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2017 DIGILAW 735 (RAJ)

Bhanwar Lal v. Board of Revenue, Raj. Ajmer

2017-03-09

ARUN BHANSALI

body2017
JUDGMENT : ARUN BHANSALI, J. This writ petition has been filed by the petitioner aggrieved against the judgment dated 11.11.1997 passed by the Board of Revenue, Rajasthan, Ajmer, whereby, the second appeal filed by the respondent No. 2 — Smt. Champa Devi has been allowed and the order dtd. 22.11.1995 passed by the Addl. Divisional Commissioner, Bikaner has been set aside. 2. The petitioner is the grandson of Balu Ram and respondent No. 2 — Smt. Champa Devi and respondent No. 3 — Smt. Bhikhi Devi are daughters of Shri Balu Ram. The present dispute pertains to the legacy of said Balu Ram. It is submitted that Balu Ram executed a registered Will dated 20/5/1987, whereby, the property held by him was bequeathed to Smt. Hulasi Devi, his wife, and two daughters Smt. Champa Devi and Bhikhi Devi. 3. Whereafter, another Will dated 29/6/1989 was executed bequeathing the property to his wife and two daughters. It is claimed that another Will dated 18/2/1991 was executed by Balu Ram and this time he bequeathed the property in favour petitioner — Bhanwar Lal, his grandson and four days after executing the Will dated 18/2/1991, on 22/2/1991 Balu Ram died. Whereafter, Smt. Bhikhi Devi filed an application for mutation of the agricultural land in favour of legal representatives of deceased Balu Ram; Bhanwar Lal also filed an application based on the Will in his favour and also produced certain agreements executed by the deceased Balu Ram and Smt. Hulasi Devi w/o Balu Ram indicating Bhanwar Lal as their successor. Notices of the application were issued and after all the parties made their representation, relying on several documents, Wills and so called agreements, the Tehsildar by his order dated 3/4/1993 came to the conclusion that as the Will dated 20/5/1987 was registered, the same was valid and ordered that the mutation proceedings be carried out based on the said Will. 4. Feeling aggrieved, the petitioner filed appeal before the Addl. Divisional Commissioner, Bikaner. The Addl. 4. Feeling aggrieved, the petitioner filed appeal before the Addl. Divisional Commissioner, Bikaner. The Addl. Divisional Commissioner, Bikaner by his order dated 22/11/1995 came to the conclusion that the property was ancestral, several Wills were placed on record and in a fiscal proceedings like mutation as to which Will was valid could not be decided and the said aspect can only be decided based on probate and, therefore, accepting the appeal filed by the petitioner Bhanwar Lal, the order dated 3/4/1993 passed by the Tehsildar was set aside and the matter was remanded to Tehsildar, Sujangarh to record the land in favour of all the legal representatives of deceased Balu Ram. 5. Feeling aggrieved, Smt. Champa Devi daughter of Balu Ram filed second appeal before the Board of Revenue. The Board of Revenue by the impugned order dated 11/11/1997 came to the conclusion that it is not necessary to obtain a probate in Rajasthan, no evidence was available on record to indicate that the property was ancestral, the documents relied on by the Addl. Divisional Commissioner could not be relied on for coming to the conclusion that the property was ancestral, it was nobody's case before the Tehsildar that property was ancestral and as the Will dated 20/5/1987 was a registered Will and was found as valid by the Tehsildar, there was no perversity in the said order so as to require interference by the Addl. Divisional Commissioner and consequently the second appeal was allowed and order passed by the Addl. Divisional Commissioner was set aside and the order passed by the Tehsildar was restored. 6. It is submitted by learned counsel for the petitioner that the issue which arises in the present case is as to whether the ancestral property could be bequeathed by way of Will by any person and the beneficiary under the Will would acquire any right from such a document and whether in a mutation proceedings, the Tehsildar can decide the competing claims of the parties based on the Will. It was fairly submitted by the learned counsel for the petitioner that the petitioner had applied for grant of probate qua the Will dated 18/2/1991, however, has withdrawn the said proceedings. 7. Learned counsel appearing for the respondents supported the orders passed by the Tehsildar and the Board of Revenue. It was fairly submitted by the learned counsel for the petitioner that the petitioner had applied for grant of probate qua the Will dated 18/2/1991, however, has withdrawn the said proceedings. 