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2009 DIGILAW 806 (HP)

Bholi Devi v. Chanan Kaur thru LRs

2009-09-18

P.MITRA

body2009
ORDER P. Mitra., IAS - This arises from the recommendations made by the Commissioner, Kangra division in revision no. 17/96. 2. The facts of the case in brief are that Sh. Sohan Singh s/o Sh. Natha Singh expired on 30.8.1994. The-concerned Assistant Collector, IInd Grade, conducted certain enquires and vide order dated 25.2.1995 held that the will produced at the time of the mutation bequeathing Sh. Sohan Singh's estate to one Smt. Bholi Devi was not genuine and that the deceased respondent being wife was to inherit the property. The Assistant Collector has further reasoned that since the present petitioner No. 1 Smt. Bholi Devi had served the deceased as a servant and was dependent upon him therefore half of the estate of Sh. Sohan Singh should be given to her while the remaining would go to the respondent (deceased) Mutations were sanctioned accordingly. Feeling aggrieved by this order, the present deceased respondent had preferred an appeal before the Collector Una sub-division who vide order dated 12.12.1995 allowed the appeal and modified the order: of the Assistant Collector to the effect that the entire estate of Sh. Sohan Singh would go to the respondent only. The petitioner No. 1 had thereupon filed a revision before the Commissioner Kangra division who has reached the conclusion that the orders of the lower courts are based on a wrong application of the law and need to be set aside and has recommended accordingly. 3. The learned counsel of both sides were heard. Learned counsel for the petitioners explained the facts stating that the husband of the petitioner Sh. Sohan Singh had expired on 30.8.1994 leaving behind a will in favour of the petitioner No. 1 and other petitioners. Learned counsel stated that Sh. Sohan Singh also had another wife named Smt. Chanan Kaur, present respondent (deceased). The estate of the said Sh. Sohan Singh had been mutated partly in favour of Smt. Chanan Kaur and partly in favour of present petitioner vide mutation no. 99 on 23.3.1995. Learned counsel further stated that the petitioner No. 1 had filed a civil case seeking decree as per the will. Learned counsel clarified that this suit was only against Smt. Chanan Kaur. The present respondents are the LRs of Smt. Chanan Kaur being brothers of Sh. Sohan Singh. Learned counsel further stated that the respondent had filed an appeal against the mutation mentioned earlier. Learned counsel clarified that this suit was only against Smt. Chanan Kaur. The present respondents are the LRs of Smt. Chanan Kaur being brothers of Sh. Sohan Singh. Learned counsel further stated that the respondent had filed an appeal against the mutation mentioned earlier. In that appeal, the petitioners had preferred cross-objections at the appeal stage but this was rejected. The petitioners had also brought two witnesses regarding the will but the Assistant Collector did not consider this. Learned counsel stated that a will does not have to be registered and a mutation attested can always, be subsequently changed in case there is finding of a civil court against the will. 4. Learned counsel for the respondent began his arguments by raising the issue whether a revision can lie against a revision to which he himself answered by saying that it cannot. Further learned counsel stated that Sh. Sohan Singh died issueless and thereupon the entire estate had devolved his legally wedded wife Smt. Chanan Kaur who was also getting pension from HPSEB as widow of Sh. Sohan Singh. He further emphasized the present petitioner No. 1 is not the wife of said Sh. Sohan Singh. At the maximum, she had the right of maintenance. As regards the question whether Sh. Sohan Singh had executed a valid will in favour of the petitioner No.1, learned counsel clarified that there is a case regarding this before the civil court. The will was also sent to a handwriting expert and has been reported to be a forgery; the case in, pending decision. Learned counsel stated that there is not even an iota of evidence that Sh. Sohan Singh ever executed any will in favour of petitioner No. 1. or she had any legal status. The recommendations of the Commissioner should not be accepted. 5. In rebuttal learned counsel for the petitioner stated that this is not a revisiun but recommendation. Further learned counsel stated that the rights of the petitioners are based upon the will and till disapproved, mutation should be sanctioned in their favour. As per learned counsel, the report of the handwriting expert etc. cannot be brought here. The civil case is still pending decision. If civil case goes against petitioner then the mutation can always be amended. 6. As per learned counsel, the report of the handwriting expert etc. cannot be brought here. The civil case is still pending decision. If civil case goes against petitioner then the mutation can always be amended. 6. I have gone through the records of the case, the orders of the lower courts and have also considered the arguments of the learned counsel. As rightly pointed out by learned counsel of the petitioners, a will need not be registered. Secondly a Revenue Officer while attesting a mutation has to consider all available record including a will executed by a deceased estate right holder. However, such a Revenue Officer cannot go into genuineness of a will which can be considered only by civil courts. Therefore in the instant case, the Assistant· Collector who attested the mutation should have gone as per the will if the writing of the will is corroborated by witnesses. Secondly a Revenue. Officer cannot and should not go into issues as to whether one claimant has right to maintenance or share of the property of the deceased or other such questions. As rightly pointed out by learned counsel of the petitioner, the mutation attested can always be revoked in case the civil court reaches the conclusion that the will was not in order. 7. In these circumstances, I found myself in agreement with the conclusion of the Commissioner that the orders of the lower courts are based on a wrong application of law and need to be set aside. Accordingly as recommended the order of the Assistant Collector attesting the mutation and also that of the Collector are set aside. 8. Copies of this order be sent to the parties. The records of the lower authorities be returned and this file be consigned to records after completion. M.R.B.