# Kapil Deo v. D.D.C. Faizabad & Ors - **Citation:** (2016) 4 ILRA 591 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2016-04-21 - **Bench:** Anil Kumar - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kapil-deo-v-d-d-c-faizabad-ors-43664 - **Pages:** 8 ## Headnote 592 INDIAN LAW REPORTS ALLAHABAD SERIES Held - Paragraphs 1-3: Background and Procedural History The court outlines the initial dispute where the Consolidation Officer first ruled in favor of the petitioner (Kapil Deo, the adopted son). This was later overturned on appeal and revision, leading to the current challenge of the Deputy Director of Consolidation's (DDC) order which upheld the validity of the Will in favor of Sheo Kumar. Paragraphs 4-7: Arguments of the Parties The petitioner argued the Will was unproven and that a valid Adoption Deed should take precedence. The respondents countered that the Will was duly proven by an attesting witness (Ram Deo) and noted that the petitioner failed to follow through on a court-sanctioned handwriting expert verification of the testator's thumb impression. Paragraphs 8-11: Finding on the Execution of the Will The Court found that the respondent successfully proved the Will under Section 68 of the Indian Evidence Act. Crucially, the Court noted the petitioner's negligence in not pursuing the forensic expert opinion he himself requested. Paragraphs 12-16: Adoption vs. Testamentary Succession The Court held that a Will, by its very nature, is intended to interfere with the normal line of succession (intestate). The existence of an adopted son does not invalidate a testator's right to bequeath property to someone else. The Court clarified that the Indian Succession Act, 1925 governs Wills, and excluding a natural or adopted heir is not, by itself, a "suspicious circumstance." Paragraphs 17-20: Procedural Failures and Dismissal The Court refused to entertain the petitioner's oral arguments regarding "suspicious circumstances" because those facts were not specifically pleaded in the writ petition. Citing Supreme Court precedent, the Court emphasized that in writ jurisdiction, evidence and facts must be clearly stated in the pleadings. Consequently, the petition was dismissed. Petition Dismissed. List of Citations - ## Text 4 All. Kapil Deo Vs D.D.C. Faizabad & Ors. 591 "18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence....." 19. Learned counsel for the appellant has also submitted that the occurrence relates to the year 1979 and above 37 years have passed. Thus, keeping in view the disability of the accusedappellant and keeping in mind that he had undergone substantial part of the sentence and even less than a year of his sentence remained. 20. In the facts and circumstances of the case, I think the end of the justice would be met if the custodian sentence for four years of the accused under Section 376 I.P.C. to reduce to the period already undergone i.e. two and half years. 21. In view of the aforesaid, the appeal is partly allowed. The conviction of the appellant under Section 376 I.P.C. is confirmed and the sentence of 4 years imprisonment is reduced to the period already undergone i.e. two and half years. 22. The appellant is in jail. He would serve out the remained of his sentence, if not already completed. 23. Let certified copy of this judgement be sent to the concerned court immediately for sending modified conviction warrant of the accused appellant to the concerned prison. ---------- ORIGINAL JURISDICTION CIVIL SIDE DATED: LUCKNOW 21.04.2016 BEFORE THE HON'BLE ANIL KUMAR, J. Consolidation No.- 104 Of 1999 Kapil Deo ...Petitioner Versus D.D.C. Faizabad & Ors. ...Respondents Counsel for the Petitioner: Shri H.S. Sahai, Shri S C Sitapuri, Shri U.S. Sahai Counsel for the Respondents: Chief Standing Counsel, Shri Amit Mukherjee, Shri Badrish Kumar, Shri D.C. Mukherjee, Shri R.R. Upadhayaya 592 INDIAN LAW REPORTS ALLAHABAD SERIES Held - Paragraphs 1-3: Background and Procedural History The court outlines the initial dispute where the Consolidation Officer first ruled in favor of the petitioner (Kapil Deo, the adopted son). This was later overturned on appeal and revision, leading to the current challenge of the Deputy Director of Consolidation's (DDC) order which upheld the validity of the Will in favor of Sheo Kumar. Paragraphs 4-7: Arguments of the Parties The petitioner argued the Will was unproven and that a valid Adoption