Neutral Citation No. - 2023:AHC:193842

A.F.R.

Court No. - 49

Case :- WRIT - B No. - 3357 of 2023

Petitioner :- Awadhesh Singh

Respondent :- State Of Uttar Pradesh And 5 Others

Counsel for Petitioner :- Punit Kumar Upadhyay

Counsel for Respondent :- C.S.C.,Pankaj Kumar Gupta,Satendra Bahadur

Yati

Hon'ble Syed Qamar Hasan Rizvi,J.

1. Heard Sri Arun Kumar Gupta, learned Senior Advocate assisted by Sri

P.K.Upadhyay, learned Counsel for the petitioner; Sri Satendra Bahadur

Yati, learned counsel for respondent no.2/caveator; Sri Anshul Nigam,

learned Standing Counsel for the State-respondent nos. 1, 4, 5 & 6 and Sri

Pankaj Kumar Gupta, learned Counsel for the Gaon Sabha- respondent

no.3.

2. With the consent of the learned counsel for the parties, this Court

proceeded to decide the present Writ Petition at the admission stage itself.

3. By means of the present writ petition, the petitioner has prayed for the

following relief:

“(I) to issue a writ, order or direction in the nature of certiorari quashing the

impugned judgment and order dated 31.7.2023 passed in Second Appeal No.

SA/1509/2022/Basti Computerised No. R-20221714001509 passed by the

Board of Revenue U.P. Lucknow (Annexure No. 17 to this writ petition)

(II) to issue a writ, order or direction in the nature of mandamus commanding

and directing the Sub Divisional Officer Harraiya, Basti, respondent no.5, to

proceed and comply the direction issued by judgement and order dated

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10.6.2022 passed by the Additional Commissioner (Administration), Basti

Division Basti (Annexure No.14 to this writ petition) within stipulated time as

may deem fit and proper in the interest of justice.

(III) to issue any other suitable writ, order or direction in the mature as this

Hon’ble Court may deem fit and proper to meet the ends of justice under the

facts and circumstances of the present case.

(IV) to award cost of writ petition to the petitioner.”

4. The relevant facts in brief, as narrated by the petitioner, in the writ

petition are that the petitioner and respondent no. 2 are siblings and their

father purchased an agricultural plot of land bearing khata No. 0006 Gata

No. 21M ad-measuring area 2.0510 Hectare, situated at village Pikaura

Sani, Tappa Nawai, Pargana Nagar Pashchim, Tehsil Harraiya, District

Basti. The father of the petitioner, namely, Ram Komal Singh died on

20.12.1985 and after his death, the respondent no. 2 claiming her right

over half of the property, on the basis of an unregistered WILL dated

24.1.1994, moved a mutation application dated 18.07.1994. The Naib

Tehsildar, Harraiya vide order dated 23.09.1994 allowed the aforesaid

application for mutation in favour of respondent no. 2, namely, Smt. Asha

Devi.

5. Against the aforesaid order dated 23.09.1994, the petitioner moved an

application for recall of the said order on 17.10.1996. The said recall

application was rejected vide order dated 03.03.2000 passed by the Naib

Tehsildar, Gaur (Harraiya), District Basti.

6. Aggrieved by the said order dated 03.03.2000, the petitioner preferred

an Appeal No. 38 of 2001 (Awadhesh Singh versus Asha Singh) under

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Section 210 of the U.P. Land Revenue Act, 1901, before the Sub

Divisional Officer, Harraiya (respondent no. 5). The said Appeal was

dismissed vide order dated 21.08.2001.

7. Thereafter, the petitioner filed a Revision under Section 219 of the U.P.

Land Revenue Act, 1901, before the Divisional Commissioner, Basti

Division, Basti which was also dismissed vide order dated 20.01.2005

passed by the Additional Commissioner (Administration), Basti.

