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2005 DIGILAW 2081 (RAJ)

Birji Bai v. Pradeep Kumar

2005-08-05

R.N.ARVIND

body2005
Honble ARVIND, M.ember—This revision petition has been filed under section 84 of the Rajasthan Land Revenue Act, 1956 (herein-after to be referred as the Act) against the order of learned Additional Divisional Commissioner, Kota dated 17.8.99. (2) Briefly the facts of this revision are as under:— That mutation No. 81 was attested by learned Tehsildar, Mangrol on 25.7.92. This mutation is related to the property of deceased Mathura Lal S/o Chhotu Lal. That the deceased is alleged to have made two wills : first was registered which was made on dated 22.4.89 and later will was unregistered which is of dated 25.7.89. The later will was presented to learned Tehsildar who on verfication from the Panchayat, attested a mutation in favuor of Shri Kishan Lal S/o Shri Lala Tamoli. The first will was made on 22.4.89 which was registered, the second will was not registered but was made on al later date on 25.7.89. Learned Tehsildar attested the mutation relying on the later will.. Appeal was made to learned Collector against this mutation and learned Collector by his order dated 7.12.98, rejected the appeal. Second appeal was filed before the learned Addl. Divisional Commissioner, who by order dated 17.8.99 accepted the appeal and set aside the order of learned Collector and he also set aside the mutation and ordered-that a mutation as per the registered deed may be attested. This is a revision against this order of learned Additional Divisional Commissioner. (3) Arguing in favour of the petition, the main contention of the learned advocate is that the later will of the deceased would prevail because any surviving person has a right to change his mind and whatever is the last will, be accepted as his final will.. As soon as the later will wa s made, the earlier will automatically was treated as cancellecd. He also that on the basis of this mutation, the petitioners have beenrecorded as khatedars and any order in appeal of mutation cannot change the status of the Jamabandi. If the non-petitioners have any grievance, the only course open is to resort to a suit of declaration in the competent court. (4) Replying to the arguments, the learned counsel for the non-petitioner argues that even when the mutation was being attested, objection had been raised before the learned Tehsildar but he ignored that objection. If the non-petitioners have any grievance, the only course open is to resort to a suit of declaration in the competent court. (4) Replying to the arguments, the learned counsel for the non-petitioner argues that even when the mutation was being attested, objection had been raised before the learned Tehsildar but he ignored that objection. He also argued that against an unregistered will, the registered will would prevail. We have a registered will in our favour and the mutation attested by learned Tehshldar should be cancelled and the order of learned Additional Commissioner should upheld. (5) Having heard both sides and having perused the record, we come to the following conclusion:— 1) That it is not open for the revenue court to examine the validity of a will. The scope before the revenue court is very limited. It is only supposed to examine whether the will was made or not and only a preliminary scrutiny can be made to understand the will properly. Tehsildar was right in putting reliance on a later will, althought it was an unregistered one. It is not necessary that the will is registered and when it is not necessary that a will is registered, an unregistered Will will have equal force in law. Since the deceased Mathura Lal made a second will, the earlier will would no more remain in force. Hence, the order of learned Additional Divisional Commissioner is erroneous in going into the validity of the will at his own level.. It would by appropriate to refer to a judgment of Honble Supreme Court passed in Bhagat Ram vs. Suresh as reproted in AIR 2004 SC page 437. The relevant part is being reproduced as under as quoted by the said AIR : Head note — (D) Registration Act (16 of 1908), Section 58 — Succession Act (39 of 1925), Sec. 63 — Evidence Act (1 of 1872), Secs. 114 — Registration of document as codicil or will — Does not dispense with need of proving execution and attestation of codicil/will as per Evidence Act — Endorsements made by Registrar are relevant for registration proposes only. "Registration of a document does ot dispense with the need of proving the execution and attestation of a document which is required by law to be proved in the manner as provided in Sec. 68 of the Evidence Act. "Registration of a document does ot dispense with the need of proving the execution and attestation of a document which is required by law to be proved in the manner as provided in Sec. 68 of the Evidence Act. Under Sec. 58 of the Registration Act, such particulars as are referred to in Secs. 52 and 58 of the Registration Act are required to be endorsed by Registrar along with his signature and date on document under Sec. 59 and then certified under Sec. 60. A presumption by reference to Sec. 114 [(illustration (e) of the Evidence Act shall arise to the effect that the events contained in the endorsement of registration, regularly and duly performed and are correctly recorded. None of the endorsements, required to be made by the Registrar of Deeds under the Registration Act, contemplates the factum of attestaion within the meaningof Sec. 63(C) of the Succession Act or Sec. 68 of the Evidence Act being encorsed or certified by the Registrar of Deeds. The endorsements made at the time of registration are relevant to the matters of the registration only." 2) It is also correct that mutation are fiscal proceedings and any right.title of a person can be best decided in a declaratory suit. It was not proper for the learned Addl. Divisional Commissioner to open the issue of a mutation after a lapse of very long time and his order suffers from impropriety. 3) Any opinion expressed in this case would not be binding on the subordinate courts in the trial of a declaratory suit. In view of the conclusions above, the revision is accepted and order of learned Addl. Divisional Commissioner, Kota dated 17.8.99 is set aside. Pronounced.