7. Learned counsel appearing for the respondents supported the orders passed by the Tehsildar and the Board of Revenue. It was submitted that it was no where the case of the petitioner that the property was ancestral inasmuch as the petitioner himself was relying on a forged/concocted Will dated 18/2/1991 and the so called agreements (bdjkj) allegedly executed by Balu Ram and Smt. Hulasi Devi indicating devolution of property on the petitioner and, therefore, in those circumstances now it is not open for the petitioner to claim that the property was ancestral. Further submissions were made that the Tehsildar even while in a summary proceedings like mutation proceedings, based on the nature of documents, can decide the best entitled person and, thereafter, it is left to the parties to establish their claims before the competent courts. It is submitted that despite the fact that the matter was decided by the Board of Revenue way back in the year 1997, the petitioner has not initiated any proceedings and on the other hand has even withdrawn the probate proceedings initiated by him qua the Will dated 18/2/1991. It was prayed that the writ petition be dismissed. 8. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. The Tehsildar after taking note of the competing claims of all the parties came to the conclusion that as the Will dated 20/5/1987 was a registered Will, the same was valid and ordered for mutation based on the said Will. In the appeal, the Addl. Divisional Commissioner, oblivious of the fact that it was not the case of any of the parties before the Tehsildar that the property was ancestral, rather Bhanwar Lal himself was relying on the Will executed by Balu Ram in his favour, made out a case of land in question being ancestral and went on to hold that the Tehsildar could not have decided the competing Wills and ordered for recording the name of all the parties i.e. legal representatives of Balu Ram in the revenue record. The Board of Revenue on noticing the said aspect about lack of any plea about property being ancestral, set aside the directions issued by the Addl. Divisional Commissioner and came to the conclusion that the order passed by the Tehsildar did not call for any interference. 9. From a perusal of the record, it is apparent that it was the case of none of the parties that the property in question was ancestral as, admittedly, the property belonged to Shivnath, father of Balu Ram, and Balu Ram was the only successor of Shivnath and, therefore, in his hands it cannot be said that the property was ancestral. Irrespective of the said aspect, once the petitioner himself has relied on the Will dated 18/2/1991, allegedly executed by Balu Ram, the petitioner himself could not have turned around and claim that Balu Ram had no right to execute the Will of the property in question, rather the petitioner was estopped, having relied on the Will, allegedly executed by Balu Ram, to claim the property as ancestral. 10. So far as the exercise of jurisdiction by the Tehsildar in the present case is concerned, the mutation proceedings, though summary in nature, the Tehsildar while undertaking the inquiry regarding successors/legal representatives of Balu Ram can, based on the material available before him, always decide the best entitled person and in case there is lack of sufficient material, he can order for mutation in the names of all the competing parties and leave them to get the issue settled by the courts of competent jurisdiction. 11. In the present case, once the Tehsildar, based on the material available before him came to a definite conclusion in terms of the registered Will dated 20/5/1987 and recorded the beneficiaries of the registered Will as tenants in the revenue record after the death of Balu Ram, it cannot be said that there was lack of jurisdiction in holding as such. As already noticed hereinbefore, once the Board of Revenue held in favour of the beneficiaries of the Will dated 20/5/1987, it was for the petitioner to initiate proceedings for establishing his right qua the lands in question, which, as submitted by learned counsel for the petitioner, he has so far not initiated and the proceedings seeking probate of the Will dated 18/2/1991 has already been withdrawn by him. 12. 12. In view of the above, the order passed by the Board of Revenue cannot be said to be perverse so as to require any interference by this Court while exercising jurisdiction under Article 226/227 of the Constitution of India. 13. In view of the discussion, there is no substance in the writ petition and the same is, therefore, dismissed. Petition dismissed.