Allahabad High Court: Salil Kumar Rai, J., allowed a writ petition quashing the orders passed by the Deputy Director of Consolidation, Kushinagar and the Settlement Officer of Consolidation, Kasya, District-Kushinagar and remanding back to the Settlement Officer of Consolidation, Kasya, District-Kushinagar to pass fresh orders in accordance with law stating that Will dated 29-3-1946 was admissible in evidence and was relevant under Section 32(5) of the Evidence Act, 1872 to decide the pedigree of respondent 3 and had to be considered by the SOC and the DDC while assessing the different evidence filed by the parties to prove or disprove the pedigrees as pleaded by them.
The present writ petition arises from proceedings registered under Section 9-A(2) of the Uttar Pradesh Consolidation of Holdings Act, 1953. One Gaya was the original tenure holder of the disputed plots. Shivraji was the widow of Gaya. Munia was the daughter of Gaya and Shivraji. Gaya died before the date of vesting as defined in Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 and in the revenue records of 1359 Fasli and 1379 Fasli Shivraji was recorded as tenant of the disputed plots. After the death of Shivraji, the petitioners were recorded as tenants of the disputed plots and continued to be recorded as such in the basic year records of the village, i.e., the records available on the date the notification under Section 4(2) of the Act, 1953 was published notifying the village under consolidation operations. During the consolidation operations, the respondent 3 filed objections against the entries in the basic year records claiming himself to be the sole tenant of the disputed plots. On the objections of respondent 3, Case no. 1016 under Section 9-A(2) of the Act, 1953 was registered before the Consolidation Officer, Hata at Kasya, District-Deoria. The case set up by respondent 3 was that Gaya and Shivraji had two sons, namely Thakur and Pheku, and respondent 3 was the son of Thakur. Thakur died before Gaya. It was the case of respondent 3 that Pheku had died issueless, therefore, the share of Pheku also devolved on respondent 3. The petitioners contested the case set up by respondent 3. The petitioners denied that Thakur and Pheku were the sons of Gaya or that respondent 3 was the grandson of Gaya. However, the petitioners admitted that Thakur and Pheku were the sons of Shivraji. The case of the petitioners was that Gaya had only one daughter namely Munia, and the petitioners were the sons of Munia. The petitioners alleged that, before her marriage with Gaya, Shivraji was married to one Budhai, resident of Village-Khairatiya and Thakur and Pheku were the sons of Budhai. The petitioners alleged that Thakur and Pheku came with Shivraji after her marriage to Gaya. On their aforesaid pleadings, the petitioners claimed to be the tenants of the disputed plots under Section 171(2)(h) of the Act, 1950 because they were the sons of the daughter of Gaya. In the alternative, the petitioners also alleged that before his death, Gaya had executed a registered Will dated 29.3.1946 bequeathing his entire property, including the disputed plots, in favour of petitioner 1.
On the aforesaid pleadings, the petitioners prayed that the objections of respondent 3 be rejected and the entries in the basic year records be retained. The consolidation courts have rejected the Will on the ground that Gaya had no transferable interest in the suit property and, therefore, the Will was void.
The Court while allowing the petition explained that ‘Void’ and ‘non-est’ are two different concepts. The concept of void refers to the enforceability of a contract/document/ transaction and when a contract or a document is referred as void it implies that the same is not legally enforceable.
‘Non-est’ means ‘non-existent’ and is used to deny the execution of the document itself. A void document is not necessarily ‘non-est’. It is only an existing document which a party can plead to be ‘void’. If a document is void then it cannot be sued upon and enforced but the aforesaid does not mean that other legal consequences of the document shall not follow. [Bhrigurasan v. D.D.C., 2020 SCC OnLine All 767 , decided on 11-06-2020]