'Even If Will Not Enforceable For Being Void, It Is Not Non-Est & Is Admissible Under Evidence Act S. 32(5) To Decide Pedigree': Allahabad HC [Read Judgment]

"Even if the Will is not enforceable for being void or may not be relevant under Section 32(6) of the Evidence Act, 1872 as a Will, it would still be admissible and relevant under Section 32(5) of the Act because the relevant recital in the Will is a statement in writing of the deceased and relates to the existence of a relationship by blood about which the testator had special means of knowledge", ruled the Allahabad High Court recently. Expounding the difference between the concepts of 'void' and 'non-est', the bench proceeded to observe that if a document is executed by a person who had no authority to execute it or no authority to indulge in the transactions incorporated in the document, the document would be 'void' but not 'non-est'. The Court held that if a document is void then it can not be sued upon and enforced but the aforesaid does not mean that other legal consequences of the document shall not follow. "The admissibility in evidence or the probative value of a document or its contents does not depend on its enforceability by the courts", asserted the bench. Section 32(5) provides that Statements, written or verbal, of relevant facts, made by a person who is dead, are themselves relevant facts when the statement relates to the existence of any relationship, by blood, marriage or adoption, between persons as to whose relationship the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised. Under section 32(6), such a statement of a dead person would become relevant when it relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait, or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised. Facts 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. Petitioners are the sons of Munia. Gaya belonged to the Lohar community. 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 no. 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 no. 3, a Case under Section 9-A(2) of the Act, 1953 was registered before the relevant Consolidation Officer. The case set up by respondent no. 3 was that Gaya and Shivraji had two sons, namely Thakur and Pheku, and respondent no. 3 was the son of Thakur. Thakur died before Gaya. It was the case of respondent no. 3 that Pheku had died issueless, therefore, the share of Pheku also devolved on respondent no. 3. The petitioners contested the case set up by respondent no. 3. The petitioners denied that Thakur and Pheku were the sons of Gaya or that respondent no. 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 no. 1. It is advanced that The Will dated 29.3.1946 contains a recital allegedly made by Gaya that he had no son but only one daughter namely Munia, who had one son named Bhrigurasan. Bhrigurasan is petitioner no. 1 in the present writ petition. On the aforesaid pleadings, the petitioners prayed that the objections of respondent no. 3 be rejected and the entries in the...

'Even If Will Not Enforceable For Being Void, It Is Not Non-Est & Is Admissible Under Evidence Act S. 32(5) To Decide Pedigree': Allahabad HC [Read Judgment]

Mehal Jain

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