# Smt. Amarwati v. D.D.C. Bulandshahr And Others

- **Citation:** (2019) 1 ILRA 1068
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-07
- **Case number:** Writ - B No. 34173 of 1997
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-amarwati-v-d-d-c-bulandshahr-and-others-44404
- **Pages:** 18

## Headnote

C.S.C., Sri Ayub Khan, Sri H.N. Sharma,
Sri Jai Singh Chandel, Sri Mahesh Chand,
Sri Pankaj Mishra, Sri R.K. Rai, Sri Rahul
Sahai, Sri Rajesh Kumar.

A. U.P. Consolidation of Holdings
Act- Section 9A (2) - Objection filed-
claiming succession on the basis of
the last will and testament - validity
of the will challenged on the ground
of inequitable distribution and also
that the will is not free from all
doubts-Section
68
of
Indian
Evidence Act-Section 63 of Indian
Succession Act (para 15). Doctrine of
approbation
and
re-approbation.
(Para 16)

B. Code of Civil Procedure, 1908-
Order XLI Rule 31-the judgment
pronounced would not be vitiated for
the mere formality of non-framing of
an issue. (Paras 17 & 18)

C. Power of DDC to examine any
finding, whether of fact or law,
recorded
by
any
subordinate
authority, and also includes the
1 All. Smt. Amarwati Vs. D.D.C. Bulandshahr And Others
1069
power to re-appreciate any oral or
documentary evidence- Explanation
3 of Section 48-U.P. Consolidation of
Holdings Act. (Paras 10 to 14)

Writ petition Dismissed. (E-6)

## Text

_Characters 0–39,979 of 60,827. This is a partial read: ask again with offset=39979 for what follows._

1068 INDIAN LAW REPORTS ALLAHABAD SERIES
was entitled to represent the estate of the
deceased, and be substituted in place of
the deceased defendant, Raja Ram in the
pending second appeal. That of course
would be done by the Trial Court by
taking necessary evidence to judge the
parties' rival claims, with a finding
returned to the Board. But all this has not
been done, and by an order surreptitiously
made the substitution applications filed by
both sets of persons claiming to be legal
representatives of the deceased defendant,
Raja Ram have been allowed. This course
of action is patently illegal and the
impugned order passed by the Board of
Revenue cannot, therefore, be sustained.

19. The writ petition succeeds and is
allowed.
The
impugned
order
dated
14.12.1993 passed by the Board of Revenue,
U.P.
at
Allahabad
in
Second
Appeal
no.44/1976-77, Ramkesh vs. Raja Ram and
others, relating to District Mirzapur (now
Sonebhadra) is hereby quashed. The Board
of Revenue is directed to remit the matter to
the Trial Court as regards the entitlement to
represent
the
estate
of
the
deceased
defendant, Raja Ram in the pending appeal
before it, with a direction that after taking
such evidence as may be required, findings
with reasons be returned to the Board. This
exercise, the Board shall ensure, is completed
within a period of three months from the date
this order is produced before the Board. The
Board, after taking into consideration the
findings returned by the Trial Court under the
proviso to Order XXII Rule 5 CPC, shall pass
appropriate orders on the applications for
substitutions made on behalf of the two sets
of applicants before it, and thereafter
proceed with the appeal, hearing the
party brought on record in place of
deceased defendant, Raja Ram. Costs
easy.
-----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.08.2019

BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ - B No. 34173 of 1997

Smt. Amarwati ...Petitioner
Versus
D.D.C. Bulandshahr And Others
 ...Respondents

Counsel for the Petitioner:
Sri V.K. Singh, Sri Dushyant Singh, Sri
Rajesh Kumar Sharma, Sri Ram Kishor
Pandey, Sri S.K. Singh, Sri M.C. Singh.

Counsel for the Respondents:
C.S.C., Sri Ayub Khan, Sri H.N. Sharma,
Sri Jai Singh Chandel, Sri Mahesh Chand,
Sri Pankaj Mishra, Sri R.K. Rai, Sri Rahul
Sahai, Sri Rajesh Kumar.

A. U.P. Consolidation of Holdings
Act- Section 9A (2) - Objection filed-
claiming succession on the basis of
the last will and testament - validity
of the will challenged on the ground
of inequitable distribution and also
that the will is not free from all
doubts-Section
68
of
Indian
Evidence Act-Section 63 of Indian
Succession Act (para 15). Doctrine of
approbation
and
re-approbation.
(Para 16)

B. Code of Civil Procedure, 1908-
Order XLI Rule 31-the judgment
pronounced would not be vitiated for
the mere formality of non-framing of
an issue. (Paras 17 & 18)

C. Power of DDC to examine any
finding, whether of fact or law,
recorded
by
any
subordinate
authority, and also includes the
1 All. Smt. Amarwati Vs. D.D.C. Bulandshahr And Others
1069
power to re-appreciate any oral or
documentary evidence- Explanation
3 of Section 48-U.P. Consolidation of
Holdings Act. (Paras 10 to 14)

