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2015 DIGILAW 426 (JK)

Ab. Gani v. Financial Commr.

2015-08-19

BANSI LAL BHAT

body2015
JUDGMENT : Bansi Lal Bhat, J. 1. This writ petition is directed against the order dated 16.06.2011 passed by Respondent No. 2 read with judgment and order dated 22.10.2013 passed by respondent No. 1, in terms whereof the Financial Commissioner, Revenue, Jammu & Kashmir, Srinagar, has held that the mutation has been attested at a time when Shariat Act of 2007 v/as already in force and the Mutating Officer was bound to attest the mutation as per the Muslim Personal Law of inheritance, therefore, he accepted the reference of the Additional Commissioner, Kashmir, Srinagar. The mutation was set aside and the Tehsildar concerned was directed to pass fresh order strictly in accordance with the Muslim Personal law after conducting de novo enquiry and hearing all the concerned parties. The petitioners have invoked the writ jurisdiction of this Court under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir for issuance of a writ of certiorari for quashing the orders dated 16.06.2011 and 22.10.2013 passed by Respondents 1 & 2. They have also sought writ of mandamus directing the respondents not to change the Mutation No. 108 attested in favour of the petitioners and keep it intact with further prayer that the respondents more particularly respondent No. 3 be directed not to act upon the impugned orders passed by respondents 1 & 2. The factual matrix of the case may briefly be adverted to. The estate holder namely Abdul Khaliq Lone died and left behind the petitioners and respondent No. 5 as his legal heirs. It is stated that after the death of the estate holder, the attesting authorities attested the Mutation No. 108 of the landed property of the deceased in presence of his legal heirs including the respondent No. 5. It is further stated that at the time of attestation of mutation in question, the respondent No. 5 stated before the mutating authority that she wants to relinquish her share in favour of other legal heirs of the deceased and accordingly signed the mutation order sheet in presence of other legal heirs and also executed an undertaking wherein she has clearly stated that she is relinquishing her share in favour of other legal heirs in lieu of Rs. 30,000/- and consented for mutation of the landed property of the deceased Abdul Khaliq Lone in favour of the petitioners. 30,000/- and consented for mutation of the landed property of the deceased Abdul Khaliq Lone in favour of the petitioners. It is specifically stated that the mutation was attested on 18.09.2007 by the revenue authority with the consent of respondent No. 5, who relinquished her share of her own freewill in favour of the petitioners. It appears that the controversy has arisen when respondent No. 5 challenged the mutation on 14.03.2009 through the medium of revision petition before the Additional Commissioner, Kashmir, wherein she has stated that the mutation has been mutated in the name of the petitioners only, leaving the respondent No. 5 though the parties being the legal heirs of the deceased estate holder are entitled to inherit father's property as per Muslim Personal Law. It is stated that the respondent No. 5 suppressed the material facts before the Additional Commissioner, Kashmir, Srinagar and the petitioners resisted the revision petition of the respondent No. 5 on the ground that the mutation has been attested in presence of all the legal heirs including the respondent No. 5 and she had signed the mutation order sheet herself. The petitioners further stated that they raised objections before the Additional Commissioner, Kashmir, that the mutation order being a consent order, no appeal or revision would lie against the said mutation order. It is further stated that the Additional Commissioner, Kashmir, instead of dismissing the revision petition filed by respondent No. 5 allowed the same and submitted the same to respondent No. 1 with the recommendation that the impugned mutation order may be set aside and Tehsildar Pampore be directed to attest the fresh mutation under Muslim Personal Law after de novo enquiry on spot in presence of the parties and after affording opportunity of being heard to all the legal heirs. It is stated that the respondent No. 1 summoned the parties for making submissions before him in the reference made by the Additional Commissioner, Kashmir; the petitioners caused their appearance and submitted written arguments before the Financial Commissioner, Revenue-respondent No. 1, in opposition to the recommendations made by the Additional Commissioner, Kashmir. It is stated that the respondent No. 1 summoned the parties for making submissions before him in the reference made by the Additional Commissioner, Kashmir; the petitioners caused their appearance and submitted written arguments before the Financial Commissioner, Revenue-respondent No. 1, in opposition to the recommendations made by the Additional Commissioner, Kashmir. It is stated further that respondent No. 1 without giving thoughtful consideration to the points raised by the petitioners and also without considering the written arguments in terms of impugned judgment dated 22.10.2013 allowed the reference made by the Additional Commissioner, Kashmir, and set aside the mutation and directed the Tehsildar to pass fresh order strictly in accordance with Muslim Personal Laws, after conducting de novo enquiry. 