Research › Search › Judgment

Rajasthan High Court · body

2020 DIGILAW 130 (RAJ)

Ramswaroop v. Amar Singh

2020-01-15

ARUN BHANSALI

body2020
ORDER : Arun Bhansali, J. 1. This writ petition has been filed by the petitioner aggrieved against the order dated 19/11/2019 passed by the Board of Revenue, whereby, the second appeal filed by the respondent nos. 1 to 4 has been accepted and the order dated 19/6/2017 passed by the Divisional Commissioner, Bikaner has been set aside. 2. The land in question was recorded in the name of Ramji Lal, father of petitioner and respondent nos. 1 to 4 & 6. The said Ramji Lal died on 19/4/2015. An application dated 13/5/2015 was filed by the respondent - Amar Singh with Tehsildar, Srivijaynagar seeking mutation in favour of respondent nos. 1 to 4 based on a Will dated 18/4/2015. The Tehsildar issued notice to other legal representative of deceased Ramji Lal. The petitioner filed his response on 2/11/2015 contesting the validity of the Will alleging the same to be concocted and fraudulent. 3. After hearing the parties, the Tehsildar, Srivijaynagar by its order dated 16/11/2015 came to the conclusion that he cannot decide the validity of the Will, there is no injunction against him and that qua the validity of the Will the petitioner herein is free to seek relief before the competent court and consequently accepted the application of the respondent no. 1 for change in mutation entries. 4. Feeling aggrieved, the petitioner approached the Divisional Commissioner by filing first appeal. The Divisional Commissioner by its order dated 19/6/2017 (Annex. 5) came to the conclusion that the Will was suspicious and relying on another document dated 27/3/2015 said to have been executed by the deceased Ramji Lal, also came to the conclusion that the Tehsildar was not justified in ordering for change in mutation entries and directed that the land be mutated in the names of all the legal representatives of deceased Ramji Lal. 5. Feeling aggrieved, the respondent nos. 1 to 4 filed appeal before the Board of Revenue. The Board of Revenue by its judgment dated 19/11/2019 (Annex. 8) came to the conclusion that for the reasons indicated by the Divisional Commissioner it cannot be said that the Will was suspicious and the basis on which the appeal has been allowed by the Divisional Commissioner are not legal. 1 to 4 filed appeal before the Board of Revenue. The Board of Revenue by its judgment dated 19/11/2019 (Annex. 8) came to the conclusion that for the reasons indicated by the Divisional Commissioner it cannot be said that the Will was suspicious and the basis on which the appeal has been allowed by the Divisional Commissioner are not legal. The Board of Revenue also came to the conclusion that the order passed for mutating the land in the names of all the legal representatives was beyond jurisdiction and consequently allowed the appeal and set aside the order dated 19/6/2017 passed by the Divisional Commissioner and restored the order dated 16/11/2015 passed by the Tehsildar, Srivijaynagar. 6. It is submitted by learned counsel for the petitioner that the Board of Revenue was not justified in setting aside the well reasoned order of the Divisional Commissioner, who based on the material available on record had categorically came to the conclusion that the Tehsildar was not justified in ordering for mutation in the names of respondent nos. 1 to 4 based on the Will and should have waited for the competent court to decide the validity of the Will and, therefore, the order impugned deserves to be quashed and set aside. 7. Further submissions were made that the Tehsildar did not comply with the requirements of provision of Rule 131 of the Rajasthan Land Revenue (Land Record) Rules, 1957 ('the Rules') inasmuch as he did not hold any inquiry into the validity of the Will, which was seriously contested by the petitioner based on the material available on record and, therefore, on that count alone the order passed by the Board of Revenue deserves to be set aside. 8. Reliance was placed on Prem Bai vs. Kela Ram: AIR 2007 (Raj.) 238 . 9. Further reliance was placed on a document termed as 'Affidavit' filed as Annex. 6. 10. Learned counsel for the respondent caveator vehemently opposed the submissions. It was submitted that the Divisional Commissioner acted beyond its authority in adjudicating the validity of the Will in holding the same as suspicious. Various submissions have been made seeking to justify the execution of the Will by deceased Ramji Lal in favour of his four sons -respondent nos. 1 to 4 in exclusion of the petitioner. It was submitted that the Divisional Commissioner acted beyond its authority in adjudicating the validity of the Will in holding the same as suspicious. Various submissions have been made seeking to justify the execution of the Will by deceased Ramji Lal in favour of his four sons -respondent nos. 1 to 4 in exclusion of the petitioner. It was indicated that that during life time of Ramji Lal the petitioner had initiated litigation against him and had obtained orders. With regard to Affidavit (Annex. 