Hakam Ali and Another vs State of U.P. and Others

Anjani Kumar Mishra, J.—Heard Sri Anil Bhushan, learned Counsel for the petitioner and Sri Rahul Jain, learned Counsel for the respondent. This writ petition has been filed seeking writ of certiorari for quashing the orders dated 28.10.2013, 10.10.2013 and 3.9.2012 passed by the opposite party Nos. 2, 3 and 4 respectively.

The dispute in the present writ petition relates to Chak No. 2337 recorded in the name of Iliyas, Vigyana Post and Pargana and Tahsil Budhana district Muzaffarnagar. On the death of the recorded tenure holder, two applications for mutation were filed. The first application was filed by the petitioner claiming on the basis of the registered Will dated 16.8.2004 while the second application was filed by the respondent No. 5 on the basis of succession by widow of the recorded tenure holder.

With regard to the registered Will as set up by the petitioner who is the nephew of the deceased, the Consolidation Officer has recorded that only one marginal witness has been examined. The second marginal witness namely Sushil Kumar has submitted an affidavit, a perusal of which shows that he had signed without reading or understanding the contents of the Will. He has also stated that he did not know the deceased Iliyas. The other suspicious circumstances noticed by the Consolidation Officer is that the Will makes no provision for the maintenance of the widow and the daughter of the deceased. He merely states that the testator does not have confidence in his wife, daughter and in-laws. This is altogether vague and offers no explanation as to why the natural succession is being deviated from.

With the aforesaid findings the Consolidation Officer has rejected the Will as not proved and as being one procured by forgery and fraud. He has further recorded that since Will in question is doubtful, it cannot be relied upon to declare the title.

The aforesaid findings have been affirmed and reiterated by the Settlement Officer Consolidation as also the Deputy Director of Consolidation.

Learned Counsel for the petitioner has submitted that the proceedings u/s 12 of the U.P. Consolidation of Holdings Act, 1953 being proceedings for mutation, it was not open to the Consolidation Courts to adjudicate upon the genuineness or otherwise of the Will which was the registered document. On the said ground he has assailed the order impugned.

The submission of the learned Counsel for the petitioner lacks merit.

It is settled law that the proceedings u/s 12 of the Consolidation of Holdings Act, 1953 are title proceedings and that they are not proceedings which are summary in nature having only fiscal implications. Since the submission of the learned Counsel for the petitioner is contrary to law well settled in this regard, the writ petition lacks merit and is dismissed.