Ram Chander Singh . Vs. Commissioner Faizabad Division Faizabad & 5 Ors.
Allahabad High Court (Single Judge)
MISC. BENCH, 8882 of 2017, Judgment Date: Jul 27, 2017
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
A.F.R.
RESERVED JUDGMENT
RESERVED ON: 28.4.2017
DELIVERED ON:27.7.2017
Court No. - 4
Case :- MISC. SINGLE No. - 8882 of 2017
Petitioner :- Ram Chander Singh .
Respondent :- Commissioner Faizabad Division Faizabad & 5 Ors.
Counsel for Petitioner :- Ajai Vikram Singh,Ishwar Dutt Shukla,Santosh Kumar Mehrotra
Counsel for Respondent :- C.S.C,A S Chaudhary,P V Chaudhary,Vinod Kumar Tiwari
Hon'ble Rajan Roy,J.
This is a writ petition under Article 226 of the Constitution of India challenging the orders passed by the Revenue Authorities in Mutation Proceedings under Section 34 of the Land Revenue Act 1901 (hereinafter referred as ''Act 1901') and appellate and revisional proceedings arising therefrom.
The land in question was recorded in the name of Smt. Tapeshwari Kunwari, the recorded tenure holder. On her death proceedings for recording the name of heirs in P.A.-11 were initiated, but objections were filed whereupon the proceedings took place under section 34 of the Act 1901. As many as five objections were filed. The father of the petitioner herein claimed mutation on the basis of an unregistered Will dated 28.6.1996, whereas one Ram Harakh Singh claimed the same on the basis of another unregistered Will dated 27.6.1996. After the death of Ram Harakh Singh as per the Will the land has been recorded in the name of the opposite party no.4, Educational Institution. Smt. Tapeshwari Kunwari died on 29.6.1996. All the three Courts below have Ruled against the petitioner.
The contention of Sri I.D. Shukla, learned counsel for the petitioner in nutshell is that the Courts below were persuaded to rule in favour of Ram Harakh Singh and opposite party No.4 only on account of a Probate having been submitted by him in respect of his Will, whereas the petitioner or his father were not even made parties therein, contrary to Section 283 of the Indian Succession Act and by concealing the pendency of the dispute before the Mutation Court, therefore, the said Probate did not have binding effect upon the petitioner and his predecessor in interest, but this aspect was ignored by the Revenue Courts. It was also contended that under section 34 and 35 of the Act 1901 in the event of a dispute the basis for mutation has to be the actual physical possession as is mentioned therein, but this aspect has also been ignored as admittedly neither the respondent nor Ram Harakh Singh was in possession at the relevant time. The Mutation Court committed a gross error in embarking on a lengthy exercise as is undertaken by Regular Courts oblivious of the fact that the proceedings before it were summary proceedings. The Will in favour of the petitioner's father being later in point of time prevailed over the earlier Will, but this aspect was ignored.
Sri A.S. Chaudhary, learned counsel appearing for the opposite party No.4 contended that the Probate issued by the competent court is a judgment in rem, which was binding on the Mutation Courts, therefore, they rightly ruled in favour of his client. The possession referred in section 34 and 35 is not only actual physical possession, but also constructive possession. The Will dated 28.6.1996 in favour of the petitioner's father Shiv Ram Singh could not be proved, therefore, he said, that the petitioner, who had lost from all the Courts below, was not entitled to any relief.
The opposite party nos.5 and 6 are proforma parties, therefore, notices have not been issued to them.
The dispute herein is between the petitioner and opposite party No.4. The petitioner's predecessor-in-interest i.e. his father Shiv Ram Singh claimed mutation on the basis of unregistered Will dated 28.6.1996. Ram Harakh Singh claimed mutation on the basis of another unregistered Will, earlier in point of time, dated 27.6.1996 in respect of which he had obtained a Probate. As per the will, after the death of Ram Harakh Singh the property was to devolve upon the educational institution i.e. opposite party no.4 herein.
No doubt mutation proceedings are summary proceedings, but if a report is filed under section 33 read with section 34 of the Act 1901, especially when a dispute arises thereby attracting section 35 and the claim is on the basis of a Will, a prima facie view as to its genuineness has to be formed by the Mutation Courts.