Deed should take precedence. The respondents countered that the Will was duly proven by an attesting witness (Ram Deo) and noted that the petitioner failed to follow through on a court-sanctioned handwriting expert verification of the testator's thumb impression. Paragraphs 8-11: Finding on the Execution of the Will The Court found that the respondent successfully proved the Will under Section 68 of the Indian Evidence Act. Crucially, the Court noted the petitioner's negligence in not pursuing the forensic expert opinion he himself requested. Paragraphs 12-16: Adoption vs. Testamentary Succession The Court held that a Will, by its very nature, is intended to interfere with the normal line of succession (intestate). The existence of an adopted son does not invalidate a testator's right to bequeath property to someone else. The Court clarified that the Indian Succession Act, 1925 governs Wills, and excluding a natural or adopted heir is not, by itself, a "suspicious circumstance." Paragraphs 17-20: Procedural Failures and Dismissal The Court refused to entertain the petitioner's oral arguments regarding "suspicious circumstances" because those facts were not specifically pleaded in the writ petition. Citing Supreme Court precedent, the Court emphasized that in writ jurisdiction, evidence and facts must be clearly stated in the pleadings. Consequently, the petition was dismissed. Petition Dismissed. List of Citations - 1. Sridevi and Ors. Vs. Jayaraja Shetty and Ors. AIR 2005 SC 780 2. H. Venkatachala Iyengar vs. B.N. Thimmajamma & Ors. (1959) Supp. 1 SCR 426 3. Ramchandra Rambux vs. Champaabai & Ors. (1964) 6 SCR 814 4. Surendra Pal & Ors. Vs. Dr. (Mrs.) Saraswati Arora & Anr. (1974) 2 SCC 600 5. Smt. Jaswant Kaur vs. Amrit Kaur & Ors. (1977) 1 SCC 369 4 All. Kapil Deo Vs D.D.C. Faizabad & Ors. 593 6. Meenakshiammal (Dead) thr. LRs. & Ors. Vs. Chandrasekaran & Anr. (2005) 1 SCC 280 (Delivered by Hon'ble Anil Kumar, J.) 1. Heard Sri U.S. Sahai, learned counsel for petitioner, learned State counsel as well as Sri R.R. Upadhayaya, learned counsel for respondents and perused the record. 2. Facts in brief of the present case are that Sri Ram Adhar the recorded tenure holder of Khata No. 163, 328 & 329 Village Khanpur, Post Officer Punhed, District Faizabad. After his death when consolidation proceeding started in the village, two sets of objections under Section 9 of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act), were filed; one by petitioner/Kapil Deo on the ground that he is the adopted son of Sri Ram Adhar by virtue of adoption deed, second set of objection has been filed by Sri Sheo Kumar (now deceased) on the ground that Ram Adhar has bequeathed the property by Will Deed dated 10.05.1975 in his favour. 3. By order dated 31.01.1991, Consolidation Officer allowed the claim of the petitioner, challenged by the respondent by filing an appeal, allowed by order dated 11.07.1996, challenged by the petitioner by Revision No. 581 (Kapil Deo Vs. Sheo Kumar), allowed by order dated 30.01.1999 passed by Dy. Director of Consolidation, Faizabad. 4. Sri U.S. Sahai, learned counsel for petitioner while challenging the order passed by Dy. Director of Consolidation, Faizabad as well as Settlement Officer Consolidation, Faizabad submits that said authority erred in placing reliance on the will while passing impugned orders as Sri Sheo Kumar (now deceased) was not able to prove the will, so orders passed by respondent No. 1 & 2 are contrary to law. 5. Another submission made by learned counsel for petitioner that once there is a valid adoption deed executed by original tenure holder Sri Ram Adhar in favour of petitioner then in that circumstances, in no manner it can be presumed that the will has been bequeathed in favour of Sri Sheo Kumar and there is no recital in the will why the petitioner is deprive from the property by late Ram Adhar, so the impugned orders are without jurisdiction, contrary to the provisions of Section 16 of the Hindu Adoption and Maintenance Act, liable to he set aside. 6. Sri R.R. Upadhyay, learned counsel for respondents while defending the impugned order submits that in order to prove Will, Sri Sheo Kumar has examined himself as witness and produced one Sri Ram Deo who attesting witness of the will, who has proved the execution of the will by Sri Ram Adhar. 