A.P.Sahi, J. - (1.) HEARD Sri Shesh Kumar learned counsel for the petitioners and Sri Anupam Kulshreshtra for newly impleaded respondent No. 6 who claims to have succeeded to the holding of respondent No. 5. The respondent No. 5 had died during the pendency of the writ petition.
(2.) THE pedigree giving rise to this dispute has been set out in Paragraph 2 of the writ petition and is gainfully reproduced here under : JUDGEMENT_243_ADJ1_2012Image1.jpg THE dispute relates to the holding of late Khem Chand to whom the respondent No. 5 Smt. Prakashi was married. Khem Chand died issuless. THE petitioners are the sons of the brother of Khem Chand. After the death of Khem Chand on 9th August, 2001 the petitioners filed a mutation application claiming to have succeeded to the holding of late Khem Chand to the exclusion of the respondent No. 5 on the strength of a will dated 28th July, 2001. This will was contested by the respondent No. 5 and the parties led their evidence. THE Tehsildar vide order dated 2nd of May, 2003 found that the will appears to have been genuinely executed and accordingly directed the mutation of the name of the petitioners to the exclusion of the respondent No. 5. An appeal was preferred against the same and the appellate authority on 19th July, 2003 reversed the order of the Tehsildar basically on two grounds. It held that the thumb impression of late Khem Chand as contained in the will relied on by the petitioners appear to be doubtful on account of the statement of the attesting witness of the will, namely, Sri Harun. The second ground taken by the appellate authority to reverse the order was that the respondent No. 5 Prakashi continued to be recorded in several documents which indicated that there was no divorce between Khem Chand and the respondent No. 5, and therefore the natural course of succession had been incorrectly diverted. The appellate Court further held that in view of the circumstances and the evidence on record, the will as relied on by the petitioners was under a serious cloud and hence, the order passed by the Tehsildar was reversed. The petitioners preferred a revision against the said order in appeal and the revising authority vide order dated 15.12.2003 set aside the order in appeal after recording a finding that the appellate Court could not have acted as an expert of thumb impressions, and even otherwise the fact that Khem Chand continued to reside with his brother Shyam Singh, sufficiently indicated that he had love and affection for him and his sons, and accordingly the execution of the will does not appear to be in any suspicious circumstance. Not only this, the revisional Court further held that the appellate authority committed an error by ignoring the evidence relating to the medical treatment that was extended to Khem Chand in a Nursing Home prior to his death, as also the fact of entire functions having been performed by the petitioners and their family. The revisional Court further relied on the background in which the relationship of the husband and wife were strained, and while passing the order held that there was material irregularity by not correctly appreciating the statement of the real sister of the respondent No. 5 which indicated the existence of strained relationship between Khem Chand and his wife. The revising authority, namely, the Additional Commissioner, Meerut Division, accordingly reversed the order of appeal and maintained the order passed by the Tehsildar dated 2nd May, 2003.
(3.) AGGRIEVED the respondent appears to have approached the Board of Revenue in a revision under Section 219 of the U.P. Land Revenue Act, 1901 and by the impugned order dated 19th February, 2005 the learned Member, Board of Revenue reversed the order of the Additional Commissioner and upheld the order of the appellate authority dated 19th July, 2003. The Board of Revenue proceeded to reiterate the facts that were recorded by the appellate authority. Sri Shesh Kumar learned counsel for the petitioners submits that the execution of the will had been proved by the attesting witnesses and a finding to that effect was categorically recorded which is also evident from the statement of Harun, who had clearly indicated the date, the place and the presence of the persons including the lawyer concerned as well as one Mr. Dharm Vir, before whom the will had been drafted, read out to the executor which was accepted, and the thumb impression was put by Khem Chand on the said will. He submits that there was absolutely no suspicious circumstance existing, inasmuch as, the strained relationship of the husband and wife stood proved by the statement of her own sister and also the statements of the other witness. Accordingly there were sufficient reasons for edging out the natural course of succession by the executor of the will. He contends that it was not the case of the petitioner that there were different thumb impressions on the documents that were relied on by the petitioners. The difference which was sought to be compared was through a document which was not set up by the petitioners. The second will had been set up by Harbir the husband of the real sister of respondent No. 5. He therefore contends that this comparison which has been made by the appellate Court was a step beyond the jurisdiction of the appellate Court and even not a case set up by the petitioners. The contention of Sri Shesh Kumar is that the will was not required to be registered, and the circumstances as well as the composite assessment of the entire statement of the attesting witness, does not create any doubt about the execution of the will. ;