IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Civil Writ Petition No.3819 of 2009 DATE OF DECISION : MARCH 08, 2011 SMT. SANTRA DEVI ....... PETITIONER(S) VERSUS JAI LAL & ORS. .... RESPONDENT(S) CORAM : HON'BLE MR. JUSTICE AJAI LAMBA PRESENT:Mr. Rakesh Nehra, Advocate, for the petitioner(s). Mr. OP Goyal, Sr. Advocate, with Ms. Shilpa Sahi, Advocate, for the respondents. AJAI LAMBA, J. (Oral) 1 The issue in this writ petition relates to sanction of mutation in accordance with a registered document i.e. Will dated 12.11.1999 (Annexure P-1), executed by one Chitter Singh. 2 For considering the issue, the contents of the Will would be relevant and the same read as under:- “I am aged about 65 years and I am getting old and infirm day by day. There is no certainty about the life and nobody knows when and where I will die. My first wife was Smt.Chandro who has since died. Smt. Chandro had given birth to two sons namely Durga Parshad and Jai Lal and both of them are in Government services and are living separately from me for the last many years. I performed remarriage with Smt.Santra Devi, who also gave birth to two sons namely Nemi Chand and Dharambir and three Civil Writ Petition No.3819 of 2009 2 daughters namely Kanta, Savitri and Sharmila. Nemi Chand had already died. Dharambir is also in govt. service and he is residing separately from me. All my three daughters are happily married and living in their in law's house. My wife Smt.Santra Devi lives with me and looks after me and keeps me happy in all manner. My agricultural land comprised in Khewat No.56, Khatoni No.59 Rect. No.16 and Killa No. 12 (5- 16), 13 (8-0), 13/1 (7-2), 19/1 (6-3), total Kitte 4, total measuring 27 kanals 1 marla, situated in village Kalka, Tehsil and Distt. Rewari. This is myself purchased/ acquired land and I had not made any Will regarding this land. It is normally seen that whenever a land holder dies without making any Will, then there is always dispute over his property and in this way, entire property is spoiled, which I do not want. My wife Smt.Santra Devi is serving me in all respect in my old age and I am extremely happy with her services and I want to make a Will in favour of my wife Smt.Santra Devi regarding agricultural land measuring 27 kanals 1 marla situated in village Kalka, Tehsil and Distt. Rewari, so that after death my soul may rest in peace and Smt.Santra Devi may get rewards for her services. Therefore, I, in my full consciousness and with free mind and without any pressure and inducement, make this Will that till I am alive, I will remain as owner and in possession of my agricultural land and after my death, my wife Smt.Santra Devi will be the owner in possession of above said agricultural land measuring 27kanals 1 marla and all the rights regarding the land will be enjoyed by her in the same manner as I was enjoying. All my sons namely Durga Parshad, Jai Lal, late Sh. Nemi Chand and his L.Rs. and my daughters Kanta, Savitri, Sharmila and any other person will have no right or share in the property regarding Civil Writ Petition No.3819 of 2009 3 which I have made the Will. This is my first and last Will. Therefore, this Will has been written so it may be used at relevant time. The contents of the Will are read over and understood. Dated 12.11.1999. Scribe Vijay Kumar Deed Writer, Rewari.” 3 Assistant Collector Ist Grade sanctioned the mutation vide order dated 11.1.2005 (Annexure P-2), in accordance with the Will to the extent of land mentioned in the Will. For rest of the land, the mutation has been sanctioned as per inheritance. 4 The respondents went up in appeal. The Collector, vide impugned order dated 25.10.2005 (Annexure P-3) accepted the appeal and set aside the order passed by the Assistant Collector Ist Grade, holding thus:- “After hearing both the sides and after perusing the file, I have reached the conclusion that the Asstt. Collector Ist Grade, has sanctioned mutation No.970 regarding land of village Kalaka measuring 26kanals 1 marla in favour of Smt.Santra and mutation of remaining land has been sanctioned in the name of all other legal heirs. Leaving the legal heirs in the Will, creates doubt. The Revenue Officer is not bound to accept the registered document blindly. Whenever the legal heirs are kept out of the Will and no proper reason for keeping them out is mentioned, in that case, the revenue officer should apply his mind and he is not bound to accept such documents. Therefore, after setting aside the order dated 11.1.2005 passed by Asstt. Collector, Ist Grade, Rewari, mutation