# Smt. Madhuri Devi v. Addl. Collector Judicial Barabanki & Ors

- **Citation:** (2025) 12 ILRA 288
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-12-11
- **Case number:** Writ B No. 940 of 2018
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-madhuri-devi-v-addl-collector-judicial-barabanki-ors-52836
- **Pages:** 5

## Text

288 INDIAN LAW REPORTS ALLAHABAD SERIES
resignation during the pendency of the
petitioner's application, the competent
authority was obliged to assess the claim
afresh in light of the changed financial
condition. The rejection of the petitioner's
application solely on the ground that the
mother was employed on the date of death
of the deceased employee is therefore
legally unsustainable, being contrary to the
benevolent purpose of the scheme as well
as
the
settled
principles
governing
compassionate appointment.

15. If the order impugned would have
been passed, considering the petitioner's
application, prior to resignation of the
petitioner's mother, the case would have
been different but consideration of the
application after resignation of petitioner's
mother, places it in distinct situation,
wherein
the
petitioner's
claim
for
compassionate appointment ought to have
been considered.

16. This Court is of the considered
view that the respondent-authority was
required to assess the financial condition of
the petitioner's family existing at the time
of consideration of the pending application
for compassionate appointment. Once the
petitioner's mother had resigned and the
family was left without any meaningful
source of income, denial of the petitioner's
claim on the sole ground that she
(petitioner's mother) was employed at the
time of death of her husband (petitioner's
father) is arbitrary, legally untenable, and
defeats
the
very
object
of
the
compassionate appointment scheme. Thus,
the impugned order is unsustainable.

17. The mere fact that one dependent
was employed is not conclusive, and
compassionate appointment cannot be
denied if the employment was insufficient
to alleviate the financial crisis or if the
circumstances have subsequently changed.

18. In view of the above settled
proposition of law, the object and purpose
of the appointment made under the Rules,
1974, is frustrated by the order impugned
dated 26.07.2025, hence it is set aside. The
matter is remitted to respondent no. 3 to
reconsider the claim of compassionate
appointment of the petitioner, keeping in
mind the observations made in this order
and the fact that at present the petitioner's
mother is no longer in any Government
service. The respondent no. 3 shall pass a
fresh
order,
expeditiously,
preferably
within a period of three weeks from the
date of production of a certified copy of
this order.

19. The writ petition is accordingly
allowed.

20. No order as to costs.
----------
(2025) 12 ILRA 288
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 11.12.2025

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ B No. 940 of 2018

Smt. Madhuri Devi ...Petitioner
Versus
Addl. Collector Judicial Barabanki & Ors.
 ...Respondents

ISSUE FOR CONSIDERATION
Whether, in proceedings relating to proof of a
Will under Sections 63 of the Indian Succession
Act, 1925 and 68 of the Indian Evidence Act,
1872, an application for obtaining expert opinion
regarding the thumb impression/signature of the
12 All. Smt. Madhuri Devi Vs. Addl. Collector Judicial Barabanki & Ors.
289
testator can be entertained before examination
of the attesting witnesses.

HEADNOTE
Constitution of India, Art. 226 - Indian
Succession Act, 1925, S. 63 - Indian Evidence
Act, 1872, Ss. 68 & 73 - Proof of Will - Manner
in which a Will can be proved - Attestation by
two or more witnesses - Calling of at least one
attesting witness to prove execution - Thumb
impression/signature of testator - Comparison
under S. 73 of the Evidence Act - Invocation of
S. 73 only when sufficient doubt can be created
- Stage at which expert evidence can be sought
- Examination of attesting witnesses as precondition
-
Liberty
to
move
appropriate
application for production of the original Will -
Liberty to move appropriate application for
obtaining expert opinion after respondents have
adduced their evidence to prove the Will

