Back
1975 Supreme(Cal) 72
High Court Of Calcutta
B.C.Roy, J.
Braja Mohan Sarkar
Vs.
State Of West Bengal
Decided On : March 14, 1975
Advocate Appeared:
Bimal Kumar Datta, Sipra Sircar
The Revenue Officer's jurisdiction under section 44 (2a) of the Act is limited to determining possession at the date of vesting and does not extend to questioning the genuineness or motive behind the execution of a will.
Headnote:
WILL - Land Dispute - The court held that in a proceeding under section 44 (2a) of the West Bengal Estates Acquisition Act, the Revenue Officer is not competent to decide the genuineness or validity of a will executed before the enforcement of the Act. The Revenue Officer's jurisdiction is limited to determining possession at the date of vesting and cannot question the motive behind the execution of the will.
Fact of the Case:
The petitioners obtained land based on a will executed by their grandfather. A proceeding was initiated to produce documents supporting the correctness of the record of rights. The Revenue Officer ordered modification and revision of the records, questioning the validity of the will.
Finding of the Court:
The court found that the Revenue Officer exceeded jurisdiction by questioning the genuineness and motive behind the will in a proceeding under section 44 (2a) of the Act. The disputed property vested in the petitioners before the enforcement of the Act, and the order was not justified.
Issues: Validity of the will, Jurisdiction of the Revenue Officer, Possession of the disputed property
Ratio Decidendi: The Revenue Officer's jurisdiction is limited to determining possession at the date of vesting and cannot question the genuineness or motive behind the execution of a will in a proceeding under section 44 (2a) of the Act.
Final Decision: The application succeeded, and the Rule was made absolute. The court held that the disputed property cannot be treated as the property of the testator, and the Revenue Officer's order was not in accordance with the law.
1. THIS application is directed against order No. 3 dated June 24, 1970 passed by P. C. Paul, Assistant settlement Officer, in Objection Case no. 17 of 1970.
2. THE petitioners' case is that they obtained this land on the basis of a will executed by their grand-father Ram chandra Mondal on 12th Jaistha, 1359 b. S. in respect of the lands comprised in Khatians Nos. 91 and 93 in Mouza kachna, P. S. Kaliganj, District West dinajpur. After the demise of their grand-father, Ram Chandra Mondal, on Sravana 30, 1360 B. S. the petitioners duly obtained letters of Administration of the said will from the court of the District Judge, West Dinajpur, on 4th June, 1956. The petitioner have been all along in possession of the said lands and their names have been duly recorded in the R. S. record of rights which were finally published
In 1970 a proceeding under section 44 (2a) of the West Bengal Estates Acquisition Act being Objection Case No. 17 of 1970 was started suo mutu by the Revenue Officer, Raiganj, asking the petitioners to produce documents in support of the correctness of the record of rights in respect of the said lands. The petitioners appeared through their lawyer and produced the said will as well as the Letters of Administration granted by the Court in support of their contentions that they obtained the said land from their grand-father on the basis of the said will. The Revenue Officer on June 24, 1970 passed an order holding that the said will was made to deprive the State of its due share in the surplus lands and as such the records of rights requires modification and revision under section 44 (2a) of the Act and directed for deleting the names of Brojamohan Sarkar and Khargeswar Sarkar from the Khatians nos. 91 and 93 and recording the names of Rajmohan and Harimohan Sarkar sons of Ram Chandra Mondal in column No. 13 of the said Khatians each having 8 annas share.
3. IT is against this order, this Rule was obtained. Mr. Dutt appearing on behalf of the petitioner contends firstly that in a proceeding under section 44 (2a) the Revenue Officer is not legally competent to decide the genuineness or validity of the will. He submits that the will has been executed is 1359 B. S. that is, long before the enforcement of the West Bengal Estates Acquisition Act and letters of administration of the same was also duly obtained and as such it is not within the province of the Revenue Officer to question the validity of the said will.
4. MR. Dutt has next contended that the Revenue Officer is not also competent to decide the motive or intention of the testator in executing the said will and as such the order of the Revenue Officer is wholly without jurisdiction and is liable to be quashed and set aside.
With regard to the first contention of Mr. Dutt, learned Counsel for the petitioner, it appears that the will was executed long before the enforcement of the West Bengal Estates Acquisition Act and probate of the said will was duly obtained from court. So the question of genuineness of the said will cannot be questioned in a summary proceeding under section 44 (2a. In a proceeding under section 44 (2a) the only question to be decided if whether the person in whose name the property was recorded was in possession at the date of vesting or not and in deciding that question the Revenue Officer can incidentally go into the question of title, rather the basis of such possession, but it is not within his jurisdiction to decide the question of title or the validity of a particular document directly in a proceeding under Section 44 (2a) of the Act. In this case, it is evident that the names of the petitioner have been recorded on the basis of those documents of title as well as on the basis of their possession at the date of vesting. There is no material on record to show otherwise. The order of the Revenue Officer therefore is not justified in this background.
5. WITH regard to the second contention of Mr. Dutt, it appears that the revenue