8. The petitioner preferred a Writ Petition bearing W.P. No. 13751 of

2005, assailing the aforesaid orders passed by the Revenue Courts. This

Court vide judgment and order dated 04.08.2017 declined to exercise its

writ jurisdiction to interfere with the orders passed by the Revenue Courts

in summary proceedings. However, while dismissing the said Writ

Petition vide Order dated 04.08.2017, this Court left it open to the parties

to get their rights determined before the Competent Court of Law in

regular proceedings. Paragraph no. 43 of the aforesaid order passed by this

Court is extracted hereinbelow,

“43. I do not find any good ground to interfere in the orders passed by the

Revenue Courts, moreso, when it is settled law that this Court should not

interfere in writ jurisdiction in the orders passed in summary proceedings by

Revenue Courts. It is always open to the parties to get their rights determined

before the Competent Court of Law in regular proceedings.”

9. Consequently, the petitioner filed a Suit under Section 144 of the U. P.

Revenue Code, 2006 which was registered as Case No. 91 of 2017 and

later on numbered as Case No. 4481 of 2017 (Computerised No. T-

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2017171453014481), before the Sub Divisional Officer, Harraiya, District

Basti (respondent no. 5); claiming his rights on the basis of being the only

son and male descendent of Late Ram Komal Singh who was the owner of

land in question.

10. In the said case, an application was also moved by the petitioner on

22.09.2021, praying for the examination of genuineness of testator’s

signature, namely, Late Ram Komal Singh, on the Will in dispute dated

24.01.1984 propounded by respondent no.2; from the handwriting expert,

with the specimen of the signature of the testator.

11. The Court of learned Sub Divisional Officer (respondent no. 5)

dismissed the said Suit vide judgment and order dated 08.10.2021 and

rejected the aforesaid application dated 22.09.2021 as unwarranted.

12. Against the aforesaid judgment and order dated 08.10.2021 passed in

the Suit, bearing Case No. 4481 of 2017 (Computerised No. T-

2017171453014481), the petitioner preferred an appeal bearing Appeal

No. 629 of 2021 under Section 207 of the U.P. Revenue Code, 2006,

before the learned Court of Commissioner, Basti. The Additional

Commissioner (Administration), Basti allowed the said Appeal vide Order

dated 10.06.2022 by setting aside the judgment and decree dated

08.10.2021 and remanded the matter to the learned Court of Sub

Divisional Officer, Harraiya (respondent no.5) with the direction to decide

the matter afresh, on merits, after affording adequate opportunity of

hearing and leading evidence; to both the parties, in respect of their title

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and possession. The said Appellate Court of Commissioner while

remanding the matter vide order 10.06.2022 made a categorical

observation that it would be legitimate for the trial court to decide the

matter only after getting the signature of Late Ram Komal Singh duly

verified by an expert.

13. Assailing the aforesaid judgment and order dated 10.06.2022, the

respondent no. 2 preferred a Second Appeal under Section 208 of the U.P.

Revenue Code, 2006, before the learned Board of Revenue, U.P. at

Lucknow (respondent no.6) which was registered as Second Appeal No.

SA/1509/2022/Basti.

14. The learned Board of Revenue (respondent no. 6) vide judgement and

order dated 31.07.2023 allowed the aforesaid Second Appeal and set-aside

the judgment and order dated 10.06.2022 passed by the Additional

Commissioner (Administration), Basti.

15. Being aggrieved by the aforesaid judgment and order dated

31.07.2023, the petitioner herein preferred the instant writ petition praying

for a Writ in the nature of Certiorari quashing the impugned judgment and

order dated 31.07.2023 passed by the Board of Revenue U.P., Lucknow

(respondent no.6) in Second Appeal No. SA/1509/2022/Basti.

16. Assailing the impugned judgment and order dated 31.07.2023, the

contention of Sri Arun Kumar Gupta, learned Senior Advocate appearing

on behalf of the petitioner is as under:

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16.1. It has been asserted by the learned Senior Counsel that the learned

Board of Revenue (respondent no. 6) allowed the Second Appeal vide the

impugned judgment and order dated 31.07.2023 without formulating ‘any

substantial questions of law’ and thereby acted in utter disregard to the

provisions of Section 208(2) of the U.P. Revenue Code, 2006 read with

Section 100 of the Code of Civil Procedure, 1908. In support of his

submission, the learned Senior Counsel has relied upon the judgment

dated 07.08.2023 passed by the Hon’ble Supreme Court in the case of

Bhagya Shree Anant Gaonkara versus Narendra alias Nagesh Bharma

Holkar and others, Civil Appeal No. 4935 of 2023 wherein the Hon’ble

Apex Court has been pleased to hold that under section 100 of the Code of

Civil Procedure, 1908, the High Court cannot admit regular second appeal

without framing substantial question of law.