Writ petition Dismissed. (E-6)

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition arises out of
objections filed under Section 9-A (2) of
the U.P Consolidation of Holdings Act
filed by the petitioner no. 1, Smt.
Amarwati. The objections were filed on
02.04.1991, claiming succession on basis
of the last Will and testament of one,
Roshan
Singh,
the
last
undisputed
recorded tenure holder and the father-inlaw of the petitioner no. 1, Smt.
Amarwati. The right that was claimed
under the Will relates to Khata nos. 172,
407, amongst others, situate in village
Rabada, Pargana Shikarpur, Tehsil and
District Bulandshahar.

2. It would be profitable to
refer to the short pedigree of parties in
order to appreciate the petitioner's
claim, and, that of the contesting
respondent nos. 4 and 5. The pedigree
aforesaid is depicted below:-

Roshan

।
--------
।।।
Kanchhi Shishpal Sahaspal

।
Amarwati(Widow)

3. The petitioner's case as put
forward in the objections is that the
original tenure holder, Roshan Singh had
three sons, namely, Kanchhi, Shishpal and
Sahaspal.
Sahaspal
admittedly
predeceased,
Roshan
Singh.
The
first
petitioner is the widow of Sahaspal. The
petitioner acknowledges that in the basic
year
relative
to
the
consolidation
operations to which the objections relate,
Roshan Singh was recorded as the
bhumidhar in possession of Khata nos.
172, 405, 407, 82A and 82B. In the basic
year aforesaid over the Khata no. 172, the
name of Devi Singh and Roshan Singh,
sons of Udal Singh were recorded as cotenure holders whereas, over Khata no.
405, Roshan Singh S/o Udal Singh was
exclusively recorded. Likewise, in Khata
no. 407, Roshan Singh and Devi Singh,
last mentioned along with Kanchhi Singh
S/o Ram Singh, were recorded. In Khata
No. 82A Khadak Singh, Chandrapal, Man
Singh, Shankar, Mahesh, sons of Chhitar
Singh, Devi Singh and Roshan Singh S/o
Udal Singh, Ramji Lal, Gyan Singh,
Rewati S/o Chhattar Singh were recorded.
In Khata no. 82 B, Khadak Singh,
Chandrapal, Man Singh, Shankar, Mahesh
S/o Chhitar Singh, Devi Singh and
Roshan sons of Udal Singh, Gyan Singh,
Rewati sons of Chattar Singh, Kundi
Singh S/o Ram Singh were recorded. This
is how the original tenure holder, Roshan
Singh's tenure was recorded over different
khatas in the basic year last mentioned.

4. The objections that were filed
under Section 9 A(2) by the petitioner
no.1, Amarwati before the Consolidation
Officer have been perused in original. It
figures at the top of the memorandum of
the objection dated 02.04.1991 that it
relates to Khata no. 407. It is claimed in
the objections that Roshan Singh had
executed a Will and testament dated
05.06.1987 that is his last Will, giving
rights to the petitioner, Amarwati in terms
of the said Will over khatas mentioned
there. She claimed a right to be recorded
1070 INDIAN LAW REPORTS ALLAHABAD SERIES
annexing a copy of the Will aforesaid as
the basis of her objections. The claim of
Smt. Amarwati was contested by the two
surviving sons of the testator, Roshan
Singh, that is to say, Kanchhi Singh and
Shishpal, respondent nos. 4 and 5 here,
who did not dispute the Will but contested
the Amarwati's claim with a case that she
had under the Will of Roshan Singh a
right to maintenance during her life time,
charged upon a specified share in the
khata in dispute. To that share too she had
a right to the usufruct to satisfy her right
to maintenance. Upon her death rights to
the said share in land would revert to
respondent nos. 4 and 5, free of the
widow's charge. She entered into a
matrimony of sorts described in local and
customary usage as karab. It was,
therefore, pleaded that by her aforesaid
act of entering into matrimony, she lost
her limited right of maintenance to the
revisionary heirs, going by the nature and
purpose of that right. On the basis of
aforesaid pleadings, the Consolidation
Officer framed the following four issues
(rendered
into
english
from
hindi
vernacular):

(I) Whether Amarwati is also
one of the heirs of the deceased Roshan
Singh?

(II) Whether Amarwati has remarried?

(III) What shares do the parties
have in the khatas?

(IV) Whether Gata nos. 492/1,
222 part of khata no. 405 is parti and
Gata No. 492/3 is a way?

