A.P.Sahi, J. - (1.) HEARD Shri Ramendra Asthana, learned counsel for the petitioner and Shri Pradeep Kumar Pandey, learned counsel for the contesting respondent No. 3. Respondent No. 4 is the real brother of the petitioner, who has also set up his claim of succession under the disputed Will.
(2.) THE facts shorn of details are that the holding admittedly belonged to Shri Sukhlal. After his death three of his sons namely Basu Deo, Ram Deo and Ram Avtar stood recorded according to the irrespective shares. THE widow of Sukhlal, Smt. Chameli Devi was alive at that time. Ram Deo, the second son of Sukhlal, predeceased his mother Chameli Devi. It is also not disputed that Smt. Urvashi, the respondent No. 3 is the widow of Ram Deo. Upon the death of Sukhlal the property was succeeded to 1/3rd each by all the three sons. However, Ram Deo died issueless and his holding was inherited by the mother of Ram Deo and his widow in equal shares. Smt. Chameli Devi mother of Ram Deo died on 2nd March, 1993. THEreafter, the dispute arose with regard to the property, which has reverted to the mother Smt. Chameli Devi on account of the death of Ram Deo. Sri Ramendra Asthana, learned counsel for the petitioner urged that the succession to the said property would be governed by Section 171 of the U.P.Z.A. and L.R. Act and accordingly, the Consolidation Officer before whom the matter was contested after remand, rightly allocated the shares according to the provisions of Section 171 of the U.P.Z.A. and L.R. Act. Simultaneously, another claim has been set up on behalf of the petitioner and respondent No. 4 that they inherited the entire property of Smt. Chameli Devi under an unregistered Will stated to have been executed on 11.1.1993. This alternative claim was also set up and two witnesses namely Asharfi Lal and Brahma, who were the attesting witnesses of the said Will, were examined before the Consolidation Officer. Aggrieved by the order of the Consolidation Officer, Smt. Urvashi, respondent No. 3, preferred an appeal before the Settlement Officer Consolidation and the Settlement Officer Consolidation after discussing the entire evidence came to the conclusion that the order of the Consolidation Officer was erroneous in law as well as in fact and after having appreciated the evidence, including the statements of two witnesses of the Will arrived at the conclusion that the Will was not proved. It was held that the inheritance after the demise of Smt. Chameli Devi would be governed by the provisions of Section 172 of the U.P.Z.A. and L.R. Act and the shares would evolve, keeping in view the provisions of sub-section (a) read with (b) of Section 172 (1) of the Act. The revisions were preferred by the petitioner and the respondent No. 4 and the said revisions have been dismissed upholding the order of the Settlement Officer Consolidation.
(3.) LEARNED counsel for the petitioner contends that the succession ought to have been concluded on the basis of devolution of interest as per Section 171 and not as per the Section 172 of the U.P.Z.A. and L.R. Act. I have perused the aforesaid provisions and it is evident that upon the death of Ram Deo the property in equal shares devolved upon his mother and his widow. Upon the death of the mother who was a widow, the respondent No. 3 inherited the property of the last male lineal descendant namely Ram Deo. The devolution would be governed by sub-section (1) of Section 172 and not under Section 171 of the U.P.Z.A. and L.R. Act. Therefore, the contention advanced by the learned counsel for the petitioner is untenable in law and is accordingly rejected.;