HELD:
Will has to be proved by the person who
has relied/produced the Will and for
which purposes, in case the attesting
witnesses are alive, the same have to be
produced, who have to testify that the Will
was signed by the testator in their
presence. It is only when sufficient doubt
can be created in the mind of the trial court
by the petitioner with regard to the validity of
the Will that the provision of Section 73 of the
Evidence Act can be invoked, and the
discretion of the court would arise for
comparison
of
signatures/thumb
impressions. Only after the attesting
witnesses
are
examined
can
the
question
arise
with
regard
to
verification
of
signatures/thumb
impressions. In the present case, the
attesting witnesses were not examined
nor
produced
by
the
private
respondents,
and
therefore
the
threshold had not been crossed. Liberty
was
granted
to
move
an
appropriate
application for production of the original
Will on record, and further liberty was
granted that after the respondents have
adduced their evidence to prove the Will,
the petitioner would be at liberty to move
appropriate application for obtaining expert
opinion
on
the
signatures
thereon
in
accordance with law. (Paras 6 to 12) (E-5)
CASE LAW CITED

List of Acts
Constitution of India;
Indian Succession Act, 1925;
Indian Evidence Act, 1872;
U.P. Consolidation of Holdings Act, 1953.

List of Keyword
Proof of Will; Attesting witnesses; Section 68
Evidence Act; Section 63 Succession Act; Expert
opinion;
Thumb
impression;
Signature
comparison; Section 73 Evidence Act; Premature
application;
Consolidation
proceedings;
Interference under Article 226.

CASE ARISING FROM
Challenge to the orders passed by the
Consolidation Officer and Deputy Director
of Consolidation rejecting the petitioner's
application for obtaining expert opinion
regarding thumb impression/signature on
the Will.

Appearances for Parties
Advs For Petitioner: Vijai Bahadur Verma; Ajeet
Kumar; Ankit Pande; Rajat Rajan Singh
Advs For Respondents: C.S.C.; Jitendra Kr.
Pandey

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Shri Vijai Bahadur Verma,
learned counsel for the petitioner as well as
learned Standing Counsel for respondents
no. 1 and 2 and no one has put in
appearance on behalf of the private
respondents.

2. It has been submitted by learned
counsel for the petitioner that the present
dispute pertains to Khata No. 125 situated
at Gram Mohanpur, Pargana Dewa, Tehsil
Nawabganj, District Barabanki, which was
recorded in the name of Shyam Narayan @
Makka Lal and afer the death of Shyam
Narayan the land came to be recorded in
the name of his wife Badki. It is stated that
Badki, wife of Shyam Narayan had
290 INDIAN LAW REPORTS ALLAHABAD SERIES
executed a Will in favour of Avadh Bihari,
Ram Het, Kishan Bihari, Brij Bihari sons of
Deo Bux as well as the petitioner- Smt.
Madhuri Devi.

3. It has been submitted that with
regard to the succession of the said land
proceedings under 9-A (2) are still pending
before the Consolidation Officer. The
petitioner has all along assailed the validity
of the Will executed by Badki on
13.2.1981. Initially the petitioner has
approached this Court by filing a writ
petition being Writ Petition No. 9848 of
1989, which was dismissed by this Court
by means of judgment and order dated
28.03.1990. For the sake of convenience
the order passed by this Court is quoted
herein below:-

"
This
petition arises
from
mutation proceedings. It appears that on
the death of Smt. Barabanki mutation
proceedings have started. The petitioner
claims to be the daughter of Smt.
Barabanki and has sought mutation of her
name on the basis of succession. Opposite
parties 4 to 7 have claimed mutation on the
basis of will alleged to have been executed
by Smt. Barabanki. The will set up by
opposite parties 4 to 4 is not admitted by
the
petitioner.
The
petitioner's
case
appears to be that the alleged will is a
forged document. The petitioner made an
application
before
the
Additional
Tahsildar, Nawabganj, Barabanki seeking
permission to bring expert evidence on
record regarding the thumb impressions
contained on the will filed by opposite
parties 4 to 7. This application has been
rejected by the Additional Tehsildar with
the following observations-

"there is no provision for experts
opinion."