4. The principal issues between
parties over which they went to trial
before the Consolidation Officer were
issue nos. 1 and 2, which were, as above
detailed, about the fact whether Smt.
Amarwati was one of the heirs of the
deceased, Roshan Singh and whether she
had re-married. In answering the said
issues, particularly, issue no. 1, the
Consolidation Officer went into the
question about the validity of the Will,
dated 05.06.1987 propounded by Smt.
Amarwati. This Will was not disputed
either by Amarwati or respondents nos. 4
and
5.
The
Consolidation
Officer,
however, held the Will not proved. While
deciding issue no. 2, the Consolidation
Officer held that Smt. Amarwati had not
remarried. He, accordingly, directed the
name of Kanchhi, Shishpal sons of
Roshan Singh and Amarwati widow of
Sahaspal to be recorded over Roshan
Singh's share in Khata nos. 172, 405, 407,
82A and 82B on the basis of intestate
succession. There is a detailed indication
of the shares of these three co-tenure
holders,
as
determined
by
the
Consolidation Officer by his judgment
and order dated 14.08.1995, passed in
Case No. 5756, in a schedule appended to
the said order.

5. Aggrieved by the Judgment and
order of the Consolidation Officer, dated
14.08.1995
last
mentioned,
Kanchhi
Singh alone preferred an appeal to the
Settlement Officer of Consolidation under
Section 11 (1) of the Act. In appeal, the
findings recorded by the Consolidation
Officer were affirmed and the appeal
dismissed vide judgment and order, dated
13.06.1997.

6. Aggrieved by the order of
Settlement
Officer
of
Consolidation,
Shishpal Singh and the other co-tenure
holders whose rights came to be decided
by the Settlement Officer, approving the
findings of the Consolidation Officer,
filed Revision No. 163 to the Deputy
1 All. Smt. Amarwati Vs. D.D.C. Bulandshahr And Others
1071
Director of Consolidation. The Deputy
Director of Consolidation went into the
validity of the Will propounded by the
petitioner, Smt. Amarwati which had been
rejected by the Consolidation Officer on
basis of his view of the evidence that
finds
eloquent
mention
in
the
Consolidation Officer's order. The Deputy
Director of Consolidation was at pains to
review the reasoning of the Consolidation
Officer. He also took note of argument
urged before him that there was no issue
framed by the Consolidation Officer
about the validity of the Will, that he
pronounced upon. The Deputy Director of
Consolidation held that the Consolidation
Officer had found the Will to be
suspicious, saying that one of the attesting
witness
one,
Khushi
Ram
in
his
deposition had said that he had signed all
pages, but his signature appeared on a
single
paper.
This
finding
of
the
Consolidation
Officer,
the
Deputy
Director of Consolidation has held to be
one based on an unwholesome view of the
evidence.
He
has
opined
that
the
Consolidation Officer should have read
the deposition of the attesting witness in
its entirety. It was observed in his analysis
of evidence by the Deputy Director of
Consolidation that discrepant statements
of this kind are commonplace. Even
otherwise, it was opined by the Deputy
Director of Consolidation that at the time
of registration of Will, the attesting
witness is required to sign multiple times.
It was recorded by the Revisional Court
that the revisionist filed the original Will
dated 05.08.1987. By the said Will, the
testator, Roshan Singh had bequeathed all
his movable and immovable property to
his two sons, Kanchi Singh and Shish Pal,
and had also made a bequest in favour of
his daughter-in-law, Smt. Amarwati. Two
attesting witnesses of Will were Khushi
Ram and Dhani Ram. Both were
examined to prove the Will. The Deputy
Director of Consolidation recorded a
finding that a perusal of the record shows
that both parties, who put in objections,
have affirmed the execution of the will.
The petitioner, Smt. Amarwati was found
to have said in her objections in paragraph
3(as recorded by the Deputy Director of
Consolidation) to the following effect:

"प्रभतिमिी नां0 -1 मृतक हो गये हैं। उन्होंने िमभिनी के
नमम िसीयत भलखम थम। जो समथ में सांलग्न है के अनुसमर िमभिनी कम
नमम कमगजमत में अांभकत होनम िमभहये।"
(emphasis by Court)

7.

The
Deputy
Director
of
Consolidation has then taken note of a
document, marked as paper 1, which is a
xerox copy of the said Will. The Deputy
Director of Consolidation has gone on to
say that the revisionist on the one hand,
and Kanchhi, in his objections on the
other, have specifically acknowledged
that succession to the property is one to be
recorded on the basis of the Will. Kanchhi
and Shish Pal in their reply dated
27.12.1991 vide paragraph Nos. 3 and 4
have admitted the factum of execution the
Will in question. The Deputy Director of
Consolidation has categorically said that
the Will gives Amrawati a right to
maintenance, and a sum of Rs. 2,000/-
each to the two minor daughters of
Sahaspal, that has been invested in
National Saving Certificates with a term
of six years. There is a very detailed
analysis by the Deputy Director of
Consolidation about the circumstances
attending the execution of Will, and the
depositions
made
by
the
attesting
witnesses, to prove its due execution, that
were considered to be dependable by the
DDC. The evidence on the basis of which
the Will was sought to be proved was
1072 INDIAN LAW REPORTS ALLAHABAD SERIES
examined by the Deputy Director of
Consolidation, and, the Will was held to
be proved. The Deputy Director of
Consolidation has unhesitatingly held the
Will proved, on the basis of a finding that
reads to the following effect (in Hindi
vernacular):-

"इस प्रकमर पांजीकृत भिलेख, भजसकम पांजीकरण
उसके अनुप्रममणन समक्षी खुशीरमम द्वमरम समभबत भकयम गयम और
उिय पक्षो ने अपनी-अपनी आपभियों में इसे स्िीकमरम है, की
अममन्य करने कम कोई औभित्य नहीं है।"

8. Thus, according to the Deputy
Director of Consolidation, the Will has
been accepted by both parties. Thereafter,
the Deputy Director of Consolidation has
taken into consideration the plaint dated
22.04.1987 giving rise to O.S. No. 194 of
1987 on the file of the learned MunsifIVth, Bulandshahr and the order dated
18.11.1987, passed in the said suit. It has
been recorded that a perusal of the plaint
giving rise to the suit shows that it was
filed on 22.04.1987, seeking relief of
permanent injunction restraining Roshan
Singh from alienating his property, the
subject matter of the dispute. The Will
was executed on 05.08.1987 and the suit
came to be decided 08.11.1987 which,
according to Sri Rahul Sahai, was
withdrawn. The said fact has also been
recorded by the Deputy Director of
Consolidation in his order that after the
execution of the Will, the suit was
withdrawn. This fact has been taken into
consideration by the Deputy Director of
Consolidation as circumstantial evidence
to point out that the Will, indeed was
genuine.
The
Deputy
Director
of
Consolidation has also been at pains to
consider
the
stand
taken
by
Smt.
Amarwati in the witness box, where she
has said that after the death of her
husband Sahpal, she did not marry
anyone. She has also said that the wife of
Kanchhi, Sushila is alive. She has also
said that she is not aware of any other
Will that her father-in-law has executed.
She has also been noted to have said that
prior to the present objections she had not
filed any other case; nor had she gone to
any Court. She also said that prior to her
deposition
in
Court
before
the
Consolidation Officer, she had never
appeared before any Court. She had never
thumb marked any document that she
remembers. The Deputy Director of
Consolidation from this evidence of
Amarwati, concluded that her stand is
contradictory, and that she is trying to
suppress facts.

9.

The
Deputy
Director
of
Consolidation has also taken into account
a compromise, dated 20.07.1994, where
the factum of execution of the will in
question has been acknowledged. The
Deputy Director of Consolidation has
concluded on a meticulous examination of
the evidence on record that the Will is
proved and the estate of Roshan Singh
would
devolve
by
testamentary
succession, under Section 169 of the Act.
It would be governed by the aforesaid
provision: whatever rights the widow has
acquired under the Will would be her's,
and even if she has remarried, there would
be no defeasance. On the aforesaid
conclusions, the Deputy Director of
Consolidation held that the orders of the
Courts below are not sustainable. He
allowed the revision setting aside the
orders of the Consolidation Officer and
the Settlement Officer of Consolidation,
dated
14.08.1995
and
13.06.1997,
respectively, and declared the rights, of
parties including the petitioners over
Khata No. 172, 405, 407, 82A and 82B,
in accordance with the Will dated
1 All. Smt. Amarwati Vs. D.D.C. Bulandshahr And Others
1073
05.06.1987, being the last Will and
testament of Roshan Singh. He has
indicated the shares of parties in various
khatas in terms of the aforesaid Will in a
scheduled, scripted at the foot of the
impugned order, dated 06.08.1997.

9. Heard Sri M.C. Singh, learned
counsel for the petitioners Nos. 2 and 3
who are purchasers from Smt. Amarwati.
No one has appeared on behalf of
Amarwati on any of the dates, when this
matter has been heard. Sri Rahul Sahai,
learned counsel appearing on behalf of
respondent No. 4 has been heard on his
behalf. No one has appeared on behalf of
Respondent No.5.

