BALDEV SINGH Vs. FINANCIAL COMMISSIONER

JUDGEMENT

(1.) The dispute herein relates to the mutation of the property owned by one Kartar Singh who died in November, 1982. It is not in dispute that Khem Kaur was the wife of Bahadur Singh and the had two sons - Baldev Singh and Jit Singh - petitioners. It is alleged that after the death of Bahadur Singh, Khem Kaur contracted a Kareva marriage with Kartar Singh and after his death in November, 1982, she alongwith her two sons Baldev Singh and Jit Singh wanted the land in dispute to be mutated in their favour. This mutation was disputed as respondents 5 to 11 who are the sons of Fauja Singh and Piara Singh the real brothers of aforesaid Kartar Singh claimed the property in dispute on the basis of a Will allegedly executed by Kartar Singh in their favour. In the alternative, respondents 5 to 11 claimed the property being the nephews of Kartar Singh deceased, as according to them, Kartar Singh had not left behind any class-I heirs. As the mutation was a disputed one, it went before the Assistant Collector Ist Grade, Thanesar who sanctioned the same in favour of Khem Kaur as per his order dated October 21, 1985. Respondents 5 to 11 filed an appeal before the collector who allowed the same and sanctioned the mutation in favour of the appellants-respondents herein. Khem Kaur filed a revision petition before the Commissioner which was dismissed on May 28, 1986 and a second revision before the Financial Commissioner also met the same fate on April 3, 1989. During the pendency of the proceedings before the Financial Commissioner, Khem Kaur died and the same were continued by her sons who have filed the present writ petition impugning the orders of the revenue authorities sanctioning the mutation in favour of respondents 5 to 11.

(2.) In the meantime, Anup Singh respondent No. 10, one of the sons of Piara Singh, instituted a suit in a civil court claiming to be the owner of the property alongwith the other private respondents on the basis of a Will dated June 5, 1971 alleged to have been executed by Kartar Singh deceased in their favour. The suit was decreed by the trial Court on May 23, 1987. Khem Kaur and her sons filed an appeal before the Additional District Judge, Kurukshetra which was allowed as per judgment and decree dated March 10, 1988 (Annexure R5/1 with the written statement) and it was held by the appellate Court that Khem Kaur was not the widow of Kartar Singh and that the plaintiff (respondent No. 10 herein) alongwith other respondents were not the owners of the property on the basis of the Will set up by them as the same pertained to some other property. It was also observed by the Civil Court that the property of Kartar Singh deceased had to devolve on the basis of natural succession as if he died intestate and that in the presence of Piara Singh who was the father of the plaintiff being a preferential heir, the plaintiff along with other private respondents herein could not succeed to the property. The petitioners filed Regular Second Appeal No. 2223 of 1992 in this Court which has been dismissed on August 26, 1993.

(3.) As already stated above, the petitioners have impugned the orders of the revenue authorities sanctioning the mutation of the property in dispute in favour of private respondents. The civil Court having found that Smt. Khem Kaur was not the widow of Kartar Singh, the petitioners who are her sons and claim through her, have no right to have the property mutated in their name. Piara Singh, father of respondents 8 to 11 is now stated to be dead and if Kartar Singh has not left behind any class-I heir the private respondents who are his nephews would in ordinary course succeed to the property and, therefore, the property has rightly been mutated in their favour. I am informed that some of the private respondents have instituted a suit for possession in regard to the property in dispute and the same is pending in the Civil Court. Petitioners who are defendants in the said suit are stated to have set up a Will in their favour on the basis of which they claim to be the owners of the property in dispute. In these circumstances, I hold that subject to any decree that the Civil Court may pass in the suit which is already pending or in any other suit that may be instituted by either of the parties, the mutation of the property in dispute in the name of the private respondents is valid.