the copy of the death register of 1943 filed
by respondent no. 3 indicates that one Thakur,
son of Gaya had died in the aforesaid year.

21. However, it was held by this
Court in Madhuri Devi (Supra) that, "an
entry in a revenue record or in the family
register is no final proof of the parentage of
a person". (Paragraph no. 13). The death
and the birth registers, by themselves, are
not conclusive proof of a pedigree pleaded
by a party and the entries in the said
documents require corroboration. There is
no evidence on record corroborating the
entries in the birth register of 1928 and the
death register of 1943. In any case, the
probative value of the entries in the
different registers mentioned above and
filed by respondent no. 3 had to be assessed
in light of other evidences brought on
record by the parties. The petitioners, in
order to disprove that Thakur and Pheku
were the sons of Gaya, had filed the Will
dated 29.3.1946 which contained a recital
6 All. Bhrigusaran & Ors. Vs. Deputy Director of Consolidation, Kushinagar & Ors.
245
by Gaya that he had no son but only a
daughter named Munia. The recital in the
aforesaid Will has not been considered by
the S.O.C. and the D.D.C. while assessing
the different evidence filed by the parties to
prove their respective cases. The issue
before this Court is as to whether the
failure of the S.O.C. and the D.D.C. to
consider the Will dated 29.3.1946 and the
recital in it vitiates their orders requiring
interference by this Court?

22. The counsel for the petitioners has
argued that the Will, even if void because
Gaya had no right to execute the said Will,
was admissible in evidence under Section
32(6) of the Act, 1872 to disprove the
alleged relationship between Thakur and
Gaya. The counsel for respondent no. 3 has
argued that the Will was void and thus non
est and therefore the Will or any part of it
was not admissible in evidence and can not
be read in evidence for any purpose and the
appellate and the revisional courts rightly
refused to consider the same. In support of
his argument the counsel for respondent no.
3 has relied on the judgement of this Court
in Ibrahim Khan (Supra) and of the
Supreme Court in Prem Singh (Supra).

23. 'Void' and 'non-est' are two different
concepts. The concept of void refers to the
enforceability
of
a
contract/document/
transaction and when a contract or a
document is referred as void it implies that
the same is not legally enforceable. 'Non-est'
means 'non-existent' and is used to deny the
execution of the document itself. A void
document is not necessarily 'non-est'. It is
only an existing document which a party can
plead to be 'void'. If a document is executed
by a person who had no authority to execute
it or no authority to indulge in the
transactions incorporated in the document,
the document would be void but not 'non-est'.
If a document is void then it can not be sued
upon and enforced but the aforesaid does not
mean that other legal consequences of the
document shall not follow. A contract or any
other document which creates a right would
be enforced by a court only if the person who
executed the document has the authority to
execute it, the document is admitted in
evidence and proved in accordance with the
provisions of Evidence Act, 1872. The
admissibility in evidence or the probative
value of a document or its contents does not
depend on its enforceability by the courts. For
example, if a Will is not proved in accordance
with Section 68 of the Act, 1872 because no
attesting witness of the Will who is alive, and
subject to the process of the court and capable
of giving evidence has been called to prove
its due execution, the Will would not be
enforced and the Will shall not be read in
evidence for the purposes of enforcing the
Will but can still be read in evidence for
any purpose other than for enforcing the
Will. In such a case, the document purporting
to be a Will will be read in evidence not as
Will but as any other document provided it
has been proved in accordance with Sections
67, 72 and other provisions of the Evidence
Act, 1872. Similarly in case, where a Will is
not used or relied upon as a document
conferring any enforceable right, the same
can be read in evidence even if the
requirement of Section 68 are not fulfilled
and the said document is proved in
accordance with Sections 67 and 72 of the
Act, 1872. A Will which is executed by a
person who had no right to make a bequest of
the properties would not be enforceable by a
court and in that sense it would be void.