7. He further submits that during the course of proceeding before court below, Kapil Deo moved an application to verify the thumb impression of Ram Deo from handwriting expert, the same was allowed, even then no steps taken by Kapil Deo/petitioner in this regard, so there is no illegality or infirmity in the impugned order under challenge in the present writ petition, liable to be dismissed. 594 INDIAN LAW REPORTS ALLAHABAD SERIES 8. I have heard learned counsel for parties and perused the record. 9. From the perusal of the orders under challenge in the present case, the position which emerged out that Ram Adhar (now deceased) was recorded tenure holder of the land in dispute has executed an unregistered will in favour of Sheo Kumar and he has proved the execution of will by examining himself as witness and a attesting witness as Ram Deo who has categorically stated in respect to the execution of will by Ram Adhar. In this regard a categorical finding of fact has been recorded by Dy. Director of Consolidation in its order dated 31.01.1999. 10. Further, Dy. Director of Consolidation while passing the order dated 30.01.1999 given a finding that on behalf of the petitioner/Kapil Deo, moved and application for getting expert opinion for verification of thumb impression of Ram Adhar on the will, allowed but no steps has been taken thereafter by Kapil Deo, accordingly, the court below came to the conclusion that the respondent/Sheo Kumar (now deceased) (substituted by his legal heirs as respondent Nos. 3/1 to 3/8, namely, Smt Prabha, Smt Gomti, Satya Deo, Chandra Prakash Indra Prakash, Sant Prakash, Smt. Neelam Smt. Indravati). 11. Thus, in view the abovesaid facts, the argument advanced by learned counsel for petitioner that the respondent has failed to establish and prove the execution of will in their favour by Sri Ram Adhar is unfounded rather contrary to the provisions of Section 68 of the Indian Evidence Act, 1862. 12. So far as the argument advanced by learned counsel for petitioner that once there is an adoption deed exists in favour of the petitioner, not challenged, so there is no justification or reason that a will was executed in favour of respondent/Sheo Kumar has got no force because it is to be remembered that the Will is the intention of the testator about distribution of his rights with an obvious intention not to go as an intestate, therefore, distribution to one of the heir is more and to other in less can not be a good ground of unnaturality. It is also to be remembered that a Will is not intestate succession to be governed by any law of religious succession. Will is to be governed by the Indian Succession Act, 1925 which prevails over the field unless , of course, it is hit by any statute. 13. In the case of Ishwardeo Narain Singh Vs. Smt. Kamta Devi reported in AIR 1954 SC 280 the Supreme Court held as under: "the Court of probate is only concerned with the question as to whether the document put forward as the last Will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. Therefore the only issue in a probate proceedings relates to the genuineness and due execution of the Will and the Court itself is under duty to determine it and preserve the original Will in its custody. The Succession Act is a self-contained code insofar as the question of marking an application for probate,l grant or refusal of probate or an appeal carried against the decision of 4 All. Kapil Deo Vs D.D.C. Faizabad & Ors. 595 the Probate Court. This is clearly manifested in the fascicule of the provisions of the Act. The probate proceedings shall be conducted by the Probate Court in the manner prescribed in the Act and in no other ways. The grant of probate with a copy of the Will annexed establishes conclusively as to the appointment of the executor and the valid execution of the Will. Thus it does no more than establishes the factum of the Will and the legal character of the executor. Probate Court does not decide and question of title or of the existence of the property itself." 14. In the case of Uma Devi Namibar and others Vs. T.C. Sidhan (Dead) 2004 (2) SCC 321 the Supreme Court held as under: "A Will is executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his property to pas to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance especially in a case where the bequest has been made in favour of an offspring. As held in P.P.K. Gopalan Nambiar Vs. P.P.K. Balakrishnan Nambiar reported in 1994(Suppl.)RD 329(SC), it is the duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. It has been held that if the propounder succeeds in removing the suspicious circumstance, the Court has to give effect to the Will, even if the Will might be unnatural in the sense that it has cut off wholly or in part near relations. (See also Pushpavathi Vs. Chandraraja Kadamba reported in 1973(3) SCC 291)." 