10. The submission of Sri M.C.
Singh, learned counsel for the petitioners
is that the order of the Deputy Director of
Consolidation is manifestly illegal and
flawed. He submits that this is so because
now, he does not wish to rely on the Will
which
brings
about
an
inequitable
distribution to the estate of Roshan Singh,
between his two sons and his widowed
daughter-in-law. He does not deny the
fact that this Will was propounded by
Smt. Amarwati in whose shoes, the
petitioner Nos. 2 and 3 have stepped but
says that in the peculiar facts and
circumstances, the disposition made by
the Will should be condemned as unfair
and modified in a more equitable manner.
It is also argued that the Will that he has
propounded, may be one thing but it is for
the Court to determine whether the Will is
proved in accordance with law. It is the
submission of Sri M.C. Singh, learned
counsel for the petitioners that the Will
has not been proved in accordance with
law. In this regard, he has invited the
attention of the Court to that part of the
finding of the Consolidation Officer,
where he finds the attesting witness
Khushi Ram to be not dependable, and,
therefore, the execution of the Will not
proved free from all clouds of doubt. It is
argued that so far as the Settlement
Officer of Consolidation is concerned, he
did not go into the validity of the Will and
hardly pronounced upon that; he put in a
judgment of passive affirmation, without
going through the entire evidence. Sri
M.C. Singh, learned counsel for the
petitioners criticized the judgment of the
Deputy Director of Consolidation on
ground that being a Court of Revision, it
was not his province to undertake a
wholesome review of evidence and in that
exercise record a pure finding of fact
regarding the validity of Will, contrary to
that recorded by the Consolidation Officer
and affirmed by the Settlement Officer. In
support of his case, Sri M.C. Singh,
learned counsel for the petitioners relied
upon the decision of this Court in Ram
Karan Shukla Vs. Deputy Director of
Consolidation, Fatehpur and others
reported in 2001 (92) R.D. 695, where
this Court has held that the Deputy
Director of Consolidation, cannot act as a
Consolidation Officer and substitute his
own findings. The Deputy Director of
Consolidation is a Court of Revision. In
Ram Karan Shukla(supra) it has been
held thus in para 4:

4. "On the other hand, learned
counsel for the contesting respondents
supported the validity of the orders
passed by the Deputy Director of
Consolidation. It was urged that the
finings recorded by the Deputy Director
of Consolidation were based on relevant
evidence on the record. They were all
findings of fact, which could not be
interfered with by this Court under Article
226 of the Constitution of India.
1074 INDIAN LAW REPORTS ALLAHABAD SERIES

I
have
considered
the
submissions made by learned counsel for
the parties and also perused the record.

X X X

From a reading of the aforesaid
statutory provision, it is apparent that the
Deputy Director of Consolidation may
send for the record of any case or
proceedings decided by the authorities
below to satisfy himself as to the
regularity of the proceedings, or as to the
correctness, legality or propriety of any
order other than interlocutory orders
passed by the authorities below. It is,
thus, apparent that if the proceedings
taken or orders are found irregular or the
orders passed by the authorities below
are found to be illegal, incorrect or
improper,
the
Deputy
Director
of
Consolidation can set aside the said
proceedings or order and can allow a
revision. In the present case, the requisite
findings have not been recorded by the
Deputy Director of Consolidation. It has
not been held that the proceedings held by
the authorities below were in any manner,
irregular or the orders passed by them
were illegal, incorrect or improper. He
has acted wholly illegally and arbitrarily
in observing that the chaks of the parties
were liable to be exchanged. The Deputy
Director of Consolidation can not act as
the Consolidation Officer. He cannot
substitute his findings for the findings
recorded by the authorities below as a
matter of course."

11. In addition, reliance has been
placed on another decision of this Court
in Smt. Bechna Vs. Deputy Director of
Consolidation, Varanasi and others
2001 (92) R.D. 693, where this Court to
the same effect has held that the Deputy
Director of Consolidation is a Court of
Revision, who cannot re-appreciate and
reappraise evidence on merits, taking a
view contrary to what the two Authorities
of fact below have held. In Smt.
Bechna(supra), this Court has held in
para 7 of the report, thus:

"7. Smt. Bechna, as stated
above, claimed that she was in possession
over the land in dispute since the sale
deed was executed in her favour on
13.11.1956 by respondent no. 2. Her
name was also mutated in the revenue
papers after following the procedure
prescribed under the law, therefore, she
was entitled to retain the land in dispute.
In the objection filed by the respondent
no. 2, the validity of the sale deed was not
challenged by the respondent no. 2. It was
also not pleaded that he was minor at the
time
the
sale
deed
was
executed,
therefore, he had no right to lead
evidence contrary to his pleadings, that at
the time of execution of sale deed in
question he was minor inasmuch as it is
well settled in law that no amount of
evidence shall be admissible in the
absence of pleadings. The evidence led by
respondent no. 2 to the effect that he was
minor at the time of execution of sale deed
was, thus, inadmissible in evidence.
However, in case, the Deputy Director of
Consolidation felt that the findings
recorded
by
the
Settlement
Officer
Consolidation, for any reason, were not
correct, he could upset the findings and
remand the case for decision afresh to the
Settlement Officer Consolidation. He had
no jurisdiction to substitute his own
findings for the findings recorded by the
Settlement Officer Consolidation on the
questions of facts after re-appreciating
and re-appraising on the evidence on
record, which was relied upon by the
Settlement Officer Consolidation. The
submission made by learned counsel for
1 All. Smt. Amarwati Vs. D.D.C. Bulandshahr And Others
1075
the contesting respondent, to the contrary,
therefore, cannot be accepted. In may
opinion, the writ petition is liable to be
allowed and the case is liable to be
remanded to the Deputy Director for
Consolidation for decision afresh in the
light of the observations made above and
in accordance with law."

