@JUDGMENTTAG-ORDER
Ram Surat Ram (Maurya), J.@mdash1. Heard Sri A.K. Jauhari, for the petitioners and Standing Counsel, for the respondent, State of U.P.
2. These writ petitions have been filed against the orders of Prescribed Authority (Ceiling), dated 25.07.2005, declaring 4.932 hectare land, in terms of irrigated land as surplus with Ramesh Chandra Tiwari and Additional Commissioner dated 28.09.2005, dismissing the appeals of the petitioners, in proceedings under of U.P. Imposition of Ceiling on Land Holdings Act, 1960 (hereinafter referred to as the Act).
3. Prescribed Authority (Ceiling) issued a notice dated 09.05.2002 (served on 06.06.2002) to Ramesh Chandra Tiwari under Section 10(2) of the Act, showing 4.932 hectare land, in terms of irrigated land as surplus with him. In the notice, plots 103 (area 0.030 hectare), 109 (area 0.190 hectare) and 422 (area 0.030 hectare) of village Achchheypur Kirmili, 156 (area 0.359 hectare) of village Banauni, 69-A (area 0.237 hectare), 69-B (area 0.088 hectare), 75 (area 0.041 hectare), 76 (area 0.559 hectare), 89 (area 0.335 hectare) and 90 (area 0.278 hectare) of village Mirpur Maraucha (total area 2.147 hectare in terms of irrigated land) of Lakshmi Shankar Tiwari were included in holdings of Ramesh Chandra Tiwari, on the ground that Lakshmi Shankar Tiwari died on 22.02.1998 and was inherited by Ramesh Chandra Tiwari, who was his only son, under Section 171 of U.P. Act No. 1 of 1951.
4. Ramesh Chandra Tiwari contested the notice and filed his reply dated 04.07.2002, stating therein that Lakshmi Shankar Tiwari, his father voluntarily executed a will dated 22.02.1998, bequeathing his properties to his grand sons Rajeev Tiwari and Sanjeev Tiwari, who inherited the land of Laksmi Shankar Tiwari, after his death. Rajeev Tiwari and Sanjeev Tiwari were his major sons, their holdings cannot be included with his holdings. In the notice, holdings of his major sons have been illegally included and usar, talab, unirrigated single crop land and grove land have been wrongly shown as irrigated land. Plots 12 (area 0.278 hectare), 18 (area 0.034 hectare), 19 (area 0.107 hectare), 20 (area 0.095 hectare), 22 (area 0.110 hectare), 69-A (area 0.237 hectare), 69-B (area 0.088 hectare), 75 (area 0.041 hectare), 76 (area 0.559 hectare), 89 (area 0.335 hectare), 90 (area 0.278 hectare) 229 (area 0.455 hectare), 233 (area 0.013 hectare) of village Meerpur Maraucha, 103 (area 0.930 hectare), 109 (area 0.190 hectare) of village Achchheypur Kirmili, 156 (area 0.533 hectare), 240 (area 2.365 hectare), 251, (area 0.405 hectare), 261 (area 0.417 hectare) and 300 (area 0.830 hectare) of village Gauspur Matarra were old grove holdings and have been wrongly shown as two crops irrigated land. Plots 61 (area 0.724 hectare) of village Khanpur Surauli and 109 (area 0.090 hectare) of village Gauspur Matarra were usar land. Plots 422 (area 1.598 hectare) of village Khanpur Surauli, 156 (area 0.359 hectare) of village Banauli were unirrigated single crop land. These plots were wrongly shown as irrigated land. Plots 261 (area 0.427 hectare) and 300 (area 0.830 hectare) of Gauspur Natarra were neither his holdings nor in his possession but were wrongly included in his total holdings. Family of Ramesh Chandra Tiwari consisted five members i.e. himself, his wife, two major sons and one unmarried daughter.
5. Rajeev Tiwari and Sanjeev Tiwari also filed an application for their impleadment in the proceeding and objection to the notice and stated that land of Lakshmi Shankar Tiwari was inherited by them under his will dated 22.02.1998.
6. Prescribed Authority (Ceiling) framed 12 issues on the basis of objections of the petitioners and after hearing the parties, by order dated 07.03.2003 held 4.932 hectare land, in terms of irrigated land as surplus with Ramesh Chandra Tiwari. The petitioners filed separate appeals (registered as Ceiling Appeal Nos. 13 of 2002-03 and 14 of 2002-03) from the aforesaid order. Additional Commissioner, after hearing the parties, by his order dated 21.05.2004, dismissed the appeals. The petitioners filed two writ petitions (registered as Writ Petition Nos. 47 and 48 (Ceiling) of 2004) against aforesaid orders. The writ petitions were consolidated and heard together. This Court allowed the writ petitions, by judgment dated 09.07.2004 and remanded the matter to Prescribed Authority for fresh decision on all the issues.
