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2010 DIGILAW 1719 (RAJ)

Brij Mohan v. Mahaveer Prasad

2010-10-06

PRAMIL KUMAR MATHUR

body2010
MATHUR, M.—This second appeal has been preferred under Section 76 of the Rajasthan Land Revenue Act, 1956 against the judgment dated 23.10.2008 passed by learned Additional Divisional Commissioner, Kota in appeal No. 106/08 `Brijmohan vs. Mahaveer Prasad' whereby he has rejected the first appeal presented by appellant Brijmohan and maintained the judgment dated 4.7.2008 passed by Tehsildar Ladpura District Kota. 2. Brief facts of the case which lead to this appeal are that appellant Brijmohan has filed an application before learned Tehsildar Ladpura District Kota stating that his uncle (Tauji) deceased Ramratan has executed a Will dated 7.6.2007 which pertains to land bearing khasra No. 270 area 0.92 hectare situated at village Balita Tehsil Ladpura District Kota in his favour. So mutation of aforesaid land be effect in his name. 3. After giving hearing opportunity to natural heirs of deceased Ramratan, learned Tehsildar on 4.7.2008 ordered to make mutation in favour of respondents No. 1 & 2 on the basis of registered Will dated 27.2.2007 executed by Ramratan in favour of respondent No. 1 & 2 and also on the basis of being natural heirs of deceased Ramratan. 4. Being aggrieved by order dated 4.7.2008 passed by learned Tehsildar Ladpura District Kota, appellant Brijmohan filed first appeal before the Additional Divisional Commissioner, Kota who also by his judgment dated 23.10.2008 rejected the appeal filed by the appellant Brijmohan. Hence, appellant Brijmohan has filed this second appeal. 5. I have learned the arguments of learned counsel for the rival parties. 6. Learned counsel for the appellant has submitted that both the lower Courts have passed the impugned judgments against the evidence and settled principles of law. This is well settled that last and final `Will' will prevail and registration for the will is not compulsory. A registered Will does not have an upper had on an unregistered Will. Mere registration does not strengthen the case of respondents because registered Will. On the perusal of order passed by the learned lower Courts it is clear that mutation was attested on the basis of testamentary documents not on the basis of inheritance, so according to the settled principles of law, subsequent and last Will shall prevail. In these circumstances, by ignoring the settled principles of law and giving importance to the earlier Will, both the lower Courts have committed mistake in passing impugned judgments. In these circumstances, by ignoring the settled principles of law and giving importance to the earlier Will, both the lower Courts have committed mistake in passing impugned judgments. Hence, second appeal be allowed and order passed by the Additional Divisional Commissioner, Kota and Tehsildar Ladpura District Kota respectively on 23.10.2008 and 4.7.2008 be set aside and mutation be recorded in favour of the appellant. 7. On the contrary, learned counsel for the respondents No. 1 & 2 has submitted that mutation proceedings is purely fiscal proceedings, no doubt that registration of Will is not necessary, but in mutation proceedings no right and title can be decided if appellant has any grievance about his right and title. He can get it decided from the competent Civil Court. In mutation proceedings, appellant cannot dispute the validity of the registered Will. Respondents are natural heirs of deceased Ramratan, so mutation was rightly opened in their names. Hence, second appeal presented by the appellant be rejected. He has invited my attention to the following citations: 1. Brij Sunder & Ors. vs. Kamlesh & Ors. 2009(1) RRT page 500 2. Om Prakash vs. Ashok Kumar & Anr. 2008(1) RRT page 241 = RLW 2008(1) RJ 41 3. Nemichand & Ors. vs. Kisturi & Ors. 2009(1) RRT page 381 4. Jagdish vs. Smt. Sukali & Anr. 2009(1) RRT page 376 5. Narayan & Ors. vs. Rukma & Ors. 1998 RRD page 553 6. Jethu Singh vs. Bhanwar Singh & Ors. 2003(1) RRD Page 650 = RLW 2003 RJ 51 (HC) 7. Harvilas vs. Vidhyadevi & Ors. 2004 RRD page 727 = RLW 2005(1) RJ 70 8. Jamna Lal & Ors. vs. Smt. Gopi Bai & Ors. RLW 2003(1) Raj. page 512 8. By agreeing with arguments advanced by learned counsel for respondents No. 1 & 2, learned counsel for State requested that this appeal has no legal force, hence deserves to be dismissed. 9. I have given my thoughtful consideration to the rival contentions and scanned the matter carefully. 10. Before considering the factual and legal aspect of the present appeal, it is pertinent to mention that Rajasthan Land Revenue (Land Records) Rules, 1957 prescribes the procedure about the mutation proceedings also. Rule 132 of the above Rules mandates that "in case of transfer by gift, sale, bequest or mortgage, the Patwari should ascertain whether the deed has been registered or not. Rule 132 of the above Rules mandates that "in case of transfer by gift, sale, bequest or mortgage, the Patwari should ascertain whether the deed has been registered or not. He should personally inspect it and in case it is not registered he will not open mutation." So, provision of Rule 132 apparently casts imperative duty on the concerned authority not to open the mutation on the basis of unregistered Will. 11. In the present case, this fact is not disputed that so called Will executed in favour of appellant Brijmohan on 7.6.2007 is unregistered Will. Thus in the background of Rule 132 of the Rajasthan Land Revenue (Land Records) Rules, 1957, the concerned authorities did not make any mistake or irregularity by not effecting the mutation on the basis of unregistered Will dated 7.6.2007 in favour of the appellant Brijmohan. 12. In my considered view, submission made by the learned counsel for the appellant could not be made basis for holding the mutation entered in favour of respondents No. 1 & 2 as such illegal because of foundation of entering their names in the mutation was not only the fact that they are holder of registered Will executed by deceased Ramratan but also that they are the natural heirs of deceased Ramratan. 13. Moreover, the mutation proceeding are not judicial proceedings in which right and title to property is determined by setting the issues that which Will, whether earlier or later, registered or unregistered shall prevail. Neither mutation proceedings are intended to decide the intricate questions of law nor mutation proceedings are for final settlement of right and title. 14. Mutation proceedings are purely fiscal proceedings in the interest of the State for deciding actual claimant who will be liable for payment of revenue. If any person claims right and title to such property, he can establish his claim before appropriate forum. So keeping in view the facts and circumstances of the case under consideration, concurrent judgments of the learned Lower Courts are valid, proper, reasonable and do not suffer from any infirmity. 15. In view of foregoing discussions and observations, I do not find any force in this second appeal. Hence, this second appeal is hereby dismissed with no order as to costs. Pronounced in open Court.