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2015 DIGILAW 1820 (HP)

SAVITRI v. DESH RAJ

2015-12-08

NARINDER CHAUHAN

body2015
ORDER : 1. This revision petition under Section 17 of the H.P. Land Revenue Act, 1954, is based on the recommendations made by the Id. Commissioner, Shimla Division, dated 08.09.2011, in revision petition No. 20/2009, filed before him, against the order dated 28.11.2008, passed by the Collector, Sub-Division, Shimla (Rural), in Case No. 15-VIII/02, whereby he has upheld the order of the A.C. IInd Grade, dated 13.06.2002 passed on mutation No.375, vide which the mutation of inheritance of Shri Lachhmi Ram, attested in favour of the present respondent, Shri Desh Raj, bassed on a registered 'will'. 2. Briefly stated, the facts of the case are the Shri Lachhmi Ram son of Balak Ram, resident of village Doomi, Pargna Kamli, Tehsil & Distt. Shimla, executed a registered 'will' (deed No. 31) on 21.08.1990, in favour of Shri Desh Raj, present respondent, qua the land situated in revenue estate Sheela Kalan and Doomi, by cancelling his earlier 'will' dated 3.3.1989. After the death of Shri Lachhmi Ram, the A.C. IInd Grade Shimla (Rural), has attested a mutation No. 375 on 13.6.2002, in favour of the respondent on the basis of the aforesaid 'will'. 3. Feeling aggrieved by the above order of the A.C. IInd Grade, the present petitioners, Smt. Savitri Devi & Krishna Devi, filed an appeal before the Collector, Sub-Division, Shimla (Rural) mainly on the ground that there is no legal and valid 'will' in favour of all legal heirs/appellants. That the impugned mutation was neither taken up for disposal in the presence of estate right holders, or other respectable persons of the area. The Id. Collector, after hearing the parties, dismissed the appeal vide the order dated 28.11.2008, passed in Case No. 15/VIII/2002, holding that the A.C. IInd Grade, has righty attested the mutation under challenge and there appears no error on his part and upheld the same. 4. Still dissatisfied, the petitioners has filed a revision petition before the Commissioner, Shimla division, who observed that: .......there are more than sufficient reasons to conclude that neither any summary enquiry was conducted nor both legal heirs were heard by the Asstt. Collector before sanction of the mutation. The Id. Sub-Divisional Collector, Shimla (Rural) also overlooked these mandatory and substantial short comings on the part of Asstt. Collector resulting into miscarriage of justice." Therefore, the Ld. Collector before sanction of the mutation. The Id. Sub-Divisional Collector, Shimla (Rural) also overlooked these mandatory and substantial short comings on the part of Asstt. Collector resulting into miscarriage of justice." Therefore, the Ld. Commissioner referred the matter to this court with his recommendations for setting aside the orders passed by both the courts below and to remand the case back to the Assistant Collector, Shimla (Rural) to hold a summary enquiry and decide the mutation afresh. 5. I have heard the Id. Counsel for both the parties. Ld. Counsel for the petitioner argued that the dispute is with regard to the mutation of inheritance of their father Shri Lachhmi Ram, and the present petitioners being his daughters, are his legal heirs. The respondent, who is a nephew in relation has get the will registered in his name on the basis of which, the A.C. IInd Grade, without affording opportunity of being heard to both the daughter, attested the mutation in his favour. The Ld. Counsel, therefore, urged that the recommendations made by the Commissioner my kindly be accepted. 6. In reply, the Ld. Counsel for the respondent argued that the A.C. IInd Grade had given ample opportunity to the petitioners to present their case and to file the objection, if any, but they failed to do so and finally the mutation was attested by A.C. IInd Grade on 13/06/20002 when one of the petitioners Smt. Savitri Devi was present before him. It was further stated that, if the petitioners have any doubt with regard to the genuineness of the will, they have a remedy to challenge the same before the civil court. Therefore, the Ld. Commissioner has wrongly recommended for remanding the case back to the Assistant Collector, for holding summary enquiry and to decide the mutation afresh, and the same deserves to be declined. 7. Having considered the arguments advanced by the Id. Counsel for both the parties and on perusal of the record of the courts below, the contents of the registered will (deed No. 31) dated 21.08.1990 executed by late Shri lachhmi Ram, in favour of the present respondent, clearly depicts that the earlier will (deed No. 192) dated 03.03.1989, executed in favour of his daughters has been cancelled. Counsel for both the parties and on perusal of the record of the courts below, the contents of the registered will (deed No. 31) dated 21.08.1990 executed by late Shri lachhmi Ram, in favour of the present respondent, clearly depicts that the earlier will (deed No. 192) dated 03.03.1989, executed in favour of his daughters has been cancelled. The petitioner, if aggrieved or have any doubts regarding the correctness and genuineness of the last will, they would have agitated the same in the competent court of law for its genuineness and correctness. Further, on perusal of the mutation No. 375, which is available on the file of the Assistant Collector, it is clear that ample opportunities have been provided to the petitioners when the mutation was taken for attestation on 06.05.1999, 20.08.1999, 28.10.1999, 25.11.1999, 16.12.1999, 14.01.2000, 9.2.2000, 05.10.2000, 11.1.2002 and 13.06.2002 during the tour of the A.C. IInd, to present their case before him but they failed to file any objection/document to challenge the genuineness and correctness of the will. Ultimately, on 13.06.2000, the Assistant Collector has attested the mutation in presence of general public and Smt. Savtri Devi, petitioner No. 1 when she deposed/stated before the A.C. IInd Grade that there is no possibility of compromise with Shri Desh Raj, therefore, the mutation should be attested. It transpires that the petitioners have not raised any objection regarding genuineness and validity of will. The execution of will dated 21.08.1990, clearly proves that the purpose of the testator Shri Lachmmi Ram is to deviate natural line of succession i.e. present petitioners and there is clear mention about cancellation of his earlier will dated 3.3.1989. Further, the Ld. Collector, in appeal has also clearly held that the legality of will is not with in his competency and the same would have been challenged in the competent court of law. 8. In view of the above position, I do not agree with the observations of the Ld. Commissioner, Shimla Division, who failed to take note of the legal aspect of the case and has wrongly recommended the present revision for setting aside the orders passed by the courts below. Hence, the same are declined and the orders passed by the A.C. IInd Grade, dated 13.06.2002 on mutation No. 375 and that of the Ld. Collector, Sub-Division, Shimla (Rural) dated 28.11.2008 are upheld. The revision petition is accordingly, dismissed. 9. Hence, the same are declined and the orders passed by the A.C. IInd Grade, dated 13.06.2002 on mutation No. 375 and that of the Ld. Collector, Sub-Division, Shimla (Rural) dated 28.11.2008 are upheld. The revision petition is accordingly, dismissed. 9. Announced in the open court today the 8th December, 2015. The records of the courts below be returned and the file of this court be consigned to the record room after due completion.