12. Further reliance has also been
placed by Sri M.C. Singh, learned counsel
for the petitioners upon the decision of
this Court in Ram Adhar and others Vs.
Assistant Director of Consolidation,
Banda and others 2003 (94) RD 697,
where also it is held that the Deputy
Director of Consolidation, cannot act as
the
Settlement
Officer
or
the
Consolidation Officer. It was held that the
jurisdiction of the Deputy Director of
Consolidation under Section 48 of the Act
is limited and can be exercised within the
four corners of the Act alone. It was held
in Ram Adhar and others (supra) thus:

"7. From a reading of the
aforesaid section, it is clear that the
jurisdiction of the Deputy Director of
Consolidation under the aforesaid section
is limited. He can interfere in the ordeers
passed by the authorities below if the
findings recorded by them are found to be
incorrect, illegal or improper, but he has
got no jurisdiction to interfere with the
orders passed by the Settlement Officer,
Consolidation if the findings recorded by
him are not found to be bad in law. The
Deputy
Director
of
Consolidation
nowhere held that the findings recorded
by the Settlement Officer Consolidation
were in any manner illegal. He has
actually reappraised the entire evidence
and substituted his own findings for the
findings recorded by the Settlement
Officer Consolidation which is, as stated
above, not permissible under the law. A
reference in this regard may be made to
the decision of the Apex Court in the case
of Gaya Din vs. Hanuman Prasad, and
the decision of this Court in the case of
Ram Karan Shukla v. Deputy Director of
Consolidation and others.

8. In the aforesaid decisions, it
has been ruled by the Apex Court and this
Court that the Deputy Director of
Consolidation
can
not
act
as
the
Consolidation Officer or the Settlement
Officer Consolidation and he can exercise
the power within the four corners of
section 48 of the Act."

13. In order to further buttress his
point, the decision of this Court on
which Sri M.C. Singh, learned counsel
for
the
petitioners
further
placed
reliance is Jangi Lal Vs. Deputy
Director of Consolidation, Allahabad
and others 2002 (93) R.D. 35. It was
held there that the limitation on the
powers of the Deputy Director of
Consolidation as a Court of Revision
did not permit him to substitute his own
findings for those of the Authorities
below, though he could set aside illegal
findings or those manifestly erroneous.
After a review of authority on the point
that was then ruling, it has held in Jangi
Lal (supra) thus:

"7. By this Court, it has been
consistently held that in exercise of
powers under Section 48 of the Act if the
Deputy Director of Consolidation comes
to the conclusion that the findings
recorded by the authorities below, i.e., the
Settlement Officer, Consolidation or the
Consolidation Officer were illegal or
Irregular or improper or incorrect, he
could set aside the said findings after
1076 INDIAN LAW REPORTS ALLAHABAD SERIES
reappraisal of the evidence, but he could
not substitute his own findings. A
reference in this regard may be made to
the decisions of this Court in case of Ram
Karan Shukla (supra) and another case of
Smt. Bechna (supra). So far as the
decision of the Supreme Court in
Gayadin's case is concerned, the Apex
Court in paragraph Nos. 11, 12 and 13
was pleased to observe/hold as under :

" (quoted part omitted)".

From the fact of Gayndin's case,
it is evident that the Deputy Director of
Consolidation allowed the revision and
remanded the case to the Settlement
Officer, Consolidation vide order dated
6.7.1971.
The
Settlement
Officer,
Consolidation by order dated 22.9.1973
allowed the appeal. Thereafter, the
Deputy Director of Consolidation set
aside the order passed by the Settlement
Officer, Consolidation and allowed the
revision
by
order
dated
7.4.1975.
Subsequently, the order passed by the
Deputy Director of Consolidation was set
aside by the High Court in exercise of the
power
under
Article
226
of
the
Constitution of India and the order passed
by the Settlement Officer, Consolidation
was restored. Challenging the validity of
the order of the High Court. Civil Appeal
No. 191 of 1991 was filed in the Supreme
Court which was dismissed by the
Supreme Court by judgment and order
dated 27.11.2000. Thus, ultimately, the
order passed by the Settlement Officer,
Consolidation, dated 22.9.1973, was
upheld. The question as to whether the
Deputy Director of Consolidation had the
jurisdiction to substitute his own findings
for
the
findings
recorded
by
the
Settlement Officer, Consolidation was
neither
raised
before
it
nor
was
considered by the Supreme Court in the
said decision. From the reading of the
judgment of the Apex Court, it is apparent
that the view taken by the said Court is
that the Deputy Director of Consolidation
could set aside the findings of fact if they
were found to be perverse or against the
weight of evidence on record but it has
not been held that after setting aside those
findings,
the
Deputy
Director
of
Consolidation himself could substitute his
own findings. Therefore, the submission
made by the learned counsel for the
contesting respondent cannot be accepted.
In the cases arising out of the provisions
where
phraseology
similar
to
the
phraseology used in Section 48 of the U.
P. Consolidation of Holdings Act came to
be considered. For example. Section 25 of
the Provincial Small Cause Courts Act,
this Court consistently held that the
revisional court has no jurisdiction to
substitute its own findings for the findings
recorded by the original or the appellate
authority. A reference in this regard may
be made to a Division Bench decision of
this Court in Laxmi Kishore and others v.
Har Prasad Shukla 1979 ACJ 473 wherein
it was ruled as under :

