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2006 DIGILAW 92 (HP)

KALAWATI v. CHET RAM

2006-04-07

RAJWANT SANDHU

body2006
ORDER This appeal has been filed by the appellant under section 14 of the HP. Land Revenue Act, 1954 against an order dated 6.5.1998 passed by the Commissioner Shimla Division in appeal No. 9/98. 2. Brief facts of the case are that the Assistant Collector Second Grade, Shimla attested a mutation No.53 of Mohal Bagog, Tehsil and District Shimla pertaining to the inheritance of one Smt. Gulabo Devi Wd/o Sh. Gusau in favour of the respondents as well as the petitioner on 7.2.1996. The present petitioner titled an appeal; against the same before the Collector, Sub Division Shimla (Urban) on the grounds that the mutation has been attested in favour of the respondent on the basis of a bogus and forged Will. The Collector accepted the appeal on 4.12.1997 and remanded the matter back to the Assistant Collector Second Grade for deciding the mutation afresh. The present respondents held .an appeal before the Commissioner, Shimla Division who held that the mutation has been attested as per a registered ‘Will in consonance of section 109 of the Hindu Succession Act which is applicable in the case. He therefore accepted the appeal on 6.5.1998. It is against this order of the learned Commissioner that the present appeal has been filed before us. 3. The record of the courts below has been called for and examined Written arguments have been submitted on behalf of both the parties which have been perused and placed on the case title. 4. In the written statement on behalf of the appellant it is stated that late Smt. Gulabo Devi, wife of late Shri Gusau was owner in possession of landed property situated at village Hagog comprised in Khata-Khatauni No 97/157, Kita 5 and the said Smt. Gulabo Devi expired on 8.9 1994 leaving behind her only daughter Smt. Kalawati, the present appellant. After the death of Smt Gulabo Devi, the present respondents through some will claimed to be the successors of late Smt. Gulabo Devi through one Shri Durga Ram and on this basis mutation No.53 was attested behind her back on 7.2.1996. An appeal was preferred before the Collector, Shimla (Urban) and the same was decided in favour of the present appellant The respondents went in appeal before the Commissioner, Shimla Division and the same had been decided against the present appellant. Hence, this appeal was being preferred. An appeal was preferred before the Collector, Shimla (Urban) and the same was decided in favour of the present appellant The respondents went in appeal before the Commissioner, Shimla Division and the same had been decided against the present appellant. Hence, this appeal was being preferred. The learned Commissioner while deciding the case had totally ignored the arguments and also wrongly applied the provisions of Section 105 of the Indian Successors Act, 1925. The present appellant being the daughter of Smt. Gulabo Devi was the natural successor of Smt. Gulabo Devis whole legacy. Reference of Section 109 in the order of the Commissioner, Shimla Division also revealed total non-application of mind as this section related to lineal descendant and the respondents were not lineal descendants of Smt. Gulabo Devi. 5. In the written arguments for the respondents Shri Chet Ram and others, it has been stated that since Smt. Gulabo Devi had expired on 8.9.1994, after her death mutation No.53 had been attested in favour of the present appellant Smt. Kalawati as well as respondents. The respondents were legal heirs of late Shri Durga Ram who was entitled to succeed to the property of late Smt. Gulabo Devi on the basis of the registered will. The appeal titled by the appellant against attestation of mutation No.53 was not maintainable before the Sub-Divisional Collector (Urban), Shimla. The mutation was attested on 7.2.1996 and the same was challenged on 2.7.1996 i.e. well beyond the period of limitation. Citations have been listed in the written arguments to buttress the claim of the respondents to the estate of Smt. Gulabo Devi. 6.1 have perused the record of the proceedings before the Revenue Court below and weighed the written arguments filed by both the parties. It is established that Smt. Gulabo Devi had executed the registered will dated 7.1.1987 before the Sub-Registrar Shimla District. As per this Will the beneficiaries were Smt. Kalawati and Shri Durga Ram. Shri Durga Ram pre-deceased Smt. Gulabo Devi as he died on 21.12.1991 While Smt. Gulabo Devi expired on 8.9.1994. In such cases the provisions of Section 105 and 106 of the Succession Act, 1925 are very clear. Section 105 re;»ds as under; - 7. As per this Will the beneficiaries were Smt. Kalawati and Shri Durga Ram. Shri Durga Ram pre-deceased Smt. Gulabo Devi as he died on 21.12.1991 While Smt. Gulabo Devi expired on 8.9.1994. In such cases the provisions of Section 105 and 106 of the Succession Act, 1925 are very clear. Section 105 re;»ds as under; - 7. Section 105(1) if the legatee does not survive the testator, the legacy cannot take effect, but shall lapse and form part of the residue of the testators property, unless it appears by the will that the testator untended that it should go to some other person. (2) In order to entitle the representative of the legatee to receive the legacy, it must be proved that he survived the testator 8. Since the legatee Shri Durga Ram did not survive the testator Smt. Gulabo Devi, he representatives of the legatee are not entitled to receive the legacy. Even Section 106 that reads as under-Section 106 if a legacy to given to two persons jointly, and one of them dues before the testator the other legatee takes the whole indicates that since Shri Durga Ram died before the testator Smt. Gulabo Devi, the other legate- viz. Smt Kalawati would be entitled to the whole of the estate of Smt. Gulabo Even the "Shajra Nasab” that is part of the record of the mutation No.53 indicates clearly that Smt. Kalawati was the sole issue of Smt. Gulabo Devi and if the provisions of the Hindu Succession Act are taken to account she would be the sole heir to the property of Smt Gulabo Devi in if the registered will purportedly executed by Smt. Gulabo Devi in J987 were to be disputed. Clearly the learned Divisional Commissioner has not appreciated the provisions of the Succession Act, 1925 and has even made incorrect reference to Sections of the Hindu Succession Act that do not exist in the statue. He has not applied his mind adequately in the case 10 Taking into-the account the position stated above the appeal is accepted and the case is remanded to the Assistant Collector IInd Grade to decide the matter afresh keeping in view the conclusions above and the provisions of the Succession Act, 1925 Announced in the open court today on the 4th April, 2006. The file of this court be consigned to the record room after due completion