The last Will of a person should prevail, but when contested, the unregistered Will should be proved in the civil Court.

Rajwant Sandhu, IAS, Financial Commissioner

1. This appeal has been filed against an order dated 11.9.1991 passed by the Divisional Commissioner, Kangara vide which he has disposed off two appeals Nos. 82/89 and 104/89. Brief facts of the case are that one Shri Khushia died on 9.12.1986 and the mutation of his inheritance was sanctioned by the Assistant Collector, Ilnd Grade vide mutation No. 684 in favour of Shri Gurdip Chand, Gurdas Ram, sons and Smt. Shakutla Devi, daughter of Shri Khushia on 30.3.1988 on the basis of unregistered Will. The order of the Assistant Collector, Ilnd Grade was challenged by the Petitioners before the Collector Settlement, Kangra who accepted the appeal and set aside the orders of the Assistant Collector Ilnd Grade with the directions that the mutation be attested as per a registered Will dated 16-7-1986 executed in favour of the Petitioners. This order dated 16-7-1986 was challenged before the Divisional Commissioner, Kangra in two appeals No. 82/89 and 104/89. The Divisional Commissioner decided the matter vide a single order dated 11.9.1991 holding that the mere fact that mutation was attested on the basis of an unregistered 'Will' should not have been the reason to set it aside. He held that it was the last Will which had to be taken as the testament of the party. This order has been assailed in revision petition before this Court on the ground that the attesting witness to the unregistered Will could not give the exact date of its execution and that Shri Khushi Ram had died on 9.12.1986 after prolonged illness and therefore, he could not have been expected to have a sound mind on 7-12-1986 just two days before he died.

2. The record of the Courts below have been called for and examined. The arguments advanced by the learned Counsel for the parties have been heard.

3. The learned Counsel for the Appellants reiterated the grounds of appeal and stated that the unregistered 'Will' had been produced by the Respondents in late stage. While the executor of the 'Will' Shri Khushia had died on 9.12.1986, the unregistered 'Will' was produced before the revenue staff in 1988 and Mutation No. 684 regarding inheritance of Shri Khushia got entered. The Settlement Officer has rightly observed that the mutation should have been entered on the basis of the registered 'Will' executed by Shri Khushia on 16.7.1986 in favour of the Petitioners. The unregistered 'Will' should first have been proved in the civil Court before it was taken up for implementation. Moreover, the circumstances of the alleged execution of the 'Will' point to suspicions regarding the same. Shri Khushia had executed the registered 'Will' on 16.7.1986 and he had died on 9.12.1986. The unregistered 'Will' was claimed to have been executed two days before his death i.e. on 7.12.1986. Since Shri Khushia was on his death bed at the time that this alleged 'Will' was executed, it is likely that he was not then in sound disposing mind. Moreover, the unregistered 'Will' made no mention of the 'Will' executed earlier on 16.7.1986 when the registered 'Will' had been executed only 4 months earlier. There was no reason for Shri Khushia to have changed his mind and recorded an unregistered 'Will' two days prior to his death. Moreover, there were several doubts regarding the execution of this later 'Will'. Counsel further stressed that although it is the last 'Will' of a person that is to be implemented yet if there were doubts regarding the execution of such document, proving its execution should be done through a suit before the civil Court as intricate questions of law were involved in such matters.

The learned Counsel for the Respondents argued that it was a settled law that the last 'Will' of a person ought to prevail. The fact that the last 'Will' was unregistered was no ground to reject the same. Counsel cited several judgments in support of his contention that the latest 'Will' should proved.

4. Perusal of the record does show that the 'Will'