Gurmit Kaur and Others vs The Financial Commissioner (Appeals), Punjab, Chandigarh and Others

Ranjit Singh, J.—Aggrieved against the action of the revenue officer to ignore the registered will for carrying out mutation in favour of the petitioner, they have approached this Court through the present writ petition. Respondent, Davinder Kaur, was the first wife of deceased Amrik Singh and respondents, Narinder Singh, Joginder Singh and Arjinder Singh are the sons of Amrik Singh and Davinder Kaur. It is stated that she deserted Amrik Singh long ago and started living in a different village. Amrik Singh then contracted a second marriage with Gurmit Kaur, petitioner. Out of this marriage, three sons were born and they served Amrik Singh throughout his life. Deceased Amrik Singh executed a registered will in favour of the petitioners i.e. his second wife and three sons on 7.4.1999. Amrik Singh died on 30.9.2007. Mutation was entered in favour of the petitioners on the basis of this registered will on 7.12.2007. Davinder Kaur and her three sons contested this mutation. The petitioners claim that the registered will was proved before the Assistant Registrar by two marginal witnesses. Assistant Registrar, however, found the will to be shrouded by suspicion and sanctioned the mutation on the basis of natural succession in favour of all the six sons and first wife. He ignored second wife, which is stated to be contrary to the provisions of Section 10 of Hindu Succession Act (for short, "the Act"). As per counsel, Section 10 of the Act provides, joint succession by widow, if there are more than one widow of the deceased.

The Collector, however, sanctioned the mutation on 29.5.2000 on the basis of registered will and set-aside the order passed by the Assistant Collector Ist Grade. Against this, appeal was filed and was accepted by the Additional Commissioner, Appeals, Jalandhar on 21.1.2010. The Financial Commissioner has dismissed the revision in limine. The petitioners, as such, have filed this petition, challenging the order passed by the Commissioner and the Financial Commissioner.

The submission is that the revenue officers would have no jurisdiction to reject the registered will by recording evidence and thereby assuming the jurisdiction of the Civil Court.

Respondents have filed reply and have justified the orders impugned in the present writ petition.

The Additional Commissioner has recorded various reasons in his order to observe that the will is a suspicious document. There may not be much dispute that the revenue officers are not to determine the validity of the will and this issue has to be adjudicated by the Civil Court but to say that the revenue authorities or the officers are bound to record the mutation on the basis of a registered will may not always be a binding course, which is to be adopted. In Bharpur Singh and Others Vs. Shamsher Singh, it is held that when the will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the parties. It becomes a matter of Court''s conscience and propounder of will has to remove all suspicious circumstances to satisfy that the will was duly executed by the testator. In such a case, registration of will by itself would not mean that statutory requirement of proving the will need not be complied with.

In this case, effect of second marriage of late Amrik Singh with Gurmit Kaur, concededly a second wife, which was performed during the subsistence of earlier marriage, out of which three sons were born, may have to be seen for carrying out mutation. Merely because the first wife had deserted, even if accepted as submitted, would not lead to annulment or nullifying that marriage in the eyes of law to give legal colour to the second marriage with petitioner, Gurmit Kaur. It is also not certain as to what is the nature of property whether it is coparcenary property or self acquired property of Late Amrik Singh. All these issues may have to be settled in an appropriate Civil Court proceedings before this will is relied for the purpose of mutation. The revenue authorities obviously can not go into these issues in detail. The best course for them would be to wait till some finding comes on the validity of this will, which would be in the domain of Civil Court. It would, therefore, be appropriate to direct that the mutation be held in abeyance till the decision of the Civil Court, if and when filed. Rights of the parties can be safeguarded by restraining the parties from alienating the land in question till finalisation of the mutation proceedings. Till the decision of the Civil Court, the present arrangement about the mutation can be maintained. The writ petition is, thus, dismissed.