16.2. Further, he submitted that the request made by the petitioner to the

learned Court of Sub Divisional Officer (respondent no.5) regarding the

verification of genuineness of the signature on the Will dated 24.01.1984

by an expert was illegally denied by the learned Sub Divisional Officer

(respondent no.5) vide order dated 08.10.2021 by ignoring the settled

legal position on the said issue. He narrates that it is this finding of the

learned Sub Divisional Officer (respondent no.5) which was set aside vide

order dated 10.06.02022 passed by the Court of learned Additional

Commissioner (Administration), Basti wherein it was observed that it

would be legitimate for the trial court to decide the matter only after

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getting the signature of Late Ram Komal Singh verified by an expert. It is

the case of the petitioner that the learned Board of Revenue (respondent

no. 6) has committed a manifest error of law while holding that

verification of the genuineness of the signature of the testator in the

alleged Will is not required. In support of this contention, he has relied

upon the judgment passed by the Hon’ble Supreme Court in the case of H.

Venkatachala Iyengar versus B.N. Thimmajamma and others, reported in

AIR 1959 SC 443 and Meena Pardhan and Others versus Kamala Pradhan

and Another, Civil Appeal No. 3351 of 2014 decided on 21.09.2023.

16.3. The next submission on behalf of the petitioner is that the Board of

Revenue (respondent no.6) while passing the impugned order dated

31.07.2023, has committed manifest error amounting to perversity by

holding that the alleged unregistered Will was validated by this Court vide

judgment and order dated 04.08.2018 passed in Writ- C No.- 13751 of

2005.

16.4. Further, the learned Senior Counsel submits that the Board of

Revenue has committed serious error of law by taking the mutation

proceedings as a basis of the genuineness of the Will in dispute, while

deciding the Second Appeal arising out of regular Suit filed under section

144 of the U.P. Revenue Code, 2006, despite the glaring fact that only the

mutation proceedings in the instant case had been concluded by the

judgment and order dated 04.08.2017 passed by this Court in Writ-C No.

13751 of 2005.

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17. Refuting the arguments made on behalf of the petitioner, Sri Satendra

Bahadur Yati, learned Counsel appearing on behalf of the respondent no.2

advanced the following submissions:

17.1. Sri Yati, learned Counsel for the petitioner has vehemently argued

that although, no substantial question of law was framed by the learned

Board of Revenue (respondent no.6), yet, on finding obvious and blatant

perversity in the Order dated 10.06.2022 passed by the Additional

Commissioner (Administration), Basti, it became incumbent upon the

Board of Revenue (respondent no. 6) to set-aside the said illegal order

dated 10.06.2022 and in the facts of the present case, there needs no

interference by this Court under Article 226 of the Constitution of India,

with regard to the impugned order dated 31.07.2023 passed by the Board

of Revenue (respondent no. 6).

17.2. The learned Counsel further defended the findings recorded by the

Board of Revenue (respondent no. 6) which held the Will in question to be

a valid and genuine document on the basis of the orders passed by the

Revenue Courts that attained finality vide judgment and order dated

04.08.2017 passed by this Court in Writ Petition No. 13751 of 2005 and

contended that it is a well-established principle of law that if the Will is

duly signed, rational on the face of it and genuinely appears to be duly

executed, it is presumed, in the absence of evidence to the contrary, to be

valid. He strongly contended that the signature on the Will is a substantial

proof of its validity, till the contrary is proved by the party alleging the

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said Will to be invalid on the basis of disputed signature of the testator

and as such the onus, if any, for proving that the Will to be invalid, falls

upon the petitioner and not the private-respondent no.2.

18. Except the above, no other point in argument has been pressed by the

learned counsels for the parties during the course of hearing.

19. Having heard the learned counsels for the parties; the moot point for

consideration by this Court in the instant case is that while entertaining the

Second Appeal No. SA/1509/2022 (Asha Devi versus Awadesh Singh),

under Section 208 of the U.P. Revenue Code, 2006, was it mandatory for

the learned Board of Revenue (respondent no.6) to frame ‘substantial

question of law’.

20. At the very outset, it is imperative to reiterate the law on the subject of

Appeal. It is a well-settled legal position that the right of appeal stems

from a statute and it is the statute that sets the scope of jurisdiction of a

Court of law to hear an Appeal. In the present case, the scope of Second

Appeal has been set in by Section 208 of the U.P. Revenue Code, 2006.

For a ready reference, the same is quoted below,

“208. Second Appeal (1) Where in any suit, application or proceeding

specified in column 2 of the Third Schedule, any final order or decree is passed

in any first appeal filed under section 207, and any party to such appeal is

aggrieved by it, such party may prefer a second appeal to the Court specified

against it column 5.

(2) The Appellate Court shall not entertain a second appeal unless it is satisfied

that the case involves a substantial question of law.

(3) The period of limitation for filing a second appeal under this section shall

be ninety days from the date of the order or decree appealed against.”

(emphasis supplied)

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21. From the bare reading of the above quoted Section 208 of the U.P.

Revenue Code, 2006, it is abundantly clear that the jurisdiction of the

Appellate Court to entertain Second Appeal is embedded with the

condition that the case before it involves a ‘substantial question of law’.

The difference between the substantial questions involved in the first and

the second appeal has been discussed by the Hon’ble Supreme Court in

the case of Bhagya Shree Anant Gaonkara versus Narendra alias Nagesh

Bharma Holkar and others (Supra). The relevant paragraph of the same is

extracted hereinbelow,

“…This would clearly indicate that the First Appellate Court is the final court on

questions of facts but only if there is any substantial question of law, a second appeal

could be considered and raised by the High Court and such substantial question(s) of

law ought to be answered.”

22. It is noteworthy that the Hon’ble Apex Court in the case of Municipal

Committee, Hoshiarpur versus Punjab SEB reported in (2010) 13 SCC

216 has laid stricter emphasis upon the inherent limitations on the

jurisdiction of second appellate court by cautioning against the expansive

exercise of its jurisdiction. For ready reference, paragraph 16 of the said

judgment is quoted hereinbelow:

“16. … A second appeal cannot be decided merely on equitable grounds as it

lies only in a substantial question of law, which is distinct from substantial

question of fact. The court cannot entertain a second appeal unless a

substantial question of law is involved, as the second appeal does not lie on

the ground of erroneous findings of fact based on an appreciation of the

relevant evidence. The existence of substantial question of law is a condition

precedent for entertaining the second appeal; on failure to so, the judgment

cannot be maintained.”

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23. In furtherance of the aforesaid restriction placed on second appellate

courts; the Hon’ble Supreme Court in the case of Arulmighu Nellukadai

Mariamman Tirukkoil versus Tamilarasi (Dead) by LRS. reported in AIR

2019 WC 3027 made it obligatory upon the second appellate court to

either formulate a substantial question of law or to dismiss a second

appeal that lack substantial question of law in limine, without service of

any notice to the respondent(s) after recording a finding in the dismissal

order that the appeal does not involve any substantial question of law, by

recording reasons in support of the dismissal order.

24. Further, the Hon’ble Supreme Court in the case of Gobind Raju versus

Mariamman reported in AIR 2005 SC 1008; Kashmir Singh versus

Harnam Singh reported in AIR 2008 SC 1749, Damodar Lal versus

Sohan Devi and others reported in (2016) 3 SCC 78 and in a series of

decisions has been pleased to clarify that in order to constitute a

‘substantial question of law’, the question should be debatable, not

previously settled by law or by any binding precedent and must have a

material bearing on the decision of the case. A perversity of fact recorded

by the lower court or the ignorance of certain fact shall not constitute a

substantial question of law.

