The legality of a will should be challenged in a competent court of law, and a summary inquiry should be conducted before attesting a mutation of inheritance.

ORDER :

1. This revision petition under Section 17 of the H.P. Land Revenue Act, 1954, is based on the recommendations made by the Id. Commissioner, Shimla Division, dated 08.09.2011, in revision petition No. 20/2009, filed before him, against the order dated 28.11.2008, passed by the Collector, Sub-Division, Shimla (Rural), in Case No. 15-VIII/02, whereby he has upheld the order of the A.C. IInd Grade, dated 13.06.2002 passed on mutation No.375, vide which the mutation of inheritance of Shri Lachhmi Ram, attested in favour of the present respondent, Shri Desh Raj, bassed on a registered 'will'.

2. Briefly stated, the facts of the case are the Shri Lachhmi Ram son of Balak Ram, resident of village Doomi, Pargna Kamli, Tehsil & Distt. Shimla, executed a registered 'will' (deed No. 31) on 21.08.1990, in favour of Shri Desh Raj, present respondent, qua the land situated in revenue estate Sheela Kalan and Doomi, by cancelling his earlier 'will' dated 3.3.1989. After the death of Shri Lachhmi Ram, the A.C. IInd Grade Shimla (Rural), has attested a mutation No. 375 on 13.6.2002, in favour of the respondent on the basis of the aforesaid 'will'.

3. Feeling aggrieved by the above order of the A.C. IInd Grade, the present petitioners, Smt. Savitri Devi & Krishna Devi, filed an appeal before the Collector, Sub-Division, Shimla (Rural) mainly on the ground that there is no legal and valid 'will' in favour of all legal heirs/appellants. That the impugned mutation was neither taken up for disposal in the presence of estate right holders, or other respectable persons of the area. The Id. Collector, after hearing the parties, dismissed the appeal vide the order dated 28.11.2008, passed in Case No. 15/VIII/2002, holding that the A.C. IInd Grade, has righty attested the mutation under challenge and there appