Janardan Sahai, J. - (1.) In the basic year Bhoj and Sukhai were recorded as tenants of the disputed land, which are situated in village Harpur. After their death two objections under section 9 of U.P. Consolidation of Holdings Act, were filed before the Consolidation Officer-One by the petitioner Smt. Phoolmani who alleged that Sukhai died before Bhoj and that she being their sister was entitled to inherit the land and the other objection was filed by Salam Uddin and Alauddin the respondents 3 and 4. Their case is that Bhoj died first and thereafter Sukhai and that Sukhai had executed a registered Will dated 6.6.1978 in their favour. Before the Consolidation Officer oral and documentary evidence was adduced by the parties. The petitioner filed copies of the extract of the death register relating to Sukhai and Bhoj. In these extracts the death of Sukhai was shown as 15.1.1976 and that of Bhoj as 23.8.1976. It is not in dispute that the petitioner is the sister of Bhoj and Sukhai and if the Will in favour of the respondents is not proved she would succeed entirely. The Consolidation Officer found that the Will dated 6.6.1978 was not proved and that one of the two witnesses examined by the respondents to prove the Will, Samsullah is the father of the respondents and, therefore, not an independent witness and the other Ram Lakhan Mishra is of another village. As regards the date of death of Bhoj and Sukhai he found that the extract of the death register filed by the petitioner had been proved and that Sukhai died on 15.1.1976 and thereafter Bhoj died on 23.8.1976. The respondents had also filed the extract of the death register of Bhoj wherein the date of his death is entered as 12.9.1945. This paper, the Consolidation Officer found does not mention the father's name of Bhoj and it pertains to village Harpur alias Pakhi Gohna and not to village Harpur Tappa Navgaon (Bhoj's village). The death of Bhoj in 1945 was found by the Consolidation Officer to be doubtful on the ground that if that were true there was no reason for mutation proceedings not starting for such a long period. As regards the date of death of Sukhai the Consolidation Officer considered the certificate of the Pradhan filed by the respondents and found that it could not be relied upon as the Pradhan had no authority to give a certificate about the date of death of a person or about his heirs. The objections filed by the petitioner were allowed and the objections filed by the respondents 3 and 4 were rejected. The respondents 3 and 4 preferred an appeal. The Settlement Officer Consolidation allowed the appeal. The petitioner thereafter filed a revision, which has been dismissed by the Deputy Director of Consolidation by the impugned order.
(2.) I have heard Sri R.C. Singh, learned Counsel for the petitioner and S/Sri V.K. Singh and Vimlendra Rai, learned Counsel for the respondents 3 and 4.
(3.) The Deputy Director of Consolidation found that the extract of the death register filed by the petitioner were unreliable because they relate to another village, namely, Baglaha whereas the parties were resident of village Harpur. Sri R.C. Singh, learned Counsel for the petitioner refers to Annexure-7 to the writ petition, which is a copy of the death register. The said extract indicates that it pertains to village Harpur Nyay Panchayat Baglaha and not to village Baglaha as observed by the Deputy Director of Consolidation. It also appears that the Deputy Director of Consolidation has not given any decision as regards the date of death of Bhoj. As regards the death of Sukhai the Deputy Director of Consolidation has relied upon the statement in cross-examination of the petitioner Smt. Phoolmani a rustic old lady aged about 64 years that Sukhai died about 2 and a half years back and Bhoj died earlier and has observed that this corresponds to the date of his death entered in the paper filed by the respondents. Neither the Deputy Director of Consolidation nor the Settlement Officer Consolidation however have considered the reasons given by the Consolidation Officer in arriving at the finding about the date of death of Sukhai and Bhoj and about the Will. As the findings of the Consolidation Officer were being reversed the material evidence referred to in the Consolidation Officer's order and the reasons given by him ought to have been considered and met. One of the circumstances relied upon by the Consolidation Officer in support of his finding that the Will dated 6.6.1978 could not be relied upon is that on the same day on which it is alleged to have been executed there was an order of mutation of tine name of the respondents 3 and 4, which was not possible. Moreover, Smt. Phoolmani was the sister of Bhoj and Sukhai. The Deputy Director of Consolidation and Settlement Officer Consolidation have not considered whether there were circumstances on account of which she may have been excluded by Sukhai to bequeath the property to the respondents. It is a settled principle of law that the burden to prove a Will lies upon the propounder. The Settlement Officer Consolidation, however, erroneously placed the burden of proof upon the petitioner. The Deputy Director of Consolidation also erred in not considering the evidence regarding the proof of the Will. The mere fact that a Will is a registered one is not sufficient for its proof. The Deputy Director was, therefore, required to consider the evidence.;