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2013 DIGILAW 19 (JK)

Zaina & Ors. v. State of J&K & Ors.

2013-01-03

MUZAFFAR HUSSAIN ATTAR

body2013
1. The petitioners have challenged an order of mutation passed after a lapse of 45 years. Though the learned Financial Commissioner, Revenue in the impugned order has referred to the contention of the learned counsel for the petitioners that Naib Tehsildar had no power to attest the disputed mutation as such the same would require to be set aside. It was submitted by the learned counsel for the revision petitioners, the adopted son of Malla Rajab, that the mutation was attested on 25.5.1967 and the property of Malla Rajab was equally distributed on the basis of varasat nama duly registered by the Sub Registrar, Kulgam between the adopted son and the real son of Malla Rajab. The learned Financial Commissioner Revenue in the impugned order has stated that at the Jme the order of mutation was passed there was a custom which excluded the daughters from inheritance who are married out of family. It is for this reason the learned Financial Commissioner stated in the impugned order that there was no justification for opening mutation after a lapse of 45 years. 2. Learned counsel further submitted that the order of mutation passed by Naib Tehsildar as also the order passed by the Financial Commissioner Revenue are illegal. Learned counsel referred to paragraphs 7 and 29 of the Standing Order 23-A and submitted that the order of mutation No. 344 passed by Naib Tehsildar on 25.5.1967 naving not been passed in accordance with the procedure provided in Standing Order 23-A is nullity. Learned counsel further submitted that the parties are governed by the Muslim Law and the daughter is entitled to inherit her deceased father. Learned counsel also referred to the J&K Muslim Personal Law (Shariat) Application Act, 2007 to support his contention. 3. The claim projected by the petitioners before the revenue authorities as also in this writ petition cannot be sustained for the following reasons: 4. Perusal of the order on Mutation no. 344 passed by Naib Tehsildar on 25.5.1967 (annexure-A of the writ petition) would show that order on mutation has been passed on the basis of a will deed which has been registered by Sub-Registrar, Kulgam. A mention of the same is made in column 12 of the mutation order. The Naib Tehsildar has not passed order on mutation in a disputed case. He has simply attested the mutation on the basis of the registered will deed. A mention of the same is made in column 12 of the mutation order. The Naib Tehsildar has not passed order on mutation in a disputed case. He has simply attested the mutation on the basis of the registered will deed. The reierence made to paragraphs 7 and 29 of Standing Order 23-A is not attracted in the facts of this case in view of the mandate contained in Section 24 of the Land Revenue Act. The Naib Tehsildar, who otherwise is competent to pass such mutation, was duty bound to attest the order on mutation on the basis of registered will deed. 5. It is neither pleaded in the writ petition nor submitted at Bar that the said will deed has been challenged at any point of time. The Naib Tehsildar while passing order on mutation no. 344 has not determined the rights of the parties but has simply passed the said order on the basis of a registered will deed. In absence of challenge to the said will deed, the petitioners are precluded in law to challenge the mutation order. 6. Learned counsel for the petitioners referred to the Division Bench judgment of this Court passed in LPA no. 7/2010. Learned counsel referred to paragraph 10 of the said judgment and submitted that the rights of the adopted son stood extinguished on the advent of the Act of 2007. In this case, the issue has been settled in terms of the registered will deed and cannot to be re-opened, as already said, until such time the will deed is called in question and is declared to be illegal by the court of competent jurisdiction. 7. For the above stated reasons, this petition is without any merit and is, as such, dismissed in limine alongwith connected CMP.