Mamta Sharma vs Dushyant Lata And Another

Sharad Kumar Sharma, J

Late Mr. Raghunath Prasad Sharma was the real uncle of the husband of the petitioner was the owner of property No. 4/11, Ward No. 2, Gandhi Nagar, Gadar Pur, District Udham Singh Nagar. The husband of the petitioner has contended in the writ petition that he was residing together with Raghunath Prasad Sharma till late Mr. Raghunath Prasad Sharma breathed his last on 29.11.2003. The contention of the petitioner was that after her marriage with Anil Sharma, the petitioner was also living along with her husband and with Raghunath Prasad Sharma for last over 35 years, he had lived with the petitioner, and her husband.

The case of the petitioner is that on 01.05.2000, due to love, care and affection, late Mr. Raghunath Prasad Sharma had executed a registered Will in respect of his property in favour of his wife (respondent No. 1), and the two daughters and the husband of the petitioner.

As per the pleadings raised in the writ petition, it is contended by the petitioner that late Mr. Raghunath Prasad Sharma on 13.11.2003 had filed an application before the District Magistrate for transfer of his SBBL Gun No. 7110, License No.198/TPS/Naini/1953 in favour of the husband of the petitioner on the basis of which the said Gun license has been transferred in favour of the husband of the petitioner. Anyway, as far as the transfer of the said Gun/license is concerned, this Court is not concerned at this stage to be deal with it as its not in dispute or denied by the respondent No. 1.

Unfortunately, Raghunath Prasad Sharma met with the sad demise on 29.11.2003 at Gadarpur, District Udham Singh Nagar. The petitioner claims that the last rites of late Mr. Raghunath Prasad Sharma were performed by the petitioner's husband as Raghunath Prasad Sharma had no son and he died leaving behind his two daughters.

On 24.06.2004, the petitioner contends that on the basis of Will dated 01.03.2003, the Will, which was executed by Raghunath Prasad Sharma on 01.03.2003 in favour of the petitioner by virtue of which he had bequeathed his house No. 4/11, situated at Ward No. 2, Gadarpur, District Udham Singh Nagar in favour of the petitioner. On being made aware of the execution of the Will by Raghunath Prasad Sharma in favour of the petitioner, she contends to have moved an application before Nagar Palika Parishad, Gadarpur on 25.06.2004 for transfer of the property and the ownership right in her name on the basis of Will dated 01.03.2003 executed by late Mr. Raghunath Prasad Sharma in her favour.

The case of the petitioner is that Nagar Palika had not issued notice to petitioner, had given no opportunity to her to prove the Will, even so much so, respondent No. 2, gave no information about the progress of the case, in fact, she contends she was given no opportunity of hearing.

However, it is the case of petitioner that she came to know on 09.06.2005 that, the Nagar Palika Parishad had passed an order dated 07.07.2004 directing mutation of the name in favour of respondent No. 1 (wife of late Mr. Raghunath Prasad Sharma) who was claiming her right by virtue of a registered Will executed in her favour. Her rights was claimed being the wife of late Mr. Raghunath Prasad Sharma on getting knowledge of the order of mutation dated 07.07.2004 the same was put to challenged by the petitioner, by preferring an Appeal before the Chief Judicial Magistrate, Udham Singh Nagar, which has been dismissed by the impugned order dated 28.05.2010.

As per the document which has been brought on record and the findings which has been recorded by the Nagar Palika and consequently by the Chief Judicial Magistrate. while passing the impugned order dated 28.05.2010, both the parties have concurrently accepted the title of respondent No. 1 since being the legally wedded wife of late Mr. Raghunath Prasad Sharma and the interest which the petitioner was claiming over the property was based upon a Will executed by late Mr. Raghunath Prasad Sharma was not accepted by the Nagar Palika or by the Magistrate concerned because she has filed the application for mutation based on Will dated 01.03.2003, after the expiry of 30 days notice period by which objection was invited by publication on 10.01.2004, on the application of Respondent No. 1. Hence, concluded that petitioner cannot be mutated now hence she will have to get her right determined by competent Court of law based on the Will relied by her i.e. 01.03.2003.

But still the fact remains that the mutation which has been decided in pursuance of the impugned orders were based upon by way of succession by respondent No. 1 upon the application for mutation filed by Respondent No. 1 on 03.01.2004, as being the legally wedded wife of late Raghunath Prasad Sharma. On her application, a publication was made by Nagar Palika on 10.01.2004, inviting objections in 30 days, but no objection was filed by the petitioner within the time specified. Besides this, the claim of mutation by the petitioner was based on an unregistered Will allegedly executed on Rs. 10/- stamp paper, and after considering his claim, the respondent No. 1 was recorded on the basis of succession as wife, and her order of succession and mutation has not been challenged by the petitioner by filing of an appeal. Besides this, claim of mutation was not considered because even the unregistered Will dated 01.03.2003 was not filed by the petitioner in original before Nagar Palika, only a xerox copy was filed by her, but still this mutation of respondent No. 1 would not prejudice the petitioner's claim, if any, if she wants to establish it by preferring a regular proceedings of declaration of her rights by instituting of a regular suit.

Subject to the above observations, the writ petition, so far it relates to challenge to mutating of the name of respondent No.1 after the death of Mr. Raghunath Prasad Sharma on the basis of succession is concerned, the same is hereby dismissed.