Against the order of Additional
Tahsildar, the applicant preferred revision
before the Collector who rejected the same
by order dated 19.7.1989. The Board of
Revenue has also rejected the petitioner's
revision through order dated 7.10.1989. In
paragraph 4 of its order the Board of
Revenue has observed that mutation
proceedings are of fiscal and summary
nature and are subject to decision in a
regular suit. With this observation of the
Board of Revenue no exception can be
taken. However, I am not inclined to
interfere at this stage because the petition
arises from an interlocutory order. If
opposite parties 4 to 7 fail to substantiate
the will petitioner will have no cause for
grievance against the impugned orders.

In view of the above the petition
is dismissed."

4. It has been submitted that the writ
petition was dismissed by this Court
observing that only application of the
petitioner for obtaining expert opinion with
regard to the thumb impression of the
testator was rejected which was an
interlocutory
order
and
therefore
considering that the matter was still
pending consideration before the revisional
authority, this Court has declined to
interfere in the matter.

5. It has been been submitted by
learned counsel for the petitioner that the
aforesaid dispute regarding the validity of
the Will has been raised by the petitioner
by filing suit under Section 229 B, which
also stood abated on commencement of the
consolidation proceedings. Subsequently
before the Consolidation Officer also the
petitioner had filed an application for
obtaining expert evidence with regard to
the thumb impression of the testator,
12 All. Smt. Madhuri Devi Vs. Addl. Collector Judicial Barabanki & Ors.
291
namely, Smt. Badki. The said application
has been rejected by means of the order
dated 12.6.2017. Against the said order the
petitioner has preferred a revision before
the Deputy Director of Consolidation,
which has also been rejected by means of
order dated 7.10.2017. The revisional
authority has noticed the fact that original
copy of the Will is not available on record.

6. The question gaining the attention
of this Court is with regard to the
application of the petitioner for obtaining
the expert opinion with regard tot he thumb
impression of Smt. Badki, who has
executed a Will on 13.2.1981. The manner
in which a Will can be proved in the Court,
has been provided in Section 63 of the
Succession Act and Section 68 of the
Indian
Evidence
Act.
The
necessary
ingredients for a Will provided under
Section 63 of the Succession Act where it
is provided that the testator shall sign or
affix some mark to the Will or it shall be
signed by some other person in his
presence and by his directions and the Will
shall be attested by two and more witnesses
each of whom had seen the testator sign or
affix his mark to the Will. The manner in
which such a Will has to be proved in the
court of competent jurisdiction is provided
under Section 68 of the Indian Evidence
Act, where it is provided that such a
document, which is required to be attested
shall not be used as an evidence until one
of the attesting witnesses at least has been
called for the purpose of proving it
execution, if the attesting witnesses are
alive and careful of keeping evidence.

7. Accordingly the Will has to be
proved
by
the
person
who
has
relied/produced the Will and for which
purposes in case the attesting witnesses
alive, same has to be produced, who has to
testify the Will was signed by testator in his
presence.

8. It is only when sufficient doubt can
be created in the mind of the trial court by
the petitioner with regard to the validity of
the Will only then provision of Section 73
of the Evidence Act can be invoked by the
petitioner and the discretion of the trial
court. In case the trial court is of the
opinion that there is certain doubts with
regard to the signature of the testator only
then the question arises for comparison of
the signature or any other mark affixed by
the testator on the said Will.

9. It is noticed that in the present case
the very threshold has also not been
crossed, in as much as, the attesting
witnesses have not been examined by the
trial court nor have been produced by the
private respondents. It is only after the
attesting witnesses are examined the
question has arisen with regard to the
verification of the signatures/ thumb
impressions in case the petitioner can
successfully indicate that the same are
doubtful.

10. Accordingly I find that the
repeated applications of the petitioner
before the various authorities at this stage
are
premature
and
certainly
at
the
appropriate stage such applications can be
adequately considered.