7. After remand, Prescribed Authority (Ceiling) by order dated 16.03.2005 called for a spot inspection report from Tahsildar in respect of issues 5 to 12. Tahsildar, after spot inspection, submitted his report dated 29.04.2005. Prescribed Authority, by order dated 25.07.2005, held that Lakshmi Shankar was an educated man and used to sign as stated by Ramesh Chandra. Bal Krishna Pandey, attesting witness of will dated 22.02.1998, in his cross examination, has not stated that Lakshmi Shankar had suffered from paralytic attack, due to which he was unable to make his signature and affixed his thumb impressions on the will. Lakshmi Shankar died on 14.03.2000 but report for mutation was given on 21.08.2000 by Rajeev and Sanjeev, which shows that will was subsequently manufactured. In the meantime, name of Ramesh Chandra was mutated on report PA-11-A on 19.01.2001 and he also did not raise any objection. On these finding, he rejected objections of the petitioners and again held 4.932 hectare irrigated land as surplus with Ramesh Chandra Tiwari.
8. The petitioners filed separate appeals (registered as Appeal Nos. 8 and 9 of 2004-05) from the aforesaid order. Additional Commissioner, after hearing the parties, by order dated 28.09.2005, held that attesting witness Ramesh Chandra Tiwari is father of Rajeev Tiwari and Sanjeev Tiwari, the propounders of will dated 22.02.1998, as such he is an interested witness, which also proves that the propunders had taken active part in execution of will. Lakshmi Shankar was an educated man and used to sign as stated by Ramesh Chandra. Bal Krishna Pandey, other attesting witness of will, has not stated that Lakshmi Shankar had suffered from paralytic attack, due to which, he was unable to make his signature and affixed his thumb impressions on the will. Lakshmi Shankar died on 14.03.2000 but report for mutation was given on 21.08.2001 by Rajeev Tiwari and Sanjeev Tiwari, which shows that will was subsequently manufactured. In the meantime, name of Ramesh Chandra was mutated on report PA-11-A on 19.01.2001 and he also did not raise any objection. On these findings, he dismissed the appeals. Hence these writ petitions have been filed.
9. The counsel for the petitioners submitted that respondents-1 and 2 have ignored will dated 22.02.1998 on alleged suspicious circumstances namely (i) Lakshmi Shankar Tiwari died on 14.03.2000 but report for mutation was given by the legatees, after a long time on 21.08.2000. (ii) Lakshmi Shankar Tiwari was an educated man and used to make signatures as admitted by Ramesh Chandra Tiwari but on will dated 22.02.1998, thumb impressions were affixed. (iii) Ramesh Chandra Tiwari, in his statement, has stated that Lakshmi Shankar Tiwari had suffered from paralytic attack, before execution of will, due to which he had become unable to make signature but his statement in this respect was not corroborated by other attesting witness Bal Krishna Pandey, who was also a close relation. (iv) Ramesh Chandra Tiwari, father of the propounders, had taken active part in execution of the will and (v) Attesting witnesses of the will were near relations. These circumstances were not suspicious circumstances in the fact of this case. Ramesh Chandra Tiwari, the only son of Lakshmi Shankar Tiwari had extensive holdings in his name as such will was executed in favour of grand sons. Ramesh Chandra Tiwari, who had been deprived from inheritance, cannot be treated as the propounder of the will. Attestation of will by him cannot be treated as active participation of the propounders in execution of will. Bal Krishna Pandey had also stated that Lakshmi Shankar Tiwari had suffered from paralytic attack, before execution of will, due to which he had become unable to make signature but his statement in this respect has been illegally ignored. Mutation report was given within six months of the death and this was not an unreasonable delay which creates a suspicion. Tahsildar, while rejecting mutation application, directed for mutation of the name of Ramesh Chandra Tiwari on report under PA-11-A and his name was mutated on 19.01.2001. This order has been misread and misinterpreted. The will dated 22.02.1998 was not surrounded with suspicious circumstances and has been illegally ignored. Issue Nos. 5 to 12 were concluded with Tahsildar''s report dated 29.04.2005, in favour of the petitioners. But respondents-1 and 2 have illegally not adverted to these issues. He relied upon the judgment of Supreme Court in Kumar Harish Chandra Singh Deo v. Bansidhar Mohanty, , AIR 1965 SC 1738, in which it has been held that the object of attestation is to protect the executant from being required to execute a document by the other party thereto by force, fraud or undue influence. No doubt, neither the definition of "attested" nor Section 59 of the Transfer of Property Act debars a party to a mortgage deed from attesting it. It must, however, be borne in mind that the law requires that the testimony of parties to a document cannot dispense with the necessity of examining at least one attesting witness to prove the execution of the deed. Inferentially, therefore, it debars a party from attesting a document which is required by law to be attested. Where, however, a person is not a party to the deed there is no prohibition in law to the proof of the execution of the document by that person. Gopal Swarup v. Krishna Murari, , (2010) 14 SCC 266 in which it has been held that a careful analysis of the provisions of Section 63 of