25. In addition to this, a ‘substantial question of law’ is not just a legal

point on which there may be multiple opinions or one which is of general

importance but a question of law which is involved in the case as between

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the parties where there is room for difference of opinions on it or where

the court thinks it necessary to deal with that question at some length. This

proposition finds support from the judgment passed by the Hon’ble

Supreme Court in the case of Hero Vinoth versus Seshammal reported in

(2006) 5 SCC 545, wherein the Hon’ble Court was pleased to hold as

follows:

“21… However, it is clear that the legislature has chosen not to qualify the

scope of “substantial question of law” by suffixing the words “of general

importance” as has been done in many other provisions such as Section 109 of

the Code or Article 133(1)(a) of the Constitution. The substantial question of

law on which a second appeal shall be heard need not necessarily be a

substantial question of law of general importance.”

26. Moreover, to meet the condition “unless it is satisfied that the case

involves a substantial question of law” as provided under Section 208(2)

of the U.P. Revenue Code, 2006; certain prerequisites must be met by a

legal question to be a ‘substantial question of law involved in the case’.

Firstly, there must be a basis for this question which has been established

in either the pleadings, legal arguments or submissions of the

party/parties. Secondly, this question should naturally arise from the

substantial facts established by the fact-finding Court and the

determination of this legal question must be imperative for a fair and just

outcome of the case, i.e., the question should strike at the core of the

matter under consideration.

27. The Hon’ble Supreme Court in the case of Amar Singh and others

versus Dalip Singh and others; reported in (2012) 13 SCC 405, has been

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pleased to hold that the purpose of framing of substantial question of law

is to give the parties an opportunity to come prepared on the partucular

question and the Hon’ble Court has further observed that when the

substantial question of law is formulated by the Court then the same must

be made known to the parties and thereafter they have to be given an

opportunity to advance arguments thereon.

28. In this regard, the Hon’ble Supreme Court in the case of Sir Chunilal

V. Mehta and sons versus Century Spg. and Mfg. Co. Ltd., reported in

AIR 1962 SC 1314, laid the test to be followed for determining whether a

question of law that is raised in a particular case, is in fact, a substantial

question of law. The paragraph 6 of the same is reproduced below,

“6. … The proper test for determining whether a question of law raised in the

case is substantial would, in our opinion, be whether it is of general public

importance or whether if directly and substantially affects the rights of the

parties and if so whether it is either an open question in the sense that it is not

finally settled by this Court or by the Privy Council or by the Federal Court or

is not free from difficulty or calls for discussion of alternative views. If the

question is settled by the highest court or the general principles to be applied

in determining the question are well settled and there is a mere question of

applying those principles or that the plea raised is palpably absurd the

question would not be a substantial question of law.”

29. From all that is mentioned hereinabove, the principle that comes to

light is that the formulation of substantial question of law is sine qua non

to Section 208 of the U.P. Revenue Code, 2006. The very jurisdiction of

the Board of Revenue in entertaining a second appeal is founded on the

formulation of a substantial question of law. The appellate jurisdiction of

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the Board of Revenue under section 208 of the U.P. Revenue Code, 2006

is not akin to the appellate jurisdiction under Section 207 of the U.P.

Revenue Code, 2006; it is restricted to such substantial question(s) of law

that may arise from the final order and decree appealed against. Second

Appeal is entertainable by the Board of Revenue under section 208 of the

U.P. Revenue Code, 2006 only upon its satisfaction that a substantial

question of law is involved in the matter. It is, however, open to the Board

of Revenue to re-frame substantial question of law or frame substantial

question of law afresh or hold that no substantial question of law is

involved at the time of hearing of the second appeal but reversal of the

final order and decree passed in appeal by the court below in exercise of

its jurisdiction under section 208 of the U.P. Revenue Code, 2006 is

impermissible without formulating substantial question of law and a

decision on such question. Needless to say that where the Code deals

expressly with a particular manner, the provision should normally be

regarded as exhaustive.

30. The sub-section (2) of section 208 of the U.P. Revenue Code, 2006

specifically provides that “The Appellate Court shall not entertain a

second appeal unless it is satisfied that the case involves a substantial

question of law”. (emphasis supplied). The term ‘shall not’ followed by

the term ‘unless’ itself reflects restrictive nature of Section 208 of the U.P.