15. In the case of Rabindra Nath Mukherjee Vs. Panchanan Banerjee reported in 1996(Suppl.)RD119(SC), it was observed:- "that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the Will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of Will. Of course, it may be that in some cases they are fully debarred and in some cases partly." 16. In the case of Ajit Chandra Majumdar Vs. Akhil Chandra Majumdar reported in AIR 1970 Cal.551, a Division Bench of the Calcutta High Court has held in paragraph 34 as follows: "(34) The Will has been challenged on the grounds that it is an unnatural Will because the testator prefers one son to others. On the question of unnatural and officious Will a Court of probate has to act with great caution. The testator who has full testamentary powers and a disposing mind cannot be dictated by the Court as to what is a fair and an unjust disposition. The Will is the Will of the testator and he has, under the law, the freedom to give his property to whomsoever he likes. What strikes the Court as an eccentric or an unjust or an unnatural 596 INDIAN LAW REPORTS ALLAHABAD SERIES disposition can certainly be taken as a consideration on the main question of finding out whether the testator was acting as a free agent and with a sound disposing and understanding mind. But once it is established that the testator was free and had a sound disposing mind, then it is no longer the duty of the court to go further to inject its own ethics of what is or is not a moral or a fair disposition according to the Court's own standards. Judged by that test many a Will by a father depriving his sons would be unjust and indeed many a Will exhibits man's iniquity against his nearest and dearest relations and yet not on that ground alone have those Wills been declared by this Court invalid. Such wrongs, however, grievous, are not for the temporal Courts of justice to correct and are better left to him who adjusts all wrongs and non justifiable iniquities, and under whose munificence the testator and the disinherited alike live and die." 17. In view of the above said judicial pronouncement, the whole idea behind execution of the Will is to interfere with the normal line of succession and so, natural/adopted heirs would be debarred in every case of Will. As the argument advanced on behalf of the petitioner that orders under challenge in the instant case is contrary to the provisions of Section 16 of the Hindu Adoption and Maintenance Act has got no force. 18. When the above said submissions advanced by the learned counsel for the petitioner on the basis of pleadings taken by him in the writ petition are rejected then learned counsel for the petitioner made another arguments that the Will in question was executed in a suspicious circumstance, so opposite parties no. 1 and 2 erred in upholding the Will and passing the impugned judgments in favour of the respondents. 19. Petitioner's Counsel was asked to refer the pleading in the writ petition in support of his arguments, however, he could not point out a single paragraph in the writ petition where the petitioner has challenged the findings of opposite parties no. 1 and 2 that Will in favour of respondent in this regard. 20. In view of the discussion made above, as there is no specific pleading in this regard in the writ petition thereby challenging the findings of opposite parties no. 1 and 2, the said argument raised by learned counsel for petitioner cannot be entertained. Because Apex Court in the case of Bharat Singh and others Vs. State of Haryana and others, AIR 1988 SC2181 has held that : "In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the Court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be 4 All. Kapil Deo Vs D.D.C. Faizabad & Ors. 597 pleaded, in a writ petition or in the counter-affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable." 21. This Court in the case of Madhav Singh and others Vs. Deputy Director of Consolidation, Banda Camp and Mahoba reported in 2006(100)RD774 where it was held that: "Petitioner Counsel was asked to refer the pleading in the writ petition in support of his oral arguments but learned counsel for petitioner could not point out a single paragraph in the writ petition where the petitioner has challenged the findings of Deputy Director of Consolidation that Will in favour of contesting opposite parties is proved." 