SMT. RAMA DUBEY (DEAD) BY LRS.

DEPUTY DIRECTOR OF CONSOLIDATION AND ORS.

SEPTEMBER 13, 1994

[K. RAMASWAMY AND N. VENKATACHALA, JJ.]

Limitation Act, 1963 : S{!ction 5-Mutation entries in respect of lands gifted and bequeathed-Legal heirs opposing after years by filing application for condonation of delay-Authorities rejecting the application-High Court C interfering-Held interference not justified.

Two brothers G and H were the recorded tenure holders of certain lands. In 1960 they executed a registered gift deed in favour of their sister's daughter viz. the appellant in respect of some movable and immovable properties. G died in 1969. Also in 1977 before his death H executed a Will D in respect of two plots of lands.

During the lifetime of H, appellant initiated proceedings before the Consolidation Officer to mutate her name in the record of rights as successor in interest on the basis of the gift deed executed by G and H.

E Notice was served on H, but he did not appear. Therefore order was passed ex-parte mutating her name in respect of 11 plots of land gifted to the appellant under the gift deed.

After the death of H, the appellant initiated proceedings, for mutating her name in respect of the two plots of land bequeathed to her.

Respondent filed writ petitions challenging the orders of the Consolidation Officer rejecting the application for condonation of delay filed by him. The High Court held that the respondent being the legal heir of G and H, refusal to condone the delay was not valid in law, set aside the orders and remitted the matter to the Consolidation Officer. Hence these appeals.

Allowing the appeals, this Court

HELD : 1. The finding recorded by e authorities was that although notice was served on H personally, he did not question the claim made by the appellant in the consolidation proceedings. The respondent, who is H seeking to come as a legal representative of H cannot have a higher right

RAMA DUBEY v. DY. DIRECTOR OF CONSOLIDATION 539

than what the owner himself had. Since the owner who had the notice of A the proceedings, remained ex-parte, the respondent cannot stand on a higher footing than him and when the proceedings before the Consolidation Officer had been allowed to become final, it was not open to the respondent to file after years an appliction under Section 5 of the Limita tion Act to condone the dealy and to ask for the benefit of hearing. The B Consolidation Officer rightly refused to condone the delay and therefore, the High Court was not right in interfering with the said well i:easoned order. (540-G, H 541-A]

2. With regard to the Will executed by H in respect of two plots of land, although proceedings we.re initiated after his demise in collateral C proceedings initiated by the respondent himself, it was found that the respondents were inimically disposed to H and that the appellant was looking after her uncles G and H. In that view of the situation, the will is well-founded. When once the Will is accepted by the authorities, there is nothing left for the respondents to claim their rights as alleged legal representatives of H. Under these circumstances, the High Court was not D justified in interfering with the order made in respect of the properties covered under the will. (541-B, CJ

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2986 of 1986.

From the Judgment and Order dated 4.12.85 of the Allahabad High Court in C.M.W.P. No. ll059of1980.

S.N. Singh, H.L. Srivastava, B.M. Sluuma and T.N. Singh for the

Appellant.

R.D. Upadhyay for the Respondents.

The following Order of the Court was delivered :

Application for substitution is allowed.

These appeals arise from the Judgment of the High Court of Allahabad in C.M.W.P. No. 11059/80 datea Deceinber 4, 1985 and C.M.W.P.

No. 9127/80 of even date.

The admitted facts are that Gajadhar and Harjeet are. the recorded H

SUPREME COURT REPORTS (1994] SUPP. 3 S.C.R.

A tenure holders of the lands in Plots Nos. 1072 (0.33 acres), 1082 (0.40 acres), 1083 (0.10 acres), 1202 (0.30 acres), 1203 (0.30 acres), 1204 (0.17 acres), 1210 (0.22 acres), 1069/3 (0.10 acres), 1106 (0.73 acres), 1199 (0.16 acres) and 1329 (0.55 acres) situated in Village Mahen Babu Tehsil Salempur, Distt. Deoria (U.P.). On February 20, 1960 they had executed a B registered gift deed in favour of their sister's daughter Smt. Rama the appellant not only in respect of moveable properties but also in respect of immoveable properties. Gajadhar died in 1969. The gift ded comprised of 11 plots of land. Harjeet, during his life time, had executed a Will on February 1, 1977 in respect of two plots of land. He died on February 22,

1977. During the life time of Harjeet, in 1971, the appellant had filed C proceedings before the Consolidation Officer to mutate her name in the record of rights as successor in interest on the basis of the gift deed executed by Gajadhar and Harjeet. Though notice was taken to Harjeet and served on him in person, he did not appear. Therefore, the order was passed ex parte mutating her name in respect of 11 plots gifted to her under D the gift deed dated February 29, 1960. She also filed the proceedings after the demise of Harjeet to mutate her name in respect of 2 plots which were bequathed to her. Ultimately, the respondent filed the Writ Petitions challenging the orders seeking condonation of delay which was rejected by the-Tribunals below. The learned single Judge in the inipugned order held that the respondent is a legal heir of the deceased Gajadhar and Harjeet E and the refusal to condone the delay is not valid in law and accordingly,

set ¥ide the orders and remitted the matter to the Consolidation Officer to dispose of. the matter on merits after recording the evidence and giving opportunity to the parties. Thus, these appeals by special leave.

F It is not in dispute that during the life time of Harjeet, Rama - the appellant had initiated proceedings in 1971 to mutate her name in the record of rights in respect of 11 plots bequeathed to her jointly by him and by his brother Gajadhar under gift deed dated February 29, 1960. The finding recorded by the authorities was that although notice was served on him personally, he did not question the claim made by Rama in the G consolidation proceedings. The respon.dent, who is seeking to come as a legal representative of Harjeet, cannot have a higher right of what the owner himself had. The owner who had the notice of the proceedings since remained ex-parte, the respondent cannot stand on a higher footing than him and when the proceedings before the consolidation officer had been H allowed to become final, it was not open to the respondent to file after

RAMADUBEYv. DY.DIRECTOROFCONSOLIDATION 541

years an application under Section 5 of the Limitation Act to condone the A delay and to ask for the benefit of hearing. The Consolidation Officer rightly refused to condone the delay and therefore, the High Court was not right in interfering with the said well reasoned order. Equally, with regard to the Will executed by Harjeet in respect of two plots of land, although proceedings were initiated after the demise of Harjeet in a collateral B proceedings initiated by the respondent himself, it was found that the respondents are inimically disposed to Haxjeet and that Rama was looking after her uncles Gajadhar and Hareet. In that view of the situation, the Will is well-founded. When once the Will is accepted by the authorities, there is nothing left for the respondents to claim their rights as alleged legal representative of Harjeet. Under these circumstances, the High Court C was not also justified in interfering with the order made in respect of the properties covered under the Will.

The appeals are accordingly allowed. The Writ Petitions stand dismissed. No costs.

G.N.

Appeals allowed.