Revenue Code, 2006 and the language of the same is indicative of the

legislative intention that the legislature did not want Second Appeal to

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become a ‘third trial on facts’. It would not be out of place to mention

here that the term ‘shall not’ in its ordinary significance is a mandatory

prohibition and the courts should ordinarily give that interpretation to that

term unless such an interpretation leads to some absurd or inconvenient

consequence or be it variance with the intent of the legislature, to be

collected from other parts of the Act. It is a settled principle of rule of

interpretation that whenever a statute requires a particular act to be done

in a particular manner, then such act has to be done in that manner only

and in no other manner.

31. In the instant case, the learned Board of Revenue (respondent no.6)

has admittedly reversed the order passed by the First Appellate Court

while allowing the Second Appeal; but has neither framed nor formulated

any substantial question of law, thereby ignoring the mandatory provision

as contemplated under Section 208 of the U.P. Revenue Code, 2006. As

such, the Board of Revenue (respondent no.6) exercised its jurisdiction in

abdication of the duty casted upon the second appellate court under

section 208 of the U.P. Revenue Code, 2006.

32. As far as the rival contentions of the contesting parties regarding the

necessity of verification of signature of the testator, on the Will dated

24.01.1984, are concerned, this court, at the very inception deems it

imperative to note certain fundamental and well accepted principles on the

subject of validity of a Will. It is a well settled principle that the onus

probandi lies in every case upon the party propounding a Will and such

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propounder of the Will must satisfy the conscience of the Court that the

instrument so propounded is the last Will of a free and capable testator.

However, in absence to any conclusive proof to the contrary, the Will is

presumed to be correct when it is duly attested with the signature of the

testator.

33. At this stage, it would be apposite to refer to the judgment passed by

the Hon’ble Supreme Court in the case of H. Venkatachala Iyengar versus

B.N. Thimmajamma and others, reported in AIR 1959 SC 443 wherein the

Hon’ble Apex Court has been pleased to hold that the party propounding a

Will or otherwise making a claim under a Will is no doubt seeking to

prove a document. It would not be out of place to mention here that as per

Section 67 of the Indian Evidence Act, 1872, if a document is alleged to

be signed by a person, the said signature must be proved to be in his

handwriting and for proving such a hand writing under sections 45 and 47

of the Act, the opinion of experts and of persons acquainted with the

handwriting of the person concerned are made relevant. For a ready

reference paragraph 19 of the said judgment is reproduced hereinbelow,

“19. What is the true legal position in the matter of proof of wills ? It is well-

known that the proof of wills presents a recurring topic for decision in courts

and there are a large number of judicial pronouncements on the subject. The

party propounding a will or otherwise making a claim under a will is no doubt

seeking to prove a document and, in deciding how it is to be proved, we must

inevitably refer to the statutory provisions which govern the proof of

documents. Sections 67 and 68 of the Evidence Act are relevant for this

purpose. Under section 67, if a document is alleged to be signed by any

person, the signature of the said person must be proved to be in his

handwriting, and for proving such a handwriting under sections 45 and 47 of

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the Act the opinions of experts and of persons acquainted with the

handwriting of the person concerned are made relevant. 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 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. Similarly, sections 59 and 63 of the Indian Succession Act are

also relevant. Section 59 provides that every person of sound mind, not being

a minor, may dispose of his property by will and the three illustrations to this

section indicate what is meant by the expression "a person of sound mind" in

the context. Section 63 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. Has the testator signed the will ? Did he understand the

nature and effect of the dispositions in the will ? Did he put his signature to

the will knowing what it contained ? Stated broadly it is the decision of these

questions which determines the nature of the finding on the question of the

proof of wills. It would prima facie be true to say that the will has to be

proved like any other document except as to the special requirements of

attestation prescribed by section 63 of the Indian Succession Act. As in the

case of proof of other documents so in the case of proof of wills it would be

idle to expect proof with mathematical certainty. The test to be applied would

be the usual test of the satisfaction of the prudent mind in such matters.”

34. The above mentioned legal position has also been appreciated by the

Hon’ble Supreme Court as well as by the High Courts in a plethora of

judgments, notably, in the case of Jaswant Kaur versus Amrit Kaur and

others reported in (1977) 1 SCC 369, Bharpur Singh and others versus

Shamsher Singh, Civil Appeal No. 7250 of 2008 decided on 12.12.2008,

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Raj Kumari and others versus Surinder Pal Sharma, Civil Appeal No.

