KIRAN DIWANIA Vs. FINANCIAL COMMISSIONER, DELHI

JUDGEMENT

(1.) This Letters Patent Appeal is directed against the judgment dated 08.11.2011 delivered by a learned single Judge of this court in WP (C) 7837/2008 (Kiran Diwania v. Financial Commissioner and Others). The matter pertains to the entry in the record of rights in respect of 50 bighas, 16 biswas of land in village Galibpur, Delhi. The appellant claims that her name alone should have been recorded in the record of rights under the Delhi Land Revenue Act, 1954. She claims that her name should have been so recorded on the basis of a Will dated 19.06.1967 which had been probated by virtue of an order of the District Judge, Delhi on 26.03.1993. The said Will was executed by Smt. Manbhari, who is the maternal grand mother of the appellant. Smt. Manbhari was married to Shri Ami Lal. Shri Ami Lal passed away in 1930 prior to the enactment of the Delhi Land Reforms Act, 1954. His widow (Smt. Manbhari) was regarded as a Bhumidhar under the Delhi Land Reforms Act. Smt. Manbhari died on 19.05.1968 leaving behind her daughter (Smt. Sunder) as her sole surviving heir. The appellant (Kiran Diwania) is the daughter of Smt. Sunder. The appellant also has a sister by the name of Ratan Bala. Shri Suraj Bhan (Respondent No. 5) claimed that his name ought to be recorded in the record of rights under the Delhi Land Revenue Act inasmuch as he claimed under an alleged Will dated 12.09.1979 allegedly executed by Smt. Sunder, who, according to him, had inherited the rights as a Bhumidhar from her mother (Smt. Manbhari). Thus, while the appellant Kiran Diwania claims her right under the Will dated 19.06.1967 executed by Smt. Manbhari, Suraj Bhan (Respondent No. 5) claims his right under the alleged Will dated 12.09.1979 allegedly executed by Smt. Sunder in his favour. It would be pertinent to point out that the present appeal has arisen out of the revenue proceedings under the Delhi Land Revenue Act. It is not in dispute that upon the death of Ami Lal, Smt. Manbhari was the Bhumidhar in respect of the land in question. Smt. Manbhari died on 19.05.1968. Prior to her death, she had executed a Will on 19.06.1967 which was probated by a District Judge in Delhi on 26.03.1993. It may be relevant to point out that at the point of time when the Will was executed by Smt. Manbhari in favour of her grand-daughter (Kiran Diwania), the appellant herein, the latter was a minor and her guardian was her mother Smt. Sunder. In 1969-70, consolidation proceedings had been undertaken in, inter alia, the said village Galibpur. As per the Khatauni Pamaish of 1969-70, the name of the Bhumidhar, in respect of the said holding, was shown as "Smt. Sunder dukhtar Manbhari, Widhwa Ami Lal" (Smt. Sunder, daughter of Manbhari, widow of Ami Lal).

(2.) It is alleged by Shri Suraj Bhan that Smt. Sunder, prior to her death on 27.06.1980, had executed a Will on 12.09.1979, by virtue of which, he inherited all the rights, title and interest of Smt. Sunder in the land in question. At this juncture, it may be pointed out that, while the Will executed by Smt. Manbhari has been proved by virtue of the probate order dated 26.03.1993, the alleged Will of Smt. Sunder has not been probated nor is it claimed to be a registered Will. In fact, Suraj Bhan (Respondent No. 5) had moved an application being MPC No. 47/2001 in Probate Case No. 106/1991 under Section 263 of the Indian Succession Act, 1925 for revocation of the letter of administration granted in favour of Smt. Kiran Diwania in respect of the estate of Smt. Manbhari alongwith the Will dated 19.06.1967. That application was rejected by an order dated 15.03.2003 passed by the learned Additional District Judge, Delhi. While doing so, the learned Additional District Judge, noted as under:-

(3.) After the death of Smt. Sunder on 27.06.1980, Shri Suraj Bhan (Respondent No. 5) applied for mutation on the basis of the alleged Will dated 12.09.1979 purportedly executed by Smt. Sunder. At this juncture, it would be relevant to note that in the Khatauni Pamaish of 1977-78, the entry with regard to the Bhumidhar was to the following effect:-