SARAWAN SINGH Vs. GURDAS RAM

JUDGEMENT

(1.) THIS appeal has been filed against an order dated 11.9.1991 passed by the Divisional Commissioner, Kangara vide which he has disposed off two appeals Nos. 82/89 and 104/89. Brief facts of the case are that one Shri Khushia died on 9.12.1986 and the mutation of his inheritance was sanctioned by the Assistant Collector, Ilnd Grade vide mutation No. 684 in favour of Shri Gurdip Chand, Gurdas Ram, sons and Smt. Shakutla Devi, daughter of Shri Khushia on 30.3.1988 on the basis of unregistered Will. The order of the Assistant Collector, Ilnd Grade was challenged by the Petitioners before the Collector Settlement, Kangra who accepted the appeal and set aside the orders of the Assistant Collector Ilnd Grade with the directions that the mutation be attested as per a registered Will dated 16 -7 -1986 executed in favour of the Petitioners. This order dated 16 -7 - 1986 was challenged before the Divisional Commissioner, Kangra in two appeals No. 82/89 and 104/89. The Divisional Commissioner decided the matter vide a single order dated 11.9.1991 holding that the mere fact that mutation was attested on the basis of an unregistered 'Will ' should not have been the reason to set it aside. He held that it was the last Will which had to be taken as the testament of the party. This order has been assailed in revision petition before this Court on the ground that the attesting witness to the unregistered Will could not give the exact date of its execution and that Shri Khushi Ram had died on 9.12.1986 after prolonged illness and therefore, he could not have been expected to have a sound mind on 7 -12 - 1986 just two days before he died.

(2.) THE record of the Courts below have been called for and examined. The arguments advanced by the learned Counsel for the parties have been heard.

(3.) PERUSAL of the record does show that the 'Will ' allegedly executed by Shri Khushia on 7.12.1986 has been contested by the present Petitioners who have claimed their share in inheritance on the basis of the registered Will of 16.7.1986. When an unregistered 'Will ' is contested by persons who claim to benefit from the estate of the deceased, it is desirable that the matter should be referred to the civil Court for proving the unregistered 'Will '. Rather than proceeding on the basis of the contested unregistered 'Will ' the Assistant Collector, Ilnd Grade should have attested the mutation of inheritance on the basis of the registered 'Will ' of 16.7.1986 and advised the parties to pursue the matter regarding implementation of the Will of 7.12.1986 by getting the same probated through the Civil Court. I am therefore in disagreement with the order of the learned Divisional Commissioner dated 11.9.1991 upholding the order of the Assistant Collector, Ilnd Grade attesting Mutation No. 684. The order of the Settlement Officer dated 6.6.1989, is upheld and the revision petition is accepted. Record of the Courts below be returned and the case file of this Court be consigned to the record room after due completion.