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2010 Supreme(Raj) 903
[Citation : RLW 2011(2) RJ 746]
(Board of Revenue for Rajasthan)
Brij Mohan Vs. Mahaveer Prasad & Ors. (Mathur, M.)
PRAMIL KUMAR MATHUR, MEMBER
Brij Mohan
Versus
Mahaveer Prasad & Ors.
Appeal/176/2009/Kota, decided on 12.10.2010
Ashok Agarwal, for Appellant;
Purna Shanker Dashora, for Respondents No.1 & 2;
Sameer Ahmed, Dy. Govt. Advocate, for State-Respondent No.3
Headnote:Rajasthan Land Revenue Act, 1956, Sec. 136; Rajasthan Land Revenue (Land Records) Rules, 1957, Rule 132 — Attestation of mutation — Whether last or registered Will is to prevail — Appellant claims attestation of mutation in his favour on the basis of last Will executed on 7.6.2007 which is unregistered — Respondents being natural heirs presented registered Will dated 27.2.2007 — Tehsildar attested mutation in favour of respondents — Held — As per Rule 132 the authority concerned is required to open the mutation on the basis of registered Will — Respondents besides holder of registered will are also natural heirs of the deceased — Mutation proceedings are purely fiscal proceedings wherein rights and title of the parties cannot be decided — Committed no illegality — Concurrent finding. (Paras 10 to 14)
Appeal dismissed.
jktLFkku Hkw-jktLo vf/kfu;e] 1956] /kkjk 136( jktLFkku Hkw-jktLo ¼Hkw-vfHkys[k½ fu;e] 1957] fu;e 132 & ukekUrjdj.k dh rLnhd & D;k vfUre ;k iaftd`r olh;r vfoHkkoh gksxh\ & vihykFkhZ fnukad 7-6-2007 dks fu"ikfnr vfUre olh;r] tks viaftd`r gS] ds vk/kkj ij vius i{k esa ukekUrjdj.k dh rLnhd dk nkok djrk gS & izR;FkhZ tks fd uSlfxZd okfjl gS] us 27-2-2007 fnukafdr iaftd`r olh;r is'k dh & rglhynkj us izR;FkhZx.k ds i{k esa ukekUrjdj.k rLnhd fd;k & vfHkfu/kkZfjr & fu;e 132 ds vuqlkj lacaf/kr izkf/kdkjh ds fy, iaftd`r olh;r ds vk/kkj ij ukekUrjdj.k [kksyuk vko';d gS & izR;FkhZx.k iaftd`r olh;r /kkjh gksus ds vykok e`rd ds uSlfxZd okfjl gS & ukekUrj.kdj.k dk;Zokgh fo'kq) :i ls foRrh; dk;Zokgh ftlesa i{kdkjksa ds vf/kdkjksa ,oa LoRo dk fofu'p; ugha fd;k tk ldrk & dksbZ voS/kkfudrk dkfjr ugha dh & leorhZ fu"d"kZA ¼in la[;k 10 ls 14½
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2. Brief facts of the case which lead to this appeal are that appellant Brijmohan has filed an application before learned Tehsildar Ladpura District Kota stating that his uncle (Tauji) deceased Ramratan has executed a Will dated 7.6.2007 which pertains to land bearing khasra No. 270 area 0.92 hectare situated at village Balita Tehsil Ladpura District Kota in his favour. So mutation of aforesaid land be effect in his name.
3. After giving hearing opportunity to natural heirs of deceased Ramratan, learned Tehsildar on 4.7.2008 ordered to make mutation in favour of respondents No. 1 & 2 on the basis of registered Will dated 27.2.2007 executed by Ramratan in favour of respondent No. 1 & 2 and also on the basis of being natural heirs of deceased Ramratan.
4. Being aggrieved by order dated 4.7.2008 passed by learned Tehsildar Ladpura District Kota, appellant Brijmohan filed first appeal before the Additional Divisional Commissioner, Kota who also by his judgment dated 23.10.2008 rejected the appeal filed by the appellant Brijmohan. Hence, appellant Brijmohan has filed this second appeal.
5. I have learned the arguments of learned counsel for the rival parties.
6. Learned counsel for the appellant has submitted that both the lower Courts have passed the impugned judgments against the evidence and settled principles of law. This is well settled that last and final `Will' will prevail and registration for the will is not compulsory. A registered Will does not have an upper had on an unregistered Will. Mere registration does not strengthen the case of respondents because registered Will. On the perusal of order passed by the learned lower Courts it is clear that mutation was attested on the basis of testamentary documents not on the basis of inheritance, so according to the settled principles of law, subsequent and last Will shall prevail. In these circumstances, by ignoring the settled principles of law and giving importance to the earlier Will, both the lower Courts have committed mistake in passing impugned judgments. Hence, second appeal be allowed and order passed by the Additional Divisional Commissioner, Kota and Tehsildar Ladpura District Kota respectively on 23.10.2008 and 4.7.2008 be set aside and mutation be recorded in favour of the appellant.
7. On the contrary, learned counsel for the respondents No. 1 & 2 has submitted that mutation proceedings is purely fiscal proceedings, no doubt that registration of Will is not necessary, but in mutation proceedings no right and title can be decided if appellant has any grievance about his right and title. He can get it decided from the competent Civil Court. In mutation proceedings, appellant cannot dispute the validity of the registered Will. Respondents are natural heirs of deceased Ramratan, so mutation was rightly opened in their names. Hence, second appeal presented by the appellant be rejected.
He has invited my attention to the following citations:
1. Brij Sunder & Ors. vs. Kamlesh & Ors. 2009(1) RRT page 500
2. Om Prakash vs. Ashok Kumar & Anr. 2008(1) RRT page 241 = RLW 2008(1) RJ 41
3. Nemichand & Ors. vs. Kisturi & Ors. 2009(1) RRT page 381
4. Jagdish vs. Smt. Sukali & Anr. 2009(1) RRT page 376
5. Narayan & Ors. vs. Rukma & Ors. 1998 RRD page 553
6. Jethu Singh vs. Bhanwar Singh & Ors. 2003(1) RRD Page 650 = RLW 2003 RJ 51 (HC)
7. Harvilas vs. Vidhyadevi & Ors. 2004 RRD page 727 = RLW 2005(1) RJ 70
8. Jamna Lal & Ors. vs. Smt. Gopi Bai & Ors. RLW 2003(1) Raj. page 512
8. By agreeing with arguments advanced by learned counsel for respondents No. 1 & 2, learned counsel for State req
