1. Heard Mr. Sanjay Kumar Singh, counsel for the petitioner, Mr. Mukesh Kumar Singh, learned counsel for respondent no.5 & 6, learned Standing Counsel for the State-respondents and Mr. Bhupendra Kumar Tripathi, learned counsel for respondent no.4 / Gaon Sabha.

2. Brief facts of the case are that father of respondent nos.5 & 6 was recorded tenure holder of the plots in dispute. Mangaru Upadhyay, father of respondent nos.5 & 6 had no male child, he had only two daughters i.e. respondent nos.5 & 6 (Asha Upadhyay & Usha Upadhyay). Mangaru Upadhyayhad her wife Smt. Lalti Devi. Mangaru Upadhyay executed a registered Will-deed on 22.3.1999 in favour of her daughters i.e. respondent nos.5 & 6. Respondent nos.5 & 6 were married in the life time of their father and were residing in their in-laws house. It is also alleged in the writ petition that subsequently Mangaru Upadhyay had also executed an unregistered Will-deed dated 7.2.2022 in respect to Arazi No.-998 area 0.747 hectare. The earlier registered Will-deed executed on 22.3.1999 was cancelled in respect of Arazi No.998 area 0.747 hectare. Mangaru Upadhyay expired on 18.2.2002. After the death of Mangaru Upadhyay, respondent nos.5 & 6 as well as wife of deceased Mangaru Upadhyay applied for mutation which was allowed on 16.12.2003. Against the order dated 16.12.2003, petitioner filed an application for recalling the order dated 16.12.2003. The recall application filed by the petitioner was allowed on 9.9.2004 and the name of the petitioner's husband was ordered to be recorded over Arazi No.998. Against the order dated 9.9.2004, respondent nos.5 & 6 filed recall application which was allowed on 15.4.2016 setting aside the order Neutral Citation No. - 2023:AHC:40019 dated 9.9.2004. Mother of respondent nos.5 & 6 executed the Will-deed in favour of respondent nos.5 & 6 in respect to Arazi No.998. On the basis of Will-deed executed by mother of respondent nos.5 & 6, names of respondent nos.5 & 6 was mutated in the revenue records. On the application of the petitioner against the order of mutation passed in favour of respondent nos.5 & 6 was recalled vide order dated 28.3.2016. Respondent nos.5 & 6 challenged the order dated 28.3.2016 in appeal which was allowed and order dated 28.3.2016 was set aside and the mutation applied by the petitioner on the basis of unregistered Will-deed dated 7.2.2002 was dismissed by Tahsildar (Judicial), Sadar, Varanasi. Petitioner challenged the order dated 1.3.2021 through revision before the Commissioner which was dismissed vide order dated 23.8.2022, hence this writ petition.

3. Learned counsel for the petitioner submitted that the petitioner's mutation on the basis of unregistered Will-deed dated 7.2.2022 has been illegally refused by the Naib Tahsildar although the unregistered Willdeed setup by the petitioner has not been cancelled by any Court. He further submitted that respondent nos.5 & 6, daughters of Mangaru Upadhyay was not maintaining their father, Mangaru Upadhyay, as such, the subsequent unregistered Will-deed was executed on 7.2.2002 in respect of Arazi No.998 area 0.747 hectare only. He further submitted that reason was assigned in the subsequent unregistered Will-deed by recorded tenure holder by which the registered Will-deed executed by him was cancelled in respect of plot no.998 only. He next submitted that impugned orders are illegal and liable to be set aside.

4. On the other hand counsel appearing for respondent no.5 submitted that Naib Tahsildar has rightly refused the mutation on the basis of unregistered Will-deed dated 7.2.2002 setup by the petitioner. He further submitted that in view of the provisions contained under Section 92 proviso (4) of Indian Evidence Act, 1872, the registered Will-deed cannot be cancelled by unregistered Will-deed. He next submitted that writ petition arises out of proceedings under Section 34 of U.P. Land Revenue Act, which are summary proceedings, as such, writ petition is not maintainable. He also submitted that unregistered Will-deed dated 7.2.2002 was even not proved in accordance with law, as such, the mutation on the basis of unregistered Will deed in question cannot be allowed. He lastly submitted that the writ petition is liable to be dismissed. 5. I have considered the argument advanced by learned counsel for the parties and perused the record.