11. I find that the matter is still
pending before the Consolidation Officer
and a similar pryaer has been made by the
petitioner before this Court, was also
rejected
on
28.3.1990
in
mutation
proceedings.

12. In light of the above, this Court is
not inclined to interfere in the order
292 INDIAN LAW REPORTS ALLAHABAD SERIES
impugned in the present petition, therefore
the present petition is dismissed. However,
the liberty is granted tot he petitioner to
move an appropriate application before the
Consolidation Officer for production of the
original Will on record. Liberty is further
granted that after the respondents have
adduced their evidence to prove the Will
the petitioner at liberty to move appropriate
application for obtaining expert opinion on
the signatures thereon in accordance with
law..

13.
Subject
to
the
aforesaid
observations, the petition stands dismissed.
----------
(2025) 12 ILRA 292
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.12.2025

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Writ B No. 3195 of 2025

Abhinav Singh ...Petitioner
Versus
Board Of Revenue U.P. & Ors.
 ...Respondents

ISSUE FOR CONSIDERATION
Whether a person who is neither the lessor nor
the lessee, and is merely a co-applicant for
allotment of a Retail Outlet of Indian Oil, has
locus standi to seek cancellation of a private
lease deed executed under Section 94 of the
U.P. Revenue Code, 2006, by invoking Sections
104 & 105 of the Code read with Rule 103 of
the U.P. Revenue Code Rules, 2016.

HEADNOTE
Constitution of India, Art. 226 - U.P. Revenue
Code, 2006, Ss. 94, 95, 104, 105 & 144 - U.P.
Revenue Code Rules, 2016, Rr. 103 & 186 -
Private lease by bhumidhar - Locus standi -
Who can seek cancellation of private lease -
Exclusion of applicability of Ss. 104 & 105 to
leases under S. 94 by virtue of S. 105(e) -
Scope of proceedings under R. 103 - Distinction
between private lease and State lease - Person
aggrieved - Challenge by rival applicant for
Retail Outlet Dealership.
HELD:
Petitioner was a co-applicant for allotment of
Retail Outlet Dealership. Respondent no. 6
produced a lease deed dated 15.02.2023 and on
the basis of the said lease deed, Letter of Intent
was issued in favour of respondent no. 6 for
allotment of Retail Outlet Dealership. Petitioner
challenged
the
said
lease
deed
dated
15.02.2023 alleging that the lease was in
violation of Section 94 of the U.P. Revenue
Code, 2006, and, therefore, void in terms of
Section 104 of the Code read with Rule 103 of
the U.P. Revenue Code Rules, 2016. Objections
were filed, inter alia, raising the plea that the
petitioner had no locus standi to challenge a
private lease executed under Section 94 of the
Code. Held : Section 94 of Code, 2006
pertains to execution of private lease and
further Section 95 of Code, 2006 provides
the
provisions
of
cancellation
or
termination in case of dispute. Section
95(6)(e) of Code, 2006 clearly provides
that it can only be terminated by lesser or
lessee by a Bhumidhar on a mutually
agreed terms. So far as Sections 104 &
105 of Code, 2006 are concerned; Section
104 provides transfer in contravention of
this Code to be void and further Section
105 of Code, 2006 provides consequences
of transfer by bhumidhar in contravention
of this Code. Rule 103 of Rules, 2016
provides procedure to follow in case any
application is filed under Sections 104 or
105 of Code, 2006. Section 105(e) clearly
provides that provisions of this section
shall not apply to any lease made under
Section 94 of Code, 2006. Section 105(e)
clarify that provision of Section 105 of
Code, 2006 shall not be applicable to a
lease executed under Section 94 of Code,
2006 and in light of that, provision so
given in Rule 103 of Rules, 2016 would
also not be applicable. Ratio of Section 144
of Code, 2006 is also applicable for filing suit
for cancellation of lease deed. In absence of
claiming to be Bhumidhar or asami or any right
over the land in question, no suit for
cancellation of lease deed may be filed. Only