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2006 DIGILAW 192 (HP)

JAI KISHAN CHAUHAN v. GANGO DEVI

2006-07-03

RAJWANT SANDHU

body2006
ORDER 1. These are two revision petitions filed against two orders of the Divisional Commissioner, Kangra passed on 7.4.2004 in revision petitions No. 189/2003 and i 90/2003. The facts and the matter at issue in both these revision petitions are interrelated and therefore these revision petition are being disposed off by this single order. 2. The facts which have precipitated the present dispute are that one Shri Kishan, son of Shri Sunder Singh inherited land in villages "Harsi1, Tehsil Palampur and Tarphed1, Tehsil Jaisinghpur from his mother Smt. Pano Devi Sh. Kishan executed an unregistered Will dated 3.5.1980 pertaining to this property in favour of his maternal uncles Shri Jaikishan, the present petition No.1 and Shri Om Parkash, the predecessor in interest of the rest of the petitioners. Accordingly, after the death of Sh. Kishan his land situated in village Harsi, Tehsil Palampur was inherited by S/Sh, Jai Kishan and Om Parkash by virtue of the said unregistered Will dated 3.5.1980 vide mutation No. 171 of village Harsi1, Tehsil Palampur which was attested on 25.5.1984. Lateron, on 31.5.1991, the land situated in village Tarphed, Tehsil Jasinghpur was mutated in favour of Shri Sunder, father of Sh. Kishan vide mutation No. 45 Shri Sunder had earlier executed a registered Will1 on 30.10.1990 in respect of his entire immovable and movable property in favor (sic- favour) of his third wife, Smt. Gango, who is the present respondent No.1. Shri Sunder expired some time in the year, 1992 and the land situated in village Tarphed, Tehsil Jaisinghpur which was mutated in his favor after the death of his son, Shri Kishan, vide mutation No. 45 was also mutated in favour of Smt. Gango. This mutation No. 47 was attested on 18.5.1992.The present petitions filed two appeals, before the Sub Divisional Collector, Jaisinghpur. The first one, registered as appeal No. 18/2001, was filed on 19.10.2001 against mutation No. 45 whereby Sh. Sunder had inherited the land of his son, Shri Kishan, in village Tarphed and the second, registered as appeal No. 17/2001 was filed against mutation No. 47 on 2.10.2001 against the further inheritance of this land in favour of Smt. Gango. The grounds taken by the petitioners were that Sh. Kishan had executed a Will in their favour on 3.5.1980 in which his father Sh. Sunder was also a witness. However, when Sh. Kishan died, his succession was obtained by his father Sh. The grounds taken by the petitioners were that Sh. Kishan had executed a Will in their favour on 3.5.1980 in which his father Sh. Sunder was also a witness. However, when Sh. Kishan died, his succession was obtained by his father Sh. Sunder in village Tarphed, Tehsil Jaisinghpur, by concealing the fact of the Will. The appellants had contended that this land could not have further been inherited by Smt. Gango. The Sub Divisional Collector dismissed the appeal No. 17/2001 on 22.10.2001 and the appeal No. 18/2001 on 26.2.2002. The petitioners filed two revision petitions No. 189/03 and 190/3 respectively against the two orders of the Sub Divisional Collector before the Divisional Commissioner, Kangra who also dismissed them vide orders dated 7.10.2004. 3. Now these two revision petitions No. 2/05 and 3/05 have been filed before this court. 4. The court in these two petitions has been perused the arguments of counsel for the parties heard. Counsel for the petitioners argued that the wishes of Shri Kishan regarding the deposition of his property had to be respected and in this regard he had executed an unregistered will dated 3.5.1980. In accordance with this will, the mutation of inheritance in respect of the land owned by Shri Kishan in village Harsi was attested vide Mutation No.171. Similar action had to be taken in respect of the prperty of the deceased situated in village Trephad but there the -mutation was attested much later and was in accordance with the provisions of the Hindu Succession Act, 1956 in respect of a male dying intestate. Since Shri Kishan had executed the will dated 3.5.1980 the revenue field staff could not take a different view in respect of the property situated in village Trephad from that regarding the property in village Harsi. On this basis it was clear that Mutation No.45 through which the land in village Trephad was mutated in favour of Shri Sunder, father of Shri Kishan and subsequent Mutation No.47 through which this land was mutated in favour of Smt. Gango, w/o Shri Sunder in whose favour the later had executed a registered will dated 30.10.1990 should be set aside. The courts below had failed to appreciate this point and therefore the order of the Sub Divisional Collector dismissing the appeals in the Cases No. 17 and 18 of 2001 should be set aside along with the order of the Divisional Commissioner, Kangra dated 7.10.2004. 5. The learned counsel for the respondents stated that the revenue authorities had acted rightly in attesting Mutation No.45 in favour of Shri Sunder, father of Shri Kishan since the will of 3.5.1980 was unregistered and not probated. Shri Sunder had executed registered will on 30.10.1990 willing his entire immovable and movable property in favour of his wife Smt. Gango and therefore Mutation No.47 was also correctly attested and there was no reason to interfere with the orders of the lower revenue courts since there were concurrent findings in the matter before the Sub Divisional Collector and the Divisional Commissioner, Kangra. 6. Having perused the record of the case and heard counsel for the parties, I am of the view that Mutation No. 45 was wrongly ^attested in favour of Shri Sunder, father of Shri Kishan when Shri Kishan had already executed an unregistered will dated 3.5.1980, willing his property which he had inherited from .his mother Smt. Pano Devi, to his maternal uncles, this will was uncontested. When the revenue authorities had attested Mutation No. 171 of village Harsi on the basis of this unregistered will of 3.5.1980, a different view could not have been taken regarding the property in village Trephad, Shri Sunder, father of Shri Kishan and therefore not entitled to get the land in village Trephad mutated in his name. The subsequent, mutation No. 47 was also not in order since Mutation No. 45 was attested in violation of the law regarding inheritance. 7. In view of this, this is a fit case for exercise of revisional powers and orders of the Assistant Collector, IInd Grade attesting mutation No. 45 and 47 in respect of Muhal Trephad, are set aside. The orders of the Sub Divisional Collector dated 22.10.2001 and 26.2.2002 dismissing the appeals in case Nos. 17 and 18 of 2001 respectively as well as order of the learned Divisional Commissioner, Kangra dated 7.10.2004 are also set aside. The matter is remanded to the Assistant Collector, IInd Grade, Jaisinghpur to decide the mutation of inheritance regarding the property of Sh. 17 and 18 of 2001 respectively as well as order of the learned Divisional Commissioner, Kangra dated 7.10.2004 are also set aside. The matter is remanded to the Assistant Collector, IInd Grade, Jaisinghpur to decide the mutation of inheritance regarding the property of Sh. Kishan situated in village Trephad afresh in accordance with the law as indicated above. Announced in the open court today the 3.7.2006 The record of the courts below be returned and the case file of this court be consigned to the record room after due completion.