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2010 DIGILAW 1344 (ALL)

Rajnath v. State Of U. P.

2010-04-26

PRAKASH KRISHNA

body2010
JUDGMENT 1. Heard Sri B.B. Paul, learned counsel for the petitioner and Sri Babu Lal Ram, learned Standing Counsel for the respondent no.1. 2. The present writ petition arises out of proceedings under Section 34 of U.P. Land Revenue Act. It is not in dispute that Smt. Daulti Devi was the recorded tenure holder of the property in question. She, according to the respondents, on 24-11-1972, executed a registered will in favour of her daughters. After the death of Smt. Daulti Devi, a dispute regarding mutation arose between the parties. The petitioner claimed mutation of the property left by the deceased Smt. Daulti Devi on the basis of an unregistered will. The said will is dated 20-2-1995. The two authorities below have held that it is but natural for Smt. Daulti Devi to have executed the will in favour of her daughters. The petitioner claims himself as son of one of the daughters of Smt. Daulti Devi. 3. Sri B.B. Paul, learned counsel for the petitioner submits that the registered will having not been proved, as the marginal witnesses were not called, the authorities below erred in law in ordering the mutation of the names on the basis of the said will dated 24-11-1972. He further submits that at that point of time Smt. Daulti Devi could not have executed the will as the provisions came subsequently by means of U.P. Act No. 30 of 1975. 4. Learned Standing Counsel, on the other hand, submits that in view of the findings recorded by the two courts below and the fact that the contesting respondents are the daughters, it is but natural that Smt. Daulti Devi had executed the will as set up by her daughters.They are nearer than the present petitioner in relation, with Smt. Daulti Devi. 5. I have given careful consideration to the aforesaid submissions of the learned counsel for the parties and perused the record. 6. It is not in dispute that the present writ petition arises out of mutation proceedings which are summary in nature. Sri B. B. Paul, learned counsel for the petitioner with all fairness referred a Division Bench decision of this Court in Jai Pal Vs. Board of Revenue, wherein this Court has held that in such matters normally a writ court should not interfere. Sri B. B. Paul, learned counsel for the petitioner with all fairness referred a Division Bench decision of this Court in Jai Pal Vs. Board of Revenue, wherein this Court has held that in such matters normally a writ court should not interfere. However, he submits that it is an exceptional case in view of the fact that the will as was set up by the contesting respondents has not been proved and, therefore, this Court should interfere in the present writ petition. 7. I am not at all impressed by the said argument in view of the peculiar facts of the present case. It is not denied that the contesting respondents are the daughters of the last recorded tenure holder. In this view of the matter, it is very natural that the property should go to them. The petitioner is daughter's son and will not inherit the property in dispute in presence of daughters of the last recorded tenure holder. The remedy of the petitioner is to get the will proved in a duly constituted suit before the revenue or civil court, as he may be advised. It goes without saying that the findings recorded by the revenue courts in mutation proceedings are summary in nature and they are always subject to the decision given by a competent court of law in a duly constituted suit or proceeding. 8. The writ petition is dismissed summarily.