15. If it finds that there is no
evidence to sustain a finding on a
particular issue of fact, it can Ignore that
finding. Same will be the case where the
finding is based only on inadmissible
evidence. In such cases the Court will be
Justified in deciding the question of fact
Itself, because the evidence is all one
way. No assessment is needed. The Court
can also decide the revision if only a
question of law or some preliminary point
of law viz., validity of notice, is sufficient
for its decision.

16. But, if it finds that a
particular finding of fact is vitiated by
an error of law, it has power to pass
such order as the justice of the case
requires ; but it has no jurisdiction to
1 All. Smt. Amarwati Vs. D.D.C. Bulandshahr And Others
1077
reassess or reappraise the evidence in
order to determine an issue of fact for
Itself. If it cannot dispose of the case
adequately without a finding on a
particular issue of fact, it should send the
case back after laying down proper
guidelines. It cannot enter into the
evidence, assess it and determine an issue
of fact.

17. Our answer to the question
referred to us is that in the state (sic)
circumstances, the revisional court has no
power to consider the evidence for itself
in order to determine an issue of fact. The
proper course is to remand the case to the
trial court."

14. It is also argued by learned
counsel for the petitioners that the
findings of the Consolidation Officer
which are very substantial, have not been
specifically set aside by the Deputy
Director of Consolidation and in the
absence of that being done, the impugned
judgment could not have been passed,
disturbing the two Authorities below. In
support of his contention on this point, he
has relied upon a decision of this Court in
Nand Kishore and others Vs. Deputy
Director of Consolidation, Varanasi
and others 2005 (98) R.D. 675, where it
was held:

"10. A perusal of the judgment
of the Deputy Director of Consolidation
clearly shows that he has not set aside the
findings of the Consolidation Officer and
the Settlement Officer Consolidation.
Without
setting
aside
the
findings
recorded by the Consolidation Officer
and the Settlement Officer Consolidation
he has erroneously held that the land of
Khata Nos. 4 and 221 were acquired
before partition of the family. He has
completely ignored the oral evidence
which
was
relied
upon
by
the
Consolidation Officer and the Settlement
Officer Consolidatin. The findings of the
Deputy Director of Consolidation with
regard to these two khatas, as a matter of
facts, are based on no evidence and thus
cannot be sustained."

15. In support of his contention that
was raised earliest in assail of the
impugned judgment passed by the Deputy
Director of Consolidation that Will was
not proved free from all doubts by the
attesting witness, Sri M.C. Singh, learned
counsel for the petitioners has relied on a
decision of their Lordship of Supreme
Court
in
Balathandayutham
and
anothers Vs. Ezhilarasan reported in
2010 (110) RD 412. In the said decision,
it has been held thus:

"6. At this juncture, the case
made out by the plaintiff-respondent is
very relevant. Plaintiff's case is that his
father, the testator, went to a temple for
attending a function and from there
testator was taken by the 1st appellant to
Cuddalore and coming to know this fact
the plaintiff-respondent went to the house
of the 1st appellant and the plaintiffrespondent went there and took the
testator back to his house at Villupuram
where he was staying all these years and
where he ultimately died. Therefore, both
the subsequent Will, namely, Ex.B-19 and
Ex. B-20 were allegedly executed by the
testator a couple of weeks before his
death and when he was made to stay in
the house of the 1st appellant. It appears
that the attestors of both the aforesaid two
Wills were all of Cuddaiore and were
strangers to the family. Those two Wills
surfaced only at the time when the 1st
appellant gave his written statement in
1994 in the suit filed by the plaintiff-
1078 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent. According to our judgment,
these
are
suspicious
circumstances
surrounding Ex. B-19 and Ex. B-20.