6. There is no dispute about the fact that recorded tenure holder has first executed registered will deed dated 22.3.1999 in favour of respondent nos.5 & 6.There is also no dispute about the fact that subsequent Willdeed which was alleged to be executed by recorded tenure holder, Mangaru Upadhyay in favour of husband of petitioner on 7.2.2002 was unregistered Will-deed by which the registered Will-deed executed by recorded tenure holder in respect to plot no.998 was cancelled.There is also no dispute about the fact that mutation applied by the petitioner on the basis of unregistered Will-deed dated 7.2.2002 has been refused under impugned orders.

7. Tahsildar while refusing the claim setup by petitioner on the basis of unregistered will deed dated 7.2.2002 has recorded finding of fact that petitioner has failed to produce original will deed dated 7.2.2002 inspite of last opportunity given to her to produce the same, the finding has been also recorded that will deed dated 7.2.2002 has not been proved according to the provisions contained under section 68 of Indian evidence Act, 1872. The finding of the fact recorded by Tahsildar in summary proceedings can not be interfered with by this Court under Article 226 of Constitution of India. 8. There is another aspect of the case with regard to substitution of registered deed by way of unregistered deed. In order to consider the argument advanced by learned counsel for contesting respondent with respect to provisions contained under section 92 proviso (4) of the Indian Evidence act 1872, the perusal of the same will be necessary which is as follows:-

"Section-92 of the Indian Evidence Act, 1872

Proviso (4).--The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents:"

9. Hon'ble Apex Court in the case reported in 2000 (91) RD 615 [LQ/SC/2000/1200] , S. Saktivel (Dead) by L.R.s vs. M. Venugopal Pillai and Others has discussed the scope of Section 92 proviso 4, the paragraph no. 7 of the judgment is relevant which is as follows:-

"In sum and substance what proviso (4) to Section 92 provides is that where a contract or disposition, not required by law to be in writing, has been arrived at orally then subsequent oral agreement modifying or rescinding the said contract or disposition can be substantiated by parol evidence and such evidence is admissible. Thus if a party has entered into a contract which is not required to be reduced in writing but such a contract has been reduced in writing, or it is oral in such situations it is always open to the parties to the contract to modify its terms and even substitute a new by oral contract and it can be substantiated by parol evidence. In such kind of cases the oral evidence can be let in to prove that the earlier contract or agreement has been modified or substituted by new oral agreement. Where under law a contract or disposition are required to be in writing and the same has been reduced in writing, its terms cannot be modified or altered or substituted by oral contract or disposition. No parol evidence will be admissible to substantiate such an oral contract or disposition. A document for its validity or effectiveness is required by law to be in writing and, therefore, no modification or alteration or substitution of such written document is permissible by parol evidence and it is only by another written document the terms of earlier written document can be altered, rescinded or substituted. There is another reason why the defendant/appellant cannot be permitted to let in parol evidence to substantiate the subsequent oral arrangement. The reason being that the settlement deed is a registered document. The second part of proviso (4) to Section 92 does not permit leading of parol evidence for proving a subsequent oral agreement modifying or rescinding the registered instrument. The terms of registered document can be altered, rescinded or varied only by subsequent registered document and not otherwise. If the oral arrangement as pleaded by the appellant if allowed to be substantiated by parol evidence it would mean re- writing of Ex.A/1 and, therefore, no parol evidence is permissible."

10. In view of the provisions contained under Section 92 proviso (4) of Indian Evidence Act, 1872 as well as ratio of law laid down by the Apex Court in S. Saktivel (supra), the mutation on the basis of unregistered Will-deed by which the registered Will-deed has been cancelled cannot be allowed.

11. Considering the entire facts and circumstances as well as ratio of law laid down by Apex Court in S. Saktivel (supra), no interference is required against the impugned orders. The writ petition filed by the petitioner against the impugned order passed in the summary proceeding under Section 34 of U.P. Land Revenue Act cannot be maintained and the same is dismissed accordingly.