2. Feeling aggrieved, the petitioners have assailed the impugned orders dated 16.06.2011 & 22.10.2013 passed by the respondents 1 & 2 on the grounds taken in the memo of writ petition. 3. Respondent No. 5 has filed the detailed reply and has contested the averments made in the writ petition on the pleas taken therein. 4. I have heard learned counsel for the parties, perused the record and considered the matter. 5. A bare look at the mutation order No. 108 attested on 18.09.2007 by Naib Tehsildar, Khrew, brings it to fore that the estate holder Abdul Khaliq Lone died around four years before leaving behind the petitioners and respondent No. 5, as his legal heirs. Admittedly, Shariat Act 2007 had not been enacted at that time. Succession to the estate of deceased was governed by the provisions of Sri Pratap Jammu & Kashmir Laws (Consolidation) Act, 1977, by virtue whereof rule of succession was Muslim Personal Law as modified by custom. It is well settled that succession to the estate of a Muslim estate holder, upon his death, opens the moment he dies and immediately vests in his legal heirs according to law of succession governing inheritance. Such vesting in no circumstances gets postponed. Viewed thus, the estate of deceased Khaliq Lone immediately vested in successors who survived him, viz, petitioners and respondent No. 5. However, from the mutation order No. 108 dated 18.09.2007, it emerges that three daughters of the deceased-Khaliq Lone namely Mst. Rafiqa, Haseena, Jawahira had been married outside and were not resident daughters. While Mst. Haseena and Mst. Jawahira wanted a share in their late father's estate, private respondent No. 5, Mst. However, from the mutation order No. 108 dated 18.09.2007, it emerges that three daughters of the deceased-Khaliq Lone namely Mst. Rafiqa, Haseena, Jawahira had been married outside and were not resident daughters. While Mst. Haseena and Mst. Jawahira wanted a share in their late father's estate, private respondent No. 5, Mst. Rafiqa Akhter, surrendered her share. The mutation order bears her thumb impression. It appears that all the legal heirs of the deceased-Khaliq Lone were present when the mutation order No. 108 dated 18.09.2007 was attested by Naib Tehsildar at Camp Khrew. There is an undertaking of private respondent No. 5, Mst. Rafiqa on record in terms whereof she has relinquished her claim to a share in her deceased father's estate in lieu of Rs. 30,000/-. Apart from having relinquished her claim for consideration in terms of the aforesaid undertaking, she is estopped from asserting her claim to a share of her deceased father as the mutation order dated 18.09.2007 attested in her presence and on the basis of her statement, operates as estoppel. It is, therefore, futile to contend that mutation order No. 108 dated 18.09.2007 has been attested at the back of private respondent No. 5. It is equally futile to contend that Naib Tehsildar lacked jurisdiction to attest the aforesaid mutation order. The mutation was in respect of inheritance of an estate holder and there being no dispute in respect of the legal heirs entitled to succeed to his estate, Naib Tehsildar, was not divested of jurisdiction to attest the mutation order in question which did not fall within the scope of Para 29 to Standing Order 23-A which curtails the power of Naib Tehsildar to attest the disputed mutations. 6. Viewed in the above perspective, the impugned order dated 16.06.2011 passed by the Additional Commissioner, Kashmir, recommending de novo enquiry and impugned order dated 22.10.2013 passed by the Financial Commissioner, Revenue, Jammu & Kashmir, accepting the recommendation of the Additional Commissioner, Kashmir, Srinagar, and setting aside the mutation order No. 108 dated 18.09.2007 attested by Naib Tehsildar, Pampore, cannot be supported. 7. In the aforementioned backdrop, this writ petition merits acceptance. Accordingly, writ petition is allowed. Impugned order dated 16.06.2011 passed by respondent No. 2 read with judgment and order dated 22.10.2013 passed by respondent No. 1 are quashed. As a corollary, mutation order No. 108 dated 18.09.2007 is restored. Disposed of alongwith CMP.