9683 of 2019 decided on 17.12.2018, Meena Pradhan and others versus

Kamla Pradhan and another, Civil Appeal No. 3351 of 2014 decided on

21.09.2023, Shiv Mangal versus D.D.C., Consolidation No. 317 of 2011

(Lucknow Bench of Allahabad High Court) decided on 22.08.2014.

35. However, the cases in which the execution of the Will is surrounded

by suspicious circumstances stand on a different footing, the Hon’ble

Supreme Court in the case of Jaswant Kaur versus Amrit Kaur and others

reported in (1977) 1 SCC 369, laid down a different approach in the cases

where the Will is under suspicion. The Hon’ble Court has been pleased to

hold that the propounder must remove all legitimate suspicions before the

said document can be accepted as the last Will of the testator. For ready

reference, the paragraphs (4) and (5) of the aforesaid judgment passed by

the Hon’ble Apex Court is extracted hereinbelow,

“(4) Cases in which the execution of the will is surrounded by suspicious

circumstances stand on a different footing. A shaky signature, a feeble mind,

an unfair and unjust disposition of property, the propounder himself taking a

leading part in the making of the will under which he receives a substantial

benefit and such other circumstances raise suspicion about the execution of

the will. That suspicion cannot be removed by the mere assertion of the

propounder that the will bears the signature of the testator or that the testator

was in a sound and disposing state of mind and memory at the time when the

will was made, or that those like the wife and children of the testator who

would normally receive their due share in his estate were disinherited because

the testator might have had his own reasons for excluding them. The presence

of suspicious circumstances makes the initial onus heavier and therefore, in

cases where the circumstances attendant upon the execution of the will excite

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the suspicion of the court, the propounder must remove all legitimate

suspicions before the document can be accepted as the last will of the testator.

(5) It is in connection with wills, the execution of which is surrounded by

suspicious circumstances that the test of satisfaction of the judicial conscience

has been evolved. That test emphasises that in determining the question as to

whether an instrument produced before the court is the last will of the

testator, the court is called upon to decide a solemn question and by reason of

suspicious circumstances the court has to be satisfied fully that the will has

been validly executed by the testator.”

36. Further, more recently, the Hon’ble Supreme Court in the case of Meena

Pardhan and Others versus Kamala Pradhan and Another, Civil Appeal

No. 3351 of 2014 decided on 21.09.2023 was pleased to hold that

whenever there exists any suspicion as to execution of the Will, the initial

onus on the propounder becomes heavier to remove all legitimate

suspicions.

37. From the perusal of propositions of law as laid down by the Hon’ble

Supreme Court in the cases mentioned above, it is evident that in a case

involving suspicion on the signature of the testator of the Will, its proof

ceases to be a simple lis between the plaintiff and the defendant and the

propunder of the Will would be called upon to show cogent, satisfactory

and sufficient evidence that the Will was signed by the testator, that the

testator at the relevant time was in a sound and disposing state of mind,

the testator understood the nature and effect of the disposition and has put

the signature on the document without any influence, in order to dispel

suspicion.

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38. At this juncture, it is also pertinent to point out that the Will may be a

registered Will and there may be broad statements by the witness that he

had witnessed the testator admitting execution of the Will but the same

itself would not mean that the statutory requirements of proving the Will

need not be complied with. It is the judicial conscience that has to be

satisfied, else no letters of administration in favour of the propounder can

be granted and in order to satisfy its conscience, the court may call upon

evidences in this regard. However, it is obvious that before deciding the

material questions of fact which arise in application for probate or in

actions on Wills, no hard and fast or inflexible rules can be laid down for

the appreciation of evidence.

39. Defending the impugned order dated 31.07.2023 passed by the Board

of Revenue, Sri Anshul Nigam, learned Standing Counsel for the State-

respondents submitted that the validity and genuineness of the Will in

question has been accepted by the Revenue Courts and that attained

finality vide judgment and order dated 04.08.2017 passed by this Court in

Writ Petition No. 13751 of 2005.

