Judgment:
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 l/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.
3. 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.
4. 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.
5. 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.
6. 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.
7. The second submission on behalf of the learned Counsel for the petitioner, is to the effect, that the Will had been proved and the Consolidation Officer as well as the Deputy Director of Consolidation erred in drawing a conclusion that since two of the witnesses were near relatives therefore, they were interested witnesses and their testimonies could not be believed. He contends that there is another error in the order of the courts below to the extent, that the existence of the Will at the time of claim made by the petitioner before the Assistant Consolidation Officer, is against the weight of evidence on record. It is urged that the Will was very much there and therefore, the findings that the Will was allegedly set up in year 1998-99 is without any basis. The contention as to whether the Will was existing or not may not be of much relevance, inasmuch as, the Will was ultimately set up before the Consolidation Officer and the parties were allowed to lead evidence on the said Will. It is after consideration of the surrounding circumstances of the execution of the Will that Settlement Officer Consolidation reversed the findings of the Consolidation Officer. The same clearly indicates that the statements of both the attesting witnesses contradicts the execution of the Will. The aforesaid findings are clearly recorded by the Settlement Officer Consolidation, to the effect, that whereas one of the witnesses Asarfi Lal states that the Will was executed at about 12 noon on a stamp paper, the other witness Brahma Nand states that the Will was executed in the morning at 8.00 a.m. on a stamp paper. However, it was ultimately found that the Will was not reduced in writing on any stamp paper but the same was drafted on a plain sheet of paper. Noting the aforesaid contradictions, the Settlement Officer Consolidation came to the conclusion that the surrounding circumstances clearly indicated that the Will had been set up later on and it does not appear to be genuine. The aforesaid findings have been affirmed by the Deputy Director of Consolidation. It is the burden of the propounder of the Will to remove any cloud that has been cast on the execution of the Will. The fog has to be cleared beyond all doubt and founded on evidence to support the execution coupled with a cogent explanation for the necessity to execute such a Will. The petitioner and the respondent No. 4 have failed to dislodge the mist covering the alleged Will and hence the Consolidation Officer could not have recorded findings that even otherwise fail to take notice of the short falls as noticed by the Settlement Officer Consolidation.
8. Having considered the entire material, this Court is of the opinion that the findings of the Settlement Officer Consolidation and the Deputy Director of Consolidation cannot be said to be perverse nor they can be said to be founded on no material. The assessment of witnesses to believe or disbelieve them was examined by the Settlement Officer Consolidation according to the statements of witnesses, which were on record and this was done after giving full opportunity to the parties. In view of the aforesaid conclusions neither the case of succession in accordance with the provisions of the U.P.Z.A. and L.R. Act nor the case of the Will as set up by the petitioner could be successfully established before the authorities or before this Court.
9. The writ petition lacks merit and is accordingly dismissed.