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2009 DIGILAW 115 (PNJ)

Harminder Singh v. Financial Commissioner, Punjab

2009-01-15

RANJIT SINGH

body2009
JUDGMENT Ranjit Singh, J.:-The question in the petition is whether the mutation is to be done on the basis of a will or on the basis of natural succession. There is no dispute between the parties that deceased Malkiat Singh had executed a will dated 17.5.1988 but this will was a subject matter of dispute during the life time of Malkiat Singh on the ground that there had been a revocation deed prepared to cancel the said will. 2. Initially, the mutation was sanctioned in favour of respondent No.5 on the basis of natural succession. This order was set-aside in appeal and the case was remanded back to Assistant Collector Ist Grade for fresh decision. Respondent No.5 then impugned the said order but remained unsuccessful. He also filed a review application, which was rejected. Assistant Collector Ist Grade then sanctioned mutation in favour of the petitioner on the basis of a registered will dated 17.5.1988. This order was challenged by respondent No.5 before Collector, who set-aside the same and again remanded the case back to Assistant Collector for deciding afresh. The petitioners then filed an appeal against this order whereas respondent No.5 filed a cross appeal before the Commissioner. The appeal filed by the petitioners was dismissed and that of respondent No.5 accepted. These two orders were impugned by the petitioners by filing revision before the Financial Commissioner, who has dismissed the same and hence, the present writ petition. 3. The counsel for the petitioners primarily contends that once there was a registered will, the authorities are not justified in ignoring the same and allowing mutation on the basis of a natural succession. When his attention was invited to the fact that the will dated 17.5.1988 had subsequently been cancelled/revoked during the life time by late Malkiat Singh, the counsel would say that the authorities had no evidence before them to come to such a finding. 4. The manner in which the learned counsel for the petitioners has made submissions would show that he would wish this Court to completely ignore the revocation deed and rely upon the will, which according to him was registered. It may need a notice that Malkiat Singh, during his life time, had filed a civil suit for possession, which though was dismissed but one of the issues decided therein related to the revocation of will by late Malkiat Singh. It may need a notice that Malkiat Singh, during his life time, had filed a civil suit for possession, which though was dismissed but one of the issues decided therein related to the revocation of will by late Malkiat Singh. This issue (No.3) was decided in favour of plaintiff, late Malkiat Singh and this was not even disputed by counsel for the defendants. In this background, now to say or to challenge the revocation/cancellation of this will, would be too late and futile. The submission made by counsel for the petitioners by relying upon the observations made in the case of Chattar Pal Vs. Mandir Thakurji and others, 2003 (2) PLJ 191, to say that mutating authority is required to find out the person in lawful possession of the property on the date of the application and that order by the Assistant Collector would not be justified in ordering mutation relying upon finding of the Civil Court without applying his independent mind would not help the cause of the petitioners in this case. It is not the findings of possession alone that were in issue in civil suit. The authorities are justified in relying upon the finding about the revocation of this will because it is the will which is made the basis by the petitioners to seek mutation in their favour and not the possession. The ratio of the law laid down in Chattar Pal’s case (supra) thus, would not be attracted to the facts of the present case. If the will, which is the primary base by the petitioners to seek mutation in their favour, stood revoked/cancelled by a judicial pronouncement during the life time of a person executing the same, there could not have been any better evidence in this regard before the revenue authorities. Accordingly, there is no justification to interfere with the impugned order, where mutation has been sanctioned on the basis of natural succession by ignoring the will, which stood revoked. No occasion, thus, would arise to interfere in the impugned order in exercise of writ jurisdiction. Dismissed. -----------------