- (1.) S. K. Singh, J. By means of this writ petition, the petitioner has challenged the judgment of the Deputy Director of Consolidation dated 24-6-2003 (Annexure 3) to the writ petition by which revision filed by opposite party has been allowed.
(2.) THERE appears to be no dispute about the facts which runs into a very narrow compass and therefore, they can be summarised. The dispute is in respect to the land comprised in chak Nos. 52, 63 and 74 situated in village Rasoolpur, Pargana Ayashah District Fatehpur which was recorded in the name of Sri Munni Devi widow of late Bansh Gopal. On the death of Smt. Munni Devi, two sets of objection/claim before the Consolidation Officer was laid, one by petitioner on the basis of registered will deed dated 17-5-1985 in her favour and other by opposite party on the basis of unregistered will dated 18-11-1986. Smt. Munni Devi died on 2-12-1986. It is in the light of aforesaid two rival claim, parties led their evidence and went in trial. The Consolidation Officer on the basis of oral and documentary evidence accepted the claim of petitioner based on registered will deed and thus, allowed her objection by judgment dated 16-6-1988. The appeal filed by opposite party was dismissed by appellate authority by the judgment dated 16-11- 2000. The registered will in favour of petitioner was accepted by appellate authority also. On taking up the matter to the revisional Court by the opposite party, the Deputy Director of Consolidation took the view that none of the will on the basis of which rival claim has been placed needs adjudication on merits as Smt. Munni Devi had no right to execute will and thus the property has been directed to go to the respondent being preferential heir in accordance with Section 171 of U. P. Z. A. & L. R. Act. It is thus the judgment of Deputy Director of Consolidation is under challenge at the instance of petitioner. Parties learned Counsel have been heard at length. Submission of learned Counsel for the petitioner is that the view taken by the Deputy Director of Consolidation that Smt. Geeta Devi had no right to execute will is illegal and therefore, as the Deputy Director of Consolidation has not examined merits in the will deed of parties either way on which their claims are based, as decided by two Court, matter needs remand so that parties' claim based on the will may be accepted/rejected. In support of submission that Smt. Munni Devi had right to execute will, provision as contained in Section 169 of U. P. Z. A and L. R. Act (hereinafter referred to as the Act) which permits a bhumidhar to bequeath his holding by way of will has been placed. Submission is that before amendment vide U. P. Act No. 30 of 1975, provision as existed in Section 169 of the Act clearly prohibited a widow to bequeath her right by executing will but in view of amendment in Section 169 of the Act as referred above, as that prohibition was taken away, even the widow who is bhumidhar, has right to bequeath her holding by way of will. Submission is that there is no dispute that Munni Devi has executed will in the year 1985 i. e. much after the amendment in Section 169 and therefore she being bhumidhar of land, will executed by her cannot be said to be unauthorised. On the aforesaid premises, submission is that judgment of Deputy Director of Consolidation is liable to be quashed.
(3.) IN response to the aforesaid submission, learned Counsel for the respondent submits that the consideration as prevailed with the Deputy Director of Consolidation as noted in the order is by keeping in mind the anomaly as exists in Section 171 of the Act and Section 172 of the Act. Submission is that as Smt. Munni Devi has acquired the land by way of succession of deceased Bansh Gopal, on her death, property has to go in the light of Section 171 of the Act and she has no right to execute the will. In view of aforesaid arguments Court has examined the matter. The question to be decided is that whether Smt. Munni Devi can be said to have right to execute will in respect to the land in dispute so as to confer rights on either of the parties on that basis. To consider the aforesaid question, the provision of Section 169 of the Act as existed before Amendment which permits bequeath of holding by a bhumidhar will be useful to be quoted : "section 169: Bequeath by a bhumidhar.- (1) A bhumidhar may by will bequeath holding or any part thereof except as provided in sub-section (2 ). (2) No bhumidhar entitled to any holding or part in the right of a widow, widow of a male, lineal descendant in the male line of descent, mother, daughter, father's mother, son's daughter, sister or half- sister being the daughter of the same father as the deceased may bequeath by will such holding or part. (3) Every will made under provision of sub-section (1) shall, notwithstanding anything contained in any law, custom or usage, be in writing and attested by two persons. " After omission of sub-clause (2) of Section 169, vide U. P. Act No. 30 of 1975, Section 169 as exists as on today, is quoted hereunder: Section 169: Bequest by a bhumidhar - (1) A bhumidhar may by will bequeath his holding or any part thereof except as provided in (sub-section (2-A) (2) * (2-A) In relation to a bhumidhar belonging to a Scheduled Caste and Scheduled tribe, the provisions of Section 17-A shall apply to the making of bequests as they apply to transfer during life time. Every will made under provisions of sub-section (1) shall, notwithstanding anything contained in any law, custom or usage, be in writing and attested by two persons. ";