6) submissions were made that the same on its face is a forged document and, therefore, no reliance can be placed on the same. 11. Submissions were also made that based on the inquiry once the Tehsildar prima facie came to the conclusion regarding claim of respondent nos. 1 to 4 based on the Will & the order was passed and if the petitioner wants to contest the validity of the Will, option open for him is to approach the competent civil court and in fact litigation initiated by him are pending and, therefore, the challenge laid has no basis. 12. Submissions were made that provisions of Rule 131 of the Rules have been complied by issuance of notice, taking response from the petitioner and holding a summary inquiry and, therefore, the plea raised in this regard also has no substance. 13. I have considered the submissions made by learned counsel for the parties and have perused the material available on record. 14. The facts are not in dispute that deceased Ramji Lal had five sons and a daughter. On this death, based on Will an application was filed for mutation of the land in question in favour of four sons. The Tehsildar issued notice to the petitioner, who appeared and contested the application based on which the Tehsildar after holding requisite inquiry passed the order dated 16/11/2015 accepting the application filed by respondent nos. 1 to 4. The order passed was contested by the petitioner only. The Divisional Commissioner apparently on account of the fact that the petitioner was excluded in the Will and that there was no reference for excluding the daughter also, based on reasons indicated in the order found the Will as suspicious and, therefore, ordered for mutation in the names of all the legal representatives. 15. As noticed, the Board of Revenue reversed the order passed by the Divisional Commissioner. 15. As noticed, the Board of Revenue reversed the order passed by the Divisional Commissioner. The foundational reason for the Divisional Commissioner for finding the Will as suspicious appears to be exclusion of petitioner and daughter, however, the Divisional Commissioner ignored the fundamental principle that normally a Will is executed either for arranging the affairs of the property left behind by the executant and/or for excluding a natural heir. Therefore, the mere fact of exclusion of one of the natural heirs cannot be made basis for holding the Will as suspicious. 16. It would be relevant to notice that during the life time of the deceased, the petitioner had already initiated litigations against his father and that against the order passed by the Tehsildar, the daughter has not filed any appeal before the Divisional Commissioner. 17. The reliance placed on the document Annex. 6 also apparently is misplaced as the same by itself does not create any right in favour of the petitioner. 18. In view thereof, apparently it cannot be said that the Will relied on by the respondent nos. 1 to 4 is of a nature which the Tehsildar during the course of summary inquiry could have ignored and mutate the land in the names of all the legal representatives. 19. The plea raised that the provisions of Rule 131 of the Rules have not been complied with also apparently has no substance inasmuch as notice was issued to the petitioner, who appeared and contested the application, whereafter, the order has been passed. The very nature of summary inquiry requires providing an opportunity of hearing and taking a view based on the material available on record, which exercise has been duly undertaken by the Tehsildar. 20. In view thereof, it cannot be said that the Board of Revenue committed any mistake in accepting the appeal against the order passed by the Divisional Commissioner reversing the order of Tehsildar. 21. In view of the above discussion, no case for interference in the judgment impugned is made out. The writ petition has no substance and the same is, therefore, dismissed. 22. It is made clear that all the observations made hereinbefore have only been made for examining the validity of the order passed by the Board of Revenue and the same shall not be taken as conclusive qua the validity of the Will relied on by the respondent nos. 22. It is made clear that all the observations made hereinbefore have only been made for examining the validity of the order passed by the Board of Revenue and the same shall not be taken as conclusive qua the validity of the Will relied on by the respondent nos. 1 to 4 and the competent courts before whom the validity of the Will comes up for adjudication would be free to decide the same based on the material available before them, uninfluenced by any of the observations made hereinbefore.