'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 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.

Before the High Court, the counsel for respondent no. 3 has argued that in view of Section 33 of the United Provinces Tenancy Act, 1939 the interest of Gaya in the disputed plots was heritable but not transferable and, therefore, Gaya had no right to execute a Will regarding the disputed plots and the Will dated 29.3.1946 was void ab initio and non est and had no legal consequences. It was argued that both the C.O. and the Settlement Officer of Consolidation had held that the Will dated 29.3.1946 was void and the said findings were not challenged by the petitioners in the revision filed by them before the Deputy Director of Consolidation and, therefore, the findings recorded by the consolidation courts that the Will was not enforceable cannot be challenged by the petitioners for the first time before this Court. It was further argued that as the Will dated 29.3.1946 was void ab initio, therefore, it cannot be read in evidence and any recital in the same allegedly made by Gaya was also inadmissible in evidence and was rightly ignored by the appellate and the revisional courts.

"The petitioners, in order to disprove that Thakur and Pheku were the sons of Gaya, had filed the Will dated 29.3.1946 which contained a recital by Gaya that he had no son but only a daughter named Munia. The recital in the aforesaid Will has not been considered by the S.O.C. and the D.D.C. while assessing the different evidence filed by the parties to prove their respective cases. The issue before this Court is as to whether the failure of the S.O.C. and the D.D.C. to consider the Will dated 29.3.1946 and the recital in it vitiates their orders requiring interference by this Court?", reflected the bench.

Observations of the bench

"'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'", observed the Court.

The Court noted 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'. It further stated 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.

"A contract or any other document which creates a right would be enforced by a court only if the person who executed the document has the authority to execute it, the document is admitted in evidence and proved in accordance with the provisions of Evidence Act, 1872. The admissibility in evidence or the probative value of a document or its contents does not depend on its enforceability by the courts", the bench opined.

It continued to declare that, For example, if a Will is not proved in accordance with Section 68 (Proof of execution of document required by law to be attested) of the Act, 1872 because no attesting witness of the Will who is alive, and subject to the process of the court and capable of giving evidence has been called to prove its due execution, the Will would not be enforced and the Will shall not be read in evidence for the purposes of enforcing the Will but can still be read in evidence for any purpose other than for enforcing the Will. In such a case, the court said, the document purporting to be a Will will be read in evidence not as Will but as any other document provided it has been proved in accordance with Sections 67 (Proof of signature and handwriting of person alleged to have signed or written document produced), 72 (Proof of document not required by law to be attested) and other provisions of the Evidence Act, 1872.

The bench further illustrated that, Similarly in a case, where a Will is not used or relied upon as a document conferring any enforceable right, the same can be read in evidence even if the requirement of Section 68 are not fulfilled and the said document is proved in accordance with Sections 67 and 72 of the Act, 1872.

"A Will which is executed by a person who had no right to make a bequest of the properties would not be enforceable by a court and in that sense it would be void. But, the said Will can be used for purposes other than its enforcement and would be admissible in evidence for such other purposes", concluded the bench.

It ruled that, thus, even if the Will dated 29.3.1946 is not enforceable for being void or may not be relevant under Section 32(6) of the Act, 1872 as a Will, it would still be admissible and relevant under Section 32(5) of the Act, 1872 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 as the husband of Shivraji. The Court conceded that the statement is obviously ante litem motam, i.e., made before any dispute regarding the succession to the estate of the testator started between the parties.

"Thus, the Will dated 29.3.1946 was admissible in evidence and was relevant under Section 32(5) of the Act, 1872 to decide the pedigree of respondent No. 3 and had to be considered by the S.O.C. and the D.D.C. while assessing the different evidence filed by the parties to prove or disprove the pedigrees as pleaded by them", ordered the Court, quashing the impugned orders passed by the S.O.C. and the D.D.C. and remanding the matter back to the S.O.C. to pass fresh orders in accordance with law.

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