Evidence Act, 1872 would show that the proof of execution of a will would require the following aspects to be proved: (1) That the testator has signed or affixed his mark to the will or the will has been signed by some other person in the presence and under the direction of the testator. (2) The signature or mark of the testator or the signature of the persons signing for him is so placed has to appear that the same was intended thereby to give effect to the writing as a will. (3) That the will has been attested by two or more witnesses each one of whom has signed or affixed his mark to the will or has been seen by some other person signing the will in the presence and by the direction of the testator or has received from the testator a personal acknowledgment of the signature or mark or the signature of each other person. (4) That each of the witnesses has signed the will in the presence of the testator. The orders of respondents-1 and 2 are illegal.
10. In reply to aforesaid arguments, Standing Counsel submitted that Supreme Court in Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria, , (2008) 15 SCC 365, held that whether a will is surrounded by suspicious circumstances or not is essentially a question of fact. We have noticed herein before that there were a large number of suspicious circumstances in the instant case. We have also pointed out that suspicious circumstances appear on the face of the will. Inferences of suspicious circumstances must be drawn having regard to the evidence of Ranjit Singh. Even the statutory requirements for proof of the will have not been complied with. It is trite law that execution of a will must be held to have been proved not only when the statutory requirements for proving the will are satisfied but the will is also found to be ordinarily free from suspicious circumstances. When such evidences are brought on record, the court may take aid of the presumptive evidences also. This Court in Consolidation No. 106 of 1992 Ram Adhar v. DDDC and others, (decided on 23.12.2015) held that if son has been deprived from inheritance then it was a suspicious circumstance. The will has been rightly ignored by respondents-1 and 2. The writ petition has no merit and is liable to be dismissed.
11. I have considered the arguments of the parties and examined the record. Supreme Court in Rani Purnima Debi v. Kumar Khagendra Narayan Deb, , AIR 1962 SC 567, held that further, what are suspicious circumstances was also considered in this case. The alleged signature of the testator might be very shaky and doubtful and evidence in support of the propounder''s case that the signature in question was the signature of the testator might not remove the doubt created by the appearance of the signature. The condition of the testator''s mind might appear to be very feeble and debilitated and evidence adduced might not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will might appear to be unnatural, improbable or unfair in the light of relevant circumstances; or the will might otherwise indicate that the said dispositions might not be the result of the testator''s free will and mind. In such cases, the Court would naturally expect that all legitimate suspicions should be completely removed before the document was accepted as the last will of the testator. Further, a propounder himself might take a prominent part in the execution of the will which conferred on him substantial benefits. If this was so it was generally treated as a suspicious circumstance attending the execution of the will and the propounder was required to remove the doubts by clear and satisfactory evidence. But even where there were suspicious circumstances and the propounder succeeded in removing them, the Court would grant probate, though the will might be unnatural and might cut off wholly or in part near relations. In Indu Bala Bose v. Manindra Chandra Bose, , AIR 1982 SC 133, held that this Court has held that the mode of proving a Will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator''s mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testator''s mind was not free. In such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations. Needless to say that any and every circumstance is not a "suspicious" circumstance. A circumstance would be "suspicious" when it is not normal or is not normally expected in a normal situation.
12. In this case, there is no finding that execution of will dated 22.02.1998 was not proved according to provisions of Section 68 of Evidence Act, 1872 read with Section 63 of Indian Succession Act, 1925. The will dated 22.02.1998 has been ignored on the grounds that it was surrounded with suspicious circumstances namely:--(i) Lakshmi Shankar Tiwari died on 14.03.2000 but report for mutation was given by the legatees, after a long time on 21.08.2000. (ii) Lakshmi Shankar Tiwari was an educated man and used to make signatures as admitted by Ramesh Chandra Tiwari but on will dated 22.02.1998, thumb impressions were affixed. (iii) Ramesh Chandra Tiwari, in his statement, has stated that Lakshmi Shankar Tiwari had suffered from paralytic attack, before execution of will, due to which he had become unable to make signature but his statement in this respect was not corroborated by other attesting witness Bal Krishna Pandey, who was also a close relation. (iv) Ramesh Chandra Tiwari, father of the propounders, had taken active part in execution of the will and (v) Attesting witnesses of the will were near relations.