8. This Court also thinks that in
view of the discussion made hereinabove
that both Ext. B-19 and Ext. B-20 are
surrounded
by
various
suspicious
circumstances. When a will is surrounded
by suspicious circumstances, the person
propounding the will has a very heavy
burden to discharge. This has been
authoritatively explained by this Court
inH.
Venkatachala
Iyengarv.B.N.
Thimmajamma[AIR 1959 SC 443] . P.B.
Gajendragadkar, J. (as His Lordship then
was) in para 20 of the judgment, speaking
for
the
three-Judge
Bench
inH.
Venkatachala[AIR 1959 SC 443] held
that in a case where the testator's mind is
feeble and he is debilitated and there is
not sufficient evidence as to the mental
capacity of the testator or where the
deposition in the will is unnatural,
improbable or unfair in the light of the
circumstances or it appears that the
bequest in the will is not the result of the
testator's free will and mind, the court
may consider that the will in question is
encircled by suspicious circumstances.

11. Insofar as the execution of
the will is concerned, under Section 63 of
the Succession Act, 1925 it has to 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
acknowledgment
of
his
signature or mark, or of 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 the Evidence Act,
1872 further provides that if a document
is required by law to be attested it shall
not be used as an 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 is
capable of giving evidence. There is a
proviso under Section 68 but we are not
concerned with the proviso here.

12.
Commenting
on
these
provisions, this Court in H. Venkatachala
[AIR 1959 SC 443] laid down that Section
68 deals with the proof of the execution of
the document required by law to be
attested; and it provides that such a
document shall not be used as an
evidence until one attesting witness at
least has been called for the purpose of
proving its execution. These provisions
prescribe the requirements and the nature
of proof which must be satisfied by the
party who relies on a document in a court
of law. It was further held that Section 63
of the Succession Act requires that the
testator shall sign or affix his mark to the
will or it shall be signed by some other
person in his presence and by his
direction and that the signature or mark
shall be so made that it shall appear that
it was intended thereby to give effect to
the writing as a will. This section also
requires that the will shall be attested by
two or more witnesses as prescribed.
Thus the question as to whether the will
set up by the propounder is proved to be
the last will of the testator has to be
decided in the light of these provisions.
[see page 451]"

16. Sri Rahul Sahai, learned counsel
appearing for respondent No.4 on the
other hand contended that the present case
1 All. Smt. Amarwati Vs. D.D.C. Bulandshahr And Others
1079
has arisen in a scenario that has a major
difference with a case where one party
propounds the Will and other disputes it.
Here is a case where both the parties have
propounded the Will. Petitioner no. 1,
whose interest is now represented by
petitioner Nos. 2 and 3 has made the Will
in question, the basis of her objections
filed under Section 9-A (2). She has relied
on the Will to claim her right in the estate
of her deceased father-in-law. She has all
through stood by the Will, but after the
judgment of the Revisional Court, has
changed stance to assail it. He submits
that she has possibly found the Will to be
not a profitable bargain. He submits that
this kind of a shifting stand is not at all
countenanced by the law, as it militates
against one of the most fundamental
doctrines that frowns upon approbation or
re- approbation by a party. In support of
the aforesaid proposition, he relies upon a
decision of the Supreme Court in Suzuki
Parasrampuria Suitings Pvt. Ltd. Vs.
Official
Liquidator
of
Mahendra
Petrochemicals Ltd. (In Liquidation)
and others 2019 (143) RD 307, where
their Lordships dealing with the question
of a litigant taking contradictory stands,
have held:

"12. A litigant can take different
stands at different times but cannot take
contradictory stands in the same case. A
party cannot be permitted to approbate
and reprobate on the same facts and take
inconsistent
shifting
stands.
The
untenability of an inconsistent stand in the
same case was considered in Amar Singh
v.Union of India [Amar Singhv.Union of
India, (2011) 7 SCC 69 : (2011) 3 SCC
(Civ) 560] , observing as follows: (SCC p.
86, para 50)

"50. This Court wants to make it
clear that an action at law is not a game
of chess. A litigant who comes to court
and invokes its writ jurisdiction must
come with clean hands. He cannot
prevaricate
and
take
inconsistent
positions."

13.A similar view was taken
inJoint Action Committee of Air Line
Pilots' Assn. of Indiav.DGCA[Joint Action
Committee of Air Line Pilots' Assn. of
India v.DGCA, (2011) 5 SCC 435] ,
observing: (SCC p. 443, para 12)

"12. The doctrine of election is
based on the rule of estoppel-the principle
that one cannot approbate and reprobate
inheres in it. The doctrine of estoppel by
election is one of the species of estoppels
in pais (or equitable estoppel), which is a
rule in equity. ... Taking inconsistent pleas
by a party makes its conduct far from
satisfactory. Further, the parties should
not blow hot and cold by taking
inconsistent
stands
and
prolong
proceedings unnecessarily."

17. Sri Rahul Sahai, learned counsel
for the respondent No.4 further submits
that one of the objections to the impugned
order is that whatever has been said about
the Will is without framing an issue about
it.