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2002 DIGILAW 801 (PNJ)

Avtar Kaur @ Gurmit Kaur v. Gurdev Singh

2002-08-14

KARL REDDY

body2002
ORDER Karl Reddy, F.C. - This is a petition under Section 16 of the Punjab Land Revenue Act, 1887, seeking to revise the order dated 4.2.1998 of the Commissioner, Ferozepur Division, Ferozepur, the order dated 30.9.1997 of the District Collector, Muktsar, and the order dated 28.4.1997 of the Assistant Collector Ist Grade Muktsar, in regard to Mutation No, 2608 of village Chak Khokhar, H.B. No. 70, Tehsil and District Muktsar. 2. Balwant Singh died on 2.1.1993 aged about 90 years. Mutation of inheritance No. 2608 was entered on the basis of a registered Will dated 27.8.1974. The Will was executed when Balwant Singh was 70 years of age in favour of Gurdev Singh, son by the first wife. The beneficiary and the scribe deposed in support of the Will before the Assistant Collector Ist Grade. Neither of the attesting witnesses, Kartar Singh and Jit Singh was produced as they were allegedly inimical to Gurdev Singh. The Assistant Collector vide order dated 7.2.1995 ignored the Will as it had not been proved by an attesting witness. Moreover, the deceased had made no provision for his daughters who were then unmarried, or for his widow, which along with the failure to produce the attesting witnesses rendered the Will suspicious. He accordingly sanctioned the mutation on the basis of natural succession. 3. Gurdev Singh appealed against this order. The District Collector, Muktsar vide order dated 27.12.1995 rejected his application to be allowed to produce the attesting witnesses as also a handwriting expert. In revision against that order, the Commissioner vide order dated 7.2.1996 held that Gurdev Singh cannot be allowed to produce the attesting witnesses at the appellate stage. However, the District Collector may allow production of a hand writing expert if he deems fit. 4. The District Collector vide order dated 18.12.1996 while considering the application for summoning a handwriting expert, passed no order thereon. Instead he set aside the order dated 7.2.1995 of the Assistant Collector Ist Grade and remanded the case for fresh decision with the direction that the parties be allowed to lead evidence de novo. This amounted to review of the order dated 27.12.1995 of his predecessor without, indeed in blatant violation of, the order of the Revenue Officer to whom he was immediately subordinate, and hence illegal under Section 13 of the Act. Admittedly, the present petitioners filed no appeal or revision against the order dated 18.12.1996. This amounted to review of the order dated 27.12.1995 of his predecessor without, indeed in blatant violation of, the order of the Revenue Officer to whom he was immediately subordinate, and hence illegal under Section 13 of the Act. Admittedly, the present petitioners filed no appeal or revision against the order dated 18.12.1996. 5. No handwriting expert was produced or examined before the Assistant Collector Ist Grade. However, both attesting witnesses were produced, and they deposed in support of the Will. The Assistant Collector Ist Grade vide order dated 28.4.1997 held that the Will was registered, it had been proved by both attesting witnesses, and, there was nothing suspicious if the testator made his only son the beneficiary to the exclusion of his wife and daughters. He sanctioned the mutation of inheritance on the basis of the registered Will. The District Collector dismissed the appeal against the order inter alia on the ground that the deceased had got his daughters married into good families (for which there appears to be no evidence on record). The Commissioner dismissed the revision. Hence the present petition. 6. Apart from the question whether evidence taken on record illegally can be considered, there does not appear to be sufficient evidence to hold in favour of the Will. Under Section 71 of the Evidence Act, Gurdev Singh could produce an expert to prove the signature of the deceased on the Will. He did not avail of the opportunity. A presumption is accordingly drawn under Section 114 illustration (g) of the Evidence Act that evidence which could have been and was not produced would be unfavourable to him. Gurdev Singh had deposed initially that the attesting witnesses were inimical to him. Their delayed testimony in support of the Will raised uncomfortable questions as to how they were won over. These questions have not been raised or answered by the lower Revenue Officers. 7. It would therefore only be prudent to direct the beneficiary under the Will to establish his claim in the civil Court. The petition is accepted, the impugned orders are set aside, and the mutation is sanctioned in favour of all the natural heirs of the deceased. 8. A copy of this order be sent to the Chief Secretary to Government, Punjab (in this Department of Personnel), for taking action against Sh. The petition is accepted, the impugned orders are set aside, and the mutation is sanctioned in favour of all the natural heirs of the deceased. 8. A copy of this order be sent to the Chief Secretary to Government, Punjab (in this Department of Personnel), for taking action against Sh. R. Venkata Ratnam, IAS, then District Collector, Muktsar for ignoring the order dated 7.2.1996 of the Commissioner vide his order dated 18.12.1996 and, thereby blatantly violating judicial discipline. To be communicated. Petition accepted.