Research › Search › Judgment

J&K High Court · body

2009 DIGILAW 532 (JK)

Gulshan v. State Of J&K

2009-11-04

A.K.Shan

body2009
1. This revision petition is directed against the order dated 30.4.2008 passed by Additional Deputy Commissioner with powers of Commissioner Agrarian Reforms Ramban (here in after as Commissioner) who has dismissed the appeal filed before him by the petitioner against an order passed in inheritance mutation No: 1563 dated 20.5.2005, attested by Tehsildar Banihal. The impugned order has been sought to be set aside on variety of grounds mentioned in the revision petition. 2. In order to dispose of this revision petition relevant facts of the case are required to be taken note which are as under:- As per record received from court below one Mohd Ramzan s/o Mukta was owner of land situated in village Bohardar Tehsil Banihal. He had three sons namely Mohd Hanif, Ab. Rashid and Ghulam Rasool besides a daughter Zarina. Mohd Hanif was Government employee and had three daughters namely Hafiza, Gulzara and Gulshan. He died during life time of his father, who himself died on 26.3.2004. Hanif had married his two elder daughters during his life time. After the death of Mohd Hanif, his father Mohd Ramzan bequeathed his land in favor of his other two sons by a will deed duly attested on 26.5.1998. After the death of Mohd Ramzan, daughter of Mohd Hanif, Gulzara Begum approached the Girdawar Halqa Neel and requested him to attest mutation of inheritance in her favour and favour of her two sisters. The Girdawar submitted report to Tehsildar Banihal who took up the matter at headquarters on 27.5.2004 for disposal. 3. Gulzara Begum along with her sister Gulshana and her uncle Ab. Rashid appeared before the said Tehsildar. Ab. Rashid told the Tehsildar that after the death of Mohd Hanif his father Ramzan executed the will supra, in his favour as well as in favour of his brother Gh. Rasool and made a request for attestation of inheritance mutation in their favour on the basis of will deed. On the other hand Gulzara Begum told the Tehsildar that after the death of her grandfather Mohd Ramzan, her father Mohd Hanif is entitled to 1/3rd property and as such inheritance mutation to that extend be attested in her favour and as well as in favour of her other two sisters. She disputed the execution of the will at the hands of her grandfather by submitting that same was obtained by exercising fraud and deceitful means. 4. She disputed the execution of the will at the hands of her grandfather by submitting that same was obtained by exercising fraud and deceitful means. 4. So far petitioner Gulshana is concerned she told the Tehsildar that her father Mohd Hanif was looking after well his father but after his death her uncles managed the execution of the will by practicing fraud just to deprive her and her sisters from right of inheritance. She also prayed for attestation of inheritance mutation in her favour and her two sisters to the extent of 1/3rd of the land left behind by her grand father Mohd Ramzan. As the Tehsildar wanted to know the views of Hafiza Begum and Gh. Rasool so he adjourned the proceeding to 31.5.2004 and directed petitioner, her sister Gulzara and uncle Ab. Rashid to bring them before him. The matter was taken up by Tehsildar on 28.5.2004 when Ghulam Rasool and Hafiza appeared before him. He recorded their statements. Ghulam Rasool admitted before the Tehsildar that he has no objection in case inheritance mutation is attested on the basis of will made by his father. 5. To the contrary Hafiz Begum repeated the same story as told by her two sisters. Although Gulam Rasool and Hafiza Begum appeared before the Tehsildar but Ab. Rashid, Gulzara Begum and Gulshana did not appear. The matter was directed to be taken up for further proceedings by Tehsildar on 17.5.2005 when he recorded the statements of four persons who admitted that the younger sisters of Hafiza had been married who were residing with their husband and as per the custom of the area they were not entitled to inherit the property of their father. They also disclosed that matter was settled by the parties after the death of Mohd Hanif on the condition that pensionary and monitory benefits arising from the death of Mohd Hanief will be enjoyed by his daughters only and the landed property will be inherited by Ab. Rashid and Ghulam Rasool. They have also admitted that in this background Mohd Ramzan executed a will in favour of his sons Ab. Rashid and Ghulam Rasool. 6. It was finally on 20.5.2005 the Tehsildar attested inheritance mutation on the basis of will supra in favour of Ab. Rashid and Ghulam Rasool. Rashid and Ghulam Rasool. They have also admitted that in this background Mohd Ramzan executed a will in favour of his sons Ab. Rashid and Ghulam Rasool. 6. It was finally on 20.5.2005 the Tehsildar attested inheritance mutation on the basis of will supra in favour of Ab. Rashid and Ghulam Rasool. It was also held by the Tehsildar that as per the custom prevalent in the area the married daughters residing with their husband are not entitled to inherit any property. The mutation was attested in presence of Abs. Rashid and some other persons. 7. Aggrieved by the nature of the mutation petitioner preferred an appeal before the Commissioner arraying her uncles as respondents. She did not array her two sisters as party in the appeal. She set up a case before the appellate court that she was Dukhter Khana Nasheen and was entitled to inherit the property of her father. She also alleged that Mohd Ramzan has executed a will against the provision of Mohammedan Law, as he exceeded his right of making will without the consent of other heirs. 8. According to her she was not summoned at the time of attestation of mutation. The Commissioner dismissed the appeal by upholding the order passed on inheritance mutation and further observed that the petitioner and her two sisters were at liberty to challenge the will deed in the Civil Court. 9. Since the learned counsel for the petitioner stopped appearing from 26.6.2009, so the learned counsel for the respondents has been heard, as revision petition cannot be dismissed for want of prosecution. 10. Admittedly the mutation in question is inheritance mutation and attested under the provision of Land Revenue Act and Rules made there under. The provisions of the Ag. Ref. Act are not even remotely attracted in the present case. The petitioner was thus to file the appeal before the Collector Land Revenue Act but preferred the same before the Additional Deputy Commissioner with powers of Commissioner Agrarian Reforms Act who had no jurisdiction to entertain or dispose of the same. As per Land Revenue Act no appeal can be filed before the Additional Deputy Commissioner or Commissioner under the Agrarian Reforms Act against an order passed by the Tehsildar. 11. Thus the order impugned is patently illegal and not sustainable. As per Land Revenue Act no appeal can be filed before the Additional Deputy Commissioner or Commissioner under the Agrarian Reforms Act against an order passed by the Tehsildar. 11. Thus the order impugned is patently illegal and not sustainable. The court below has not taken into consideration its jurisdiction to decide the appeal and has thus committed an illegality by disposing of the appeal on merits. He ought to have dismissed the appeal for want of jurisdiction which has not been done by him. The petitioner was also supposed to file appeal before the Collector. As the order impugned is fraught with illegality having been passed without jurisdiction so the same is required to be set aside. 12. Accordingly this revision petition is allowed and the order impugned is set aside being without jurisdiction with liberty to petitioner to approach to competent forum. 13. Record of the court below be sent back and file of this Tribunal be consigned to record after due compilation.