No.970, pertaining to the property of deceased Chitter situated in village Kalaka, is sanctioned in favour of all the legal/ natural heirs of Chitter. The record of the lower court be sent back. Copy of the order be sent to Tehsildar, Rewari.” Civil Writ Petition No.3819 of 2009 4 (Emphasis supplied) 5 The petitioner carried an appeal, which was allowed by the Commissioner vide order dated 24.10.2007 (Annexure P- 4). It has been held that the testator has given clear and categoric reasons for not including the other legal representatives, except the petitioner, in the Will. The Collector, however, has held that no proper reasons had been given in the Will for keeping the legal heirs out of the Will. The reasons assigned by the Collector are not substantiated on a perusal of the Will. Giving the said reasons, the Commissioner allowed the appeal of the petitioner. 6 The Financial Commissioner has accepted the revision of the respondents, while holding that the Will is apparently surrounded by doubtful circumstances. It has been held that when there is slightest doubt about the genuineness of any instrument, the Assistant Collector Ist Grade should have left it to the parties concerned to approach the Court having competent jurisdiction to challenge its genuineness. 7 Learned counsel for the petitioner contends that the order passed by the Collector has been upheld by the Financial Commissioner. The Collector accepted the appeal of the respondents only on the ground that the Will does not assign any reason for keeping legal heirs out of the Will. The said finding returned by the Collector is against record, as is made out on a bare perusal of the Will itself. 8 Learned counsel for the respondents has drawn the attention of the Court towards the earlier part of the order Civil Writ Petition No.3819 of 2009 5 passed by the Collector to say that suspicious circumstances were made out. The testator, at the point in time when the Will was executed, was 85 years of age, however, his age has been mentioned as 65 years. Further, the testator was a literate person and yet thumb impression has been affixed. 9 I have considered the contentions of the learned counsel for the parties. 10 The order passed by the Collector is founded only on the ground that the legal heirs have been left out of the Will, without assigning any reason. The said finding is clearly not borne out on a perusal of the Will, which has been extracted in beginning part of the judgment and, therefore, the order passed by the Collector was clearly against record and, in that regard, no fault can be found with the order passed by the Commissioner setting aside the order passed by the Collector. 11 So far as the contention of the learned counsel for the respondents, as noticed above, is concerned, the learned counsel has only drawn the attention of the court towards the arguments addressed by the learned counsel for the respondents before the Collector. The Collector has not recorded a finding that the Will was surrounded by suspicious circumstances, on account of discrepancy in age or signatures/thumb impression. Rather, I find that the Will contains the photograph of the testator and it is a registered document. In summary proceedings, what was required to be seen has been seen and considered by the Assistant Collector Ist Grade and the Commissioner. Chitter Singh died in the year Civil Writ Petition No.3819 of 2009 6 2003. The proceedings were initiated for sanction of mutation in February, 2004. Till date, the respondents have not challenged the Will in a court of law on the civil side. 12 Considering the totality of facts and circumstances of the case, I find the order passed by the Financial Commissioner upholding the order passed by the Collector to be unreasonable and without relevant reasons and, therefore, the impugned order (Annexure P-5) is hereby quashed and the order (Annexure P-4), passed by the Commissioner, Gurgaon Division, is upheld. 13 In view of the above, the petition stands allowed. 14 It is, however, made clear that any observation made hereinabove is not in regard to the genuineness or veracity of the Will and the issue has been considered only in the context of jurisdiction of revenue authorities in regard to sanction of mutation. The respondents, if they choose, may file a civil suit, in accordance with law, which shall be considered independently, on the basis of evidence brought before the civil court. March 08, 2011 ( AJAI LAMBA ) Kang JUDGE 1.To be referred to the Reporters or not? 2.Whether the judgment should be reported in the Digest?