40. The above mentioned contention of the learned Standing Counsel is

not substantial being a manifest misinterpretation of the aforementioned

order dated 04.08.2017 whereby this Court dismissed the writ petition as

not entertainable being arising out of the mutation proceedings and left it

open for the parties to get their rights determined before the competent

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Court of law in regular proceedings which, by no means of interpretation

implies that this Court upheld the validity of the Will dated 24.01.1994.

41. It would not be out of place to reiterate, the settled legal position, that

even if the entries in the revenue record carry value, that by itself would

not confer any title upon the person claiming on the basis of the same. The

mutation proceedings being of a summary nature drawn on the basis of

possession do not decide any question of title and the orders passed in

such proceedings do not come in the way of a person in getting his rights

adjudicated in a regular Suit.

42. Further, the Hon’ble Supreme Court vide order dated 06.09.2021 in

the case of Jitendra Singh versus The State of Madhya Pradesh and Ors.,

SLP(C) No. 13146 of 2021, has been pleased to hold as under,

"5…. Be that as it may, as per the settled proposition of law, mutation entry

does not confer any right, title or interest in favour of the person and the

mutation entry in the revenue record is only for the fiscal purpose. As per the

settled proposition of law, if there is any dispute with respect to the title and

more particularly when the mutation entry is sought to be made on the basis

of the will, the party who is claiming title/right on the basis of the will has to

approach the appropriate civil court/court and get his rights crystalised and

only thereafter on the basis of the decision before the civil court necessary

mutation entry can be made."

43. This Court in the case of Amritansh Pandey versus State of U.P. and

others; reported in 2023 (161) RD 178 has held that in view of the settled

legal position that the mutation in revenue records neither creates nor

extinguishes title of the person and such entries are relevant only for the

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purpose of collecting land revenue. As such, the court of competent

jurisdiction while deciding the title over the property must not be

influenced by any finding or observation made in the mutation orders or

during mutation proceedings.

44. In the instant case, this Court finds that the Board of Revenue

(respondent no.6) has not adverted to the substantial questions of law

which may have been framed in the Appeal in as much as there is no

reference of the same in the impugned order dated 31.07.2023. The Board

of Revenue has decided the Second Appeal under Section 208 of the U.P.

Revenue Code, 2006, in a manner as if it was an Appeal under Section

207 of the U.P. Revenue Code, 2006.

45. In view of the discussion made hereinabove, this Court is of the

considered opinion that the learned Board of Revenue (respondent no. 6)

has failed to follow the mandate as provided under Section 208 of the U.P

Revenue Code, 2006 while allowing the Second Appeal and thus

committed a manifest error of law, calling for interference by this court

under Article 226 of the Constitution of India, in the impugned judgment

and order dated 31.07.2023. The present writ petition, thus, deserves to be

allowed.

46. The impugned judgment and order dated 31.07.2023 passed by the

learned Board of Revenue in Second Appeal No. SA/1509/2022/Basti

(computerized No. R-20221714001509), is set aside. The matter is

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remanded to the learned Board of Revenue (respondent no.6) to decide the

Second Appeal afresh, strictly in accordance with law.

47. It is provided that the Board of Revenue (respondent no.6), if finds

that any substantial question(s) of law arises in the case, shall frame such

question(s) and then decide the appeal accordingly and in case it finds no

substantial question of law is involved in the matter, then it shall record

the reasons in support of its conclusion.

48. However, it is made clear that this Court is not expressing any opinion

on the disputed factual matrix involved in the case, but formed an opinion

to remand the case only due to the aforementioned legal infirmity noticed

and the manner in which the aforesaid Second Appeal has been decided.

The Board of Revenue (respondent no.6), therefore, should decide the said

Second Appeal on its own merits, strictly in accordance with law.

49. The learned Board of Revenue (respondent no.6) shall decide the said

Second Appeal expeditiously, preferably within a period of six month as

provided under Clause 458 of the U.P. Revenue Court Manual.

50. Accordingly, The writ petition is allowed and disposed of in the

aforesaid terms. No order as to costs.

Order Date :- 9.10.2023

A.N. Mishra

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