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2006 DIGILAW 314 (HP)

BABU RAM v. PREM CHAND

2006-10-10

RAJWANT SANDHU

body2006
ORDER 1. This revision petition arises out of the recommendation made by the learned Divisional Commissioner, Kangra Division in revision petition No. 258/94 dated 14.7.1998 vide which it has been observed that the attestation of mutation in respect of the tenancy land on the basis of the registered Will is against the provisions of section 45 of the Tenancy Act and required to be set aside. / 2. Brief facts of the case are that the Assistant Collector, IInd Grade Nurpur attested the mutation No.202 of Village Jachh, Tehsil Nurpur, Distt. Kangra vide on 13.5.1993 vide which inheritance of Nathu ram deceased (predecessor in interest of present petitioner and respondents) was sanctioned in favour of Shri Gian Chand and present respondent No.1 (Prem Chand), sons of Shri Nathu ram on the basis of registered Will. This order of Assistant Collector, 11nd Grade was assailed in appeal by the present petitioner, Shri Babu Ram before the Collector, Sub-Division, Nurpur on the ground that the mutation was attested by the Assistant Collector, 11nd Grade, on the basis of a forged document and that since the land was acquired by Shri Nathu Ram deceased under Section 104 of the tenancy and Land Reforms Act, he was not competent to transfer the same by way of Will as per provision of the aforesaid Act. The learned Collector, dismissed the appeal vide order dated 25.7.1994 holding that once the proprietary rights are conferred on a tenant, his succession is governed under the Hindu Succession Act, 1956 and the mutation was rightly sanctioned by the Assistant Collector, 11nd Grade in favour of the respondent as per the registered Will of Shri Nathu Ram. 3. Feeling aggrieved by this order of the Collector, Nurpur, Shri Babu Ram challenged it in revision before the Divisional Commissioner, Kangra who, vide his order dated 14.7.1998, has recommended the matter to this court observing that Shri Nathu Ram deceased was only a tenant and he was not legally competent to will his tenancy land in view of the specific provisions of Section 45 of the H.P. Tenancy and Land Reforms act which provides that incase of death of a tenant, the tenancy shall devolve on male .....descendants and if there are no such males, then only to other categories. He has further held that the tenancy has to devolve on all the four sons in equal shares and that the registered will also did not specifically mention the tenancy land. In fact the will mentioned khasra No. 436 which is not involved in the present dispute. He recommended that the orders passed by the courts below are required to be set aside. 4. The record of the case has been perused, Shri Babu Ram, petitioner is not present inspite of service or through counsel. Only counsel for respondent, Shri Prem Chand is present. He opposed the recommendation of the learned Divisional Commissioner in the matter while stressing that tenancy of Shri Nathu Ram automatically converted to ownership due to the H.P. Tenancy and Land Reforms Act, 1972 coming into force and therefore Shri Nathu Ram was fully within his rights in executing a Will in respect of the area for which he acquired the ownership rights. 5. It appears to me that Divisional Commissioner, Kangra has concluded that Shri Nathu Ram was a tenant at the time when he died as the proprietary rights had not been conferred on him yet by the Land Reforms Officer. He was therefore not competent to will his tenancy land in view of the specific provisions of Section 45 of the H.P. Tenancy and Land Reforms Act, 1972. Shri Nathu Ram died on 25.3.1981 and he had executed his will on 1.6.1979. The H.P. High Court has held in case "Daulat Ram & ors versus State of H.P. & ors., 1979 SLC page 215" that the proprietary rights are automatically conferred on the tenants on the date when the H.P. Tenancy and Land Reforms Act, 1972 became operational. This date is 04.10.1975 when the rules for implementation of the Act were notified. There is no evidence that in this case any person had a claim on account of being a protected category of owner or there was any possibility of filing of an application for resumption of the land. Therefore, in effect Shri Nathu Ram became owner of the land under tenancy w.e.f. October 1975 and therefore was fully competent to will this land in any manner he chose. Therefore, in effect Shri Nathu Ram became owner of the land under tenancy w.e.f. October 1975 and therefore was fully competent to will this land in any manner he chose. The recommendation of the Divisional Commissioner made by his order dated 14.7.1998 for setting aside the orders of the Collector, Nurpur dated 25.7.1994 and the Assistant Collector, 11nd Grades order dated 23.3.1993 attesting mutation No.202 vide which inheritance of Shri Nathu Ram was sanctioned in favour of Shri Gian Chand and Shri Prem Chand on the basis of registered will is not accepted. 6 Announced in the open court today the 10.10.2006. 7. Records of the courts below be returned and the case file of this court be consigned to the record room after due completion.