13. No limitation has been provided for filing mutation application under Section 34 of U.P. Land Revenue Act, 1901. If a person intends to grab the property on the basis of fabricated will, his conduct may to apply hurriedly for mutation after death. In this case mutation application was filed before six months of death. This was not unreasonable circumstance to create a suspicions in respect of due execution of will. Tahsildar, while rejecting mutation application of Rajeev Tiwari and Sanjeev Tiwari, vide order dated 13.12.2000, directed Supervisor Kanoongo to mutate the name of Ramesh Chandra Tiwari on report PA-11-A and his name has been mutated by order dated 19.01.2001. Respondents-1 and 2 have illegally held that name of Ramesh Chandra Tiwari was mutated without his objection which shows that will was manufactured later on. This was incorrect.
14. In cases of will, normal conduct is to get the will attested by close relations. In this case, one of attesting witness is brother-in-law of executant and other is his son who has been deprived from inheritance as such he cannot be treated as the propounder. Respondents-1 and 2 have illegally held that as the witnesses were close relations as such this was a suspicious circumstance. Similarly findings that statement of Ramesh Chandra Tiwari that Lakshmi Shankar Tiwari had suffered from paralytic attack, before execution of will, due to which he had become unable to make signature was not corroborated by other attesting witness Bal Krishna Pandey, is also incorrect. Statement of Bal Krishna Pandey has been filed as Annexure-SA-1, along with his Supplementary Affidavit dated 22.09.2014, which shows that he had clearly stated that right hand of Lakshmi Shankar was affected with paralytic attack due to which he had affixed thumb impressions on the will. Finding in this respect is due to ignoring material evidence on record.
15. The petitioners specifically pleaded that plots 12 (area 0.278 hectare), 18 (area 0.034 hectare), 19 (area 0.107 hectare), 20 (area 0.095 hectare), 22 (area 0.110 hectare), 69-A (area 0.237 hectare), 69-B (area 0.088 hectare), 75 (area 0.041 hectare), 76 (area 0.559 hectare), 89 (area 0.335 hectare), 90 (area 0.278 hectare) 229 (area 0.455 hectare), 233 (area 0.013 hectare) of village Meerpur Maraucha, 103 (area 0.930 hectare), 109 (area 0.190 hectare) of village Achchheypur Kirmili, 156 (area 0.533 hectare), 240 (area 2.365 hectare), 251, (area 0.405 hectare), 261 (area 0.417 hectare) and 300 (area 0.830 hectare) of village Gauspur Matarra were old grove holdings and have been wrongly shown as two crops irrigated land. Plots 61 (area 0.724 hectare) of village Khanpur Surauli and 109 (area 0.090 hectare) of village Gauspur Matarra were usar land. Plots 422 (area 1.598 hectare) of village Khanpur Surauli, 156 (area 0.359 hectare) of village Banauli were unirrigated single crop land. These plots were wrongly shown as irrigated land. Plots 261 (area 0.427 hectare) and 300 (area 0.830 hectare) of Gauspur Natarra were neither his holdings nor in his possession but were wrongly included in his total holdings. Issues-5 to 12 were framed in this respect. Relevant date for calculation of ceiling limit was 14.03.2000, when Lakshmi Shankar Tiwari died. In order to verify this fact, Prescribed Authority called for report from Tahsildar, who submitted his report dated 29.04.2005, in favour of the petitioners but this report has been illegally ignored and respondents-1 and 2 did not even advert to these issues.
16. Family of Ramesh Chandra Tiwari consisted five members i.e. himself, his wife, two major sons and one unmarried daughter. From School Certificates, it was proved that date of birth of Rajeev Tiwari was 05.09.1971 and Sanjeev Tiwari was 09.05.1975. Thus both sons of Ramesh Chandra Tiwari were major on 14.09.2000. He was entitled to additional four hectare irrigated land held by the major sons under Section 5(3) (a) of the Act but this benefit has not been given.
17. In view of aforesaid discussions, the writ petitions succeed and are allowed. Orders of Prescribed Authority (Ceiling) dated 25.07.2005 and Additional Commissioner dated 28.09.2005, are set aside. The matter is remanded to Prescribed Authority (Ceiling) to re-decide the case, including all the issues afresh in accordance with law.
