Raj Kumar and others vs Karam Devi

B.B. Mahajan, F.C.

The instant reference dated 29.10.1981, from the Additional Commissioner, Ferozepur Division, Ferozepur, is the outcome of a revision petition filed by the petitioners under section 16 of the Punjab Land Revenue Act, 1887, against the order dated the 17.10.1980 of the Collector, Ferozepur, who dismissed the appeal of the petitioners.

The facts of the case are given, in detail in the reference, which may be read as a part of this order. I heard the learned counsel for the petitioners and respondent No. 5 on 18.7.1983. The counsel for respondents No. 1 to 3 was not present at the time of arguments, but appeared before me after the arguments were heard and requested to be marked present.

The Assistant Collector I Grade, Fazilka in this case ignored the unregistered Will dated 1.9.1973 purported to have executed by Shri Jawahar Lal of village Jandwala Bhime Shah, Tehsil Fazilka on the ground that it was a suspicious document and sanctioned the mutation of inheritance in favour of all the natural heirs. The circumstances which led to the conclusion that the Will was a suspicious document were briefly :

(a) The Will has been executed on the same day on which the testator died, according to the entry in the Chowkidara Register the deceased was suffering from very high fever for 10 days preceding his death and it appeared highly doubtful how the person who is seriously ill can take the trouble of travelling a distance of 25 kilometers to execute his Will.

(b) The Will was alleged to have been scribed at 8 A.M. while the Tehsil Courts open at 9 A.M.

(c) It has not been properly explained as to why the deceased deprived the natural heirs.

The learned Collector, Ferozepur, also considered the will to be a suspicious document because apart from the grounds mentioned by the Assistant Collector I Grade, there is no mention in the Will of the testator having any daughters at all. He felt that a normal thinking person would explain in the will the reason why he is depriving his daughters of their share. Moreover, the only attesting witness who has been produced before the Revenue Officer viz. Ashok Kumar Khera, was a lawyer to the deceased in several cases and had admitted that he had in his possession several powers of attorney given to him by the deceased client and he was also in possession of blank papers signed by his client late Jawahar Lal. The scribe of the Will is not a registered document writer and had also worked as a clerk with Shri Ashok Kumar Khera, Advocate. Further, the Chowkidara Register showed that Shri Jawahar Lal had died at 8 A.M. and according to the evidence of the Chowkidar he was physically handicapped to move. His going to Fazilka from his village which is at a distance of 25 kilometers at 85 years of the age and physical state seems doubtful. It was also doubtful whether Jawahar Lal deceased had at all gone to Fazilka because while it had been stated that he went there by a jeep, no evidence about the particulars of the jeep, its driver or anybody from the village having seen them leaving in the jeep was produced and the scribe of the Will who appeared on behalf of the beneficiaries had stated that they had come on foot and did not have any vehicle in the Court compound. The learned Collector, therefore, agreed with the findings of the Assistant Collector, I Grade, Fazilka and rejected the appeal.

It is settled law that while an unregistered Will should be given effect to in mutation, if there are doubtful circumstances under which a Will has been executed such wills should not be relied upon in mutation proceedings. The question whether a Will is surrounded by suspicious circumstances is a question of fact. On this question, both the lower courts have come to a concurrent finding that the Will is suspicious. The learned Additional Commissioner, Ferozepur, has recommended the revision on the basis of his assessment of the evidence according to which the Will is not suspicious. I am afraid it is not possible to interfere in revision on the basis of different assessment of the evidence from the concurrent finding of the lower Courts, when the findings are based on proper evidence and are supported by cogent reasons. The learned counsel for the petitioners has not been able to show from the record any evidence which has been ignored by the learned Assistant Collector, I Grade, Fazilka and Collector Ferozepur and which could have altered the decision in favour of the petitioners. There was no want of jurisdiction on the part of either the Assistant Collector I Grade or the Collector. There is also no material irregularity or illegality in the proceedings which may justify interference in revision. I am accordingly unable to accept the reference from the learned Additional Commissioner, Ferozepur Division. The petition is rejected. Reference declined.