ISH PAL Vs. STATE OF HARYANA

JUDGEMENT

(1.) IN short, one Budhu S/o. Baljit Singh, resident of village Arainpura, Tehsil Gharaunda, District Karnal was owner in possession of land falling in village Arainpura and Gianpura, Tehsil Gharaunda, District Karnal. Budhu had two brothers, namely, Telu Ram and Bhagwana. Budhu died on 4.1.2002 as a bachelor. After his death, mutation of inheritance No. 2099 of Village Arainpura and mutation No. 1863 of Village Gianpura were entered in favour of his brothers Telu Ram and Bhagwana. Vineet, grand -son of Bhagwana, through his mother contested the mutation on the basis of unregistered Will dated 24.7.1999 purported to have been executed by Budhu in his favour. Accordingly, Assistant Collector IInd Grade referred the mutation as contested to Assistant Collector Ist Grade/DRO, Karnal, who sanctioned the contested mutation No. 2099 in favour of Vineet/respondent No. 5. The petitioner, who happened to be the son of Telu Ram, challenged the order of Assistant Collector, Ist Grade by way of appeal, which was allowed by the Collector, Karnal on 4.6.2003. Respondent No. 5 challenged that order before the Commissioner who maintained the order of the Assistant Collector, Ist Grade vide his order dated 22.12.2006 and his order was further maintained by the Financial Commissioner vide his order dated 28.1.2008. Learned counsel for the petitioner has submitted that respondent No. 1 had erred in relying upon the unregistered Will which was allegedly executed on 24.7.1999 after the suit for declaration, about the ownership based upon family settlement and adoption deed i.e. 'Godnama' dated 5.6.1998, filed by respondent No. 5 against Budhu was dismissed on 23.1.1999. It is also submitted that once Godnama was available, there was no necessity to execute the Will and that the Will was scribed at Karnal though scribe was available at Gharaunda as well. As a matter of fact, he had taken the objections, highlighted by the Collector, while deciding the appeal in his favour on 6.8.2013 and has prayed for restoring the order of the collector and setting aside all other orders passed by the Assistant Collector Ist Grade, Commissioner and Financial Commissioner. It is also submitted that once suit filed by the petitioner for declaration of his ownership rights based on family settlement and Godnama has been dismissed, there was hardly any occasion for Budhu to execute the unregistered Will in favour of respondent No. 5 and since the Will is unregistered, respondent No. 5 should have got a declaration about the validity of the Will from the Civil Court and until then the mutation proceedings should have been kept in abeyance.

(2.) ON the other hand, learned counsel for the respondents has submitted that Budhu (since deceased) wanted to give his property to his grand -son/respondent No. 5, therefore, he had first executed a family settlement and adoption deed i.e. Godnama on 5.6.1998. Respondent No. 5 filed civil suit No. 233/98 for declaration of ownership on the basis of family settlement and relied upon the adoption deed in which Budhu had appeared and filed his written statement admitting the facts stated in the plaint. Not only that, a compromise Exhibit C -1, was also placed on record but the Civil Court was of the view that the suit property cannot be transferred in the name of respondent No. 5 at the instance of Budhu without payment of Stamp fee. The said suit was dismissed on 23.1.1999, thereafter Budhu executed the Will on 24.1.1999 as he wanted to give his property to his grand -son/respondent No. 5. The attesting witnesses of the Will namely, Rajesh Singh and Isham Singh have recorded their statements before the Assistant Collector Ist Grade, where the mutation was contested. It is also submitted that the circumstance of Will having been scribed at Karnal despite the availability of scribe at Gharaunda is not a suspicious circumstance and lastly it is argued that if the petitioner is doubting the genuineness of the Will, he should have filed the civil suit himself for declaring it to be illegal and invalid but no civil suit has been filed by the petitioner so far whereas the mutation proceedings are of summary nature, for fiscal purpose and does not confer any title.

(3.) ACCORDING to Section 34 of the Punjab Land Revenue Act, 1887 [for short 'the Act'], any person, who acquires, any right in an estate as a land -owner, assignee of land -revenue or tenant having a right of occupancy by way of inheritance, purchase, mortgage, or otherwise has to inform the acquisition of his right to the patwari of the estate, who would enter the acquisition of such right in the register of mutation and the revenue officer would inquire from time to time about the correctness of register of mutations and about all such acquisitions of such rights and make such order as he thinks fit with respect to the entry in the annual record of the right required. In case, there is no contest to the acquisition of right by a party who has reported the acquisition of that right to the Halqa Patwari, the mutation shall be sanctioned by the Assistant Collector IInd Grade but in case the acquisition of right is challenged, the Assistant Collector IInd Grade has to refer the mutation proceedings to the Assistant Collector Ist Grade, in terms of Section 36 of the Act who would decide about the right of the parties for the purpose of entering mutation in the revenue record.