22. Even otherwise, the ground of suspicious orally taken by learned counsel for petitioner while challenging the will is incorrect in view of the facts stated above as well as the law laid down by Hon'ble the Apex Court in the case of Sridevi and Ors. Vs. Jayaraja Shetty and Ors, AIR 2005 SC 780, held as under:- "It is well settled proposition of law that mode of proving the will does not differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Indian Succession Act, 1925. The onus to prove the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and proof of the signature of the testator, as required by law, need be sufficient to discharge the onus. Where there are suspicious circumstances, the onus would again be on the propounder to explain them to the satisfaction of the court before the will can be accepted as genuine. Proof in either case cannot be mathematically precise and certain and should be one of satisfaction of a prudent mind in such matters. In case the person contesting the will alleges undue influence, fraud or coercion, the onus will be on him to prove the same. As to what are suspicious circumstances have to be judged in the facts and circumstances of each particular case. { For this see H. Venkatachala Iyengar V. B.N. Thimmajamma & Ors. [(1959) Supp.1 SCR 426] and the subsequent judgments Ramchandra Rambux V. Champaabai & Ors. [(1964) 6 SCR 814]; Surendra Pal & Ors. V. Dr. (Mrs.) Saraswati Arora & Anr. [(1974) 2 SCC 600]; Smt. Jaswant Kaur V. Amrit Kaur & Ors. [(1977) 1 SCC 369]; and Meenakshiammal (Dead) thr. LRs. & Ors. V. Chandrasekaran & Anr. [(2005) 1 SCC 280]." 23. For the foregoing reasons, the present writ petition lacks merit and the same is hereby dismissed. 24. No order as to costs. --------- 598 INDIAN LAW REPORTS ALLAHABAD SERIES APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 21.01.2016 BEFORE THE HON'BLE SURYA PRAKASH KESARWANI, J. First Appeal From Order No.- 139 Of 2016 Umashankar ...Appellant Versus Ramashankar Rai & Ors. ...Respondents Counsel for Appellant: Abhishek Kumar Civil Procedure Code, 1908 - Order XXII Rule 10 - Devolution of interest pendente lite - Right of assignee to be substituted - Scope and nature - Assignment prior to conclusion of suit - Court must permit continuation of litigation by persons upon whom the interest devolves. Order XXII Rule 10 CPC --A transferee pendente lite has a statutory right to seek leave of the court to continue the suit under Order XXII Rule 10 CPC-- such substitution is not barred merely because the plaintiff's heir has been substituted under Order XXII Rule 3 CPC-- The two provisions operate in distinct fields--Once interest in the subject-matter has devolved upon respondents through registered sale deeds--they fall squarely within Rule 10 and are entitled to seek substitution as assignees. (Paras 8-12) CPC - Order XXII Rule 10 vs Order XXII Rule 3 - Distinction - Legal heir substitution does not defeat rights of transferee pendente lite--Substitution of legal representatives under Rule 3 is based on devolution of estate--substitution under Rule 10 is based on devolution of interest in the subject-matter of the suit-- Both can co-exist-- Trial court erred in treating substitution under Rule 3 as a bar to substitution under Rule 10-- Section 146 CPC - Liberal construction - Right of a person claiming under a party to continue proceedings. (Paras 8-12) Assignee pendente lite - Right to be heard - Even if not substituted - Binding effect of decree - Even if not represented before the Court. (Para12) Appeal dismissed. Remand order upheld. List of Cases cited: 1. Smt. Saila Bala Dassi v. Nirmala Sundari Dassi AIR 1958 SC 394 2. Dhurandhar Prasad Singh v. Jai Prakash University AIR 2001 (6) SCC 534 3. Government of Orissa v. Ashok Transport Agency AIR 2002 (9) SCC 28 4. Thomson Press (India) Ltd. v. Nanak Builders & Investors Pvt. Ltd. (2013) 5 SCC 397 5. Kedar Nath Singh v. State of U.P. 2008 (6) ADJ 372 (DB) 6. Amrit Prasad v. State of U.P. Writ-A No. 62753 of 2015 (decided 16.11.2015) (Delivered by Hon'ble Surya Prakash Kesarwani, J.)