The possession referred in the aforesaid provision is not only actual physical possession, but also constructive possession, as held by a Full Bench decision of the Board of Revenue in the case of Dassiyan Vs. Smt. Sukhan reported in 1973 RD Page 211 .
In this case both the petitioner and contesting party claimed mutation on the basis of an unregistered Will executed by the recorded tenure holder Smt. Tapeshwari Kunwari. On a perusal of the orders of the Courts below it is found that the Will dated 28.6.1996 alleged to have been executed in favour of the petitioner's father could not be proved. No effort was made by Sri I.D. Shukla to dwell on this aspect of the matter and the pleadings in the writ petition are also woefully silent in this regard. No effort was made to bely the reasoning given by the Courts below in this regard.
The reasons given by Courts below in this regard do not suffer from any error nor could any such error be pointed by Sri Shukla.
As against this the opposite party No.4 through Ram Harakh Singh filed a Probate issued by a competent Court under the Indian Succession Act 1925 (hereinafter referred as ''Act 1925') and in addition to it, proved the Will in terms of Section 68 of the Indian Evidence Act, read with section 63 of the Act 1925. Probate being a judgment in rem was binding on the Mutation Court also.
A Probate establishes the genuineness of the Will. Reference may be made in this regard to section 227 of the Act 1925 which reads as under:
"Sec. 227- Effect of probate.--Probate of a Will when granted establishes the Will from the death of the testator, and renders valid all intermediate acts of the executor as such."
A Probate Court has no jurisdiction to decide title of a testator in respect of the property nor as to what the Will meant nor its construction, but otherwise it is binding against the whole world. Reference may be made in this regard to the decisions reported in (2008) 4 SCC 300, Krishna Kumar Birla vs. Rajendra Singh Lodha and Ors.; (1985) 1 SCC 144, Rukmani Devi (Smt.) and Ors. vs. Narendra Lal Gupta; AIR 1946(33) Oudh 193, Thakurain Raj Rani & ors. v. Dwarka Nath Singh & ors., Raghubar Dayal v. Mt. Maharaja; AIR 1941 Bombay 60, Bai Parvatibai vs. Raghunath Lakshman; AIR 1960 Rajasthan 237, Thakur Madhosingh vs. Jagdambalal and Anr., AIR 1957 SC 875, Surinder Kumar v. Gian Chand.
The fact that the petitioner was not a party to the Probate proceedings, is inconsequential considering the nature of the proceedings as has been held by the Supreme Court in the case of Surinder Kumar (supra), the relevant extract of which is being quoted hereinbelow:
"(5) An objection to the admission of additional evidence at this stage is taken by the respondents on the ground that the probate was obtained without their knowledge and that the application was made at a late stage, it deprived the respondents of the valuable right which vests in them because the claim has become statute barred and that there is no provision in the Rules of this court for the admission of additional evidence.
It is clear that the probate was applied for and obtained after the judgment of the High Court and therefore could not have been produced in that court. The judgment of the Probate Court must be presumed to have been obtained in accordance with the procedure prescribed by law and it is a judgment in rem. The objection that the respondents were not parties to it is thus unsustainable because of the nature of the judgment itself.
Furthermore it was open for the petitioner to seek revocation of the Probate under Section 263 of the Act 1925, which he did not do. Reference may be made in this regard to the decision reported in (1879) 4 CAL 360, Kolollqchun Dutt & ors. v. Nilruttun Mundle. Others did seek revocation, but their claim was rejected, a fact admitted to Sri I.D. Shukla, Advocate during the course of argument and recorded in the orders of the Courts below.
As regards the contention that the petitioner is in possession therefore, under Section 34 and 35 of the Act 1901 the Mutation Courts erred in ignoring this aspect firstly the Courts below have considered this aspect of possession also, as is evident from the order of the Tehsildar which refers to the witnesses of possession and their contentions have been considered. Secondly, the possession referred in section 34 and 35 does not merely mean actual physical possession, especially when pitted against a title-holder, but a constructive one also, as, a rightful title-holder cannot be denied mutation merely because a trespasser is in possession, unless title on the basis of an adverse possession is established, which is not the case here.
In view of the above, there is no valid ground for interference with the order of Mutation Courts under Article 226 of the constitution of India. The writ petition is accordingly dismissed.
Order Date :- 27.07.2017
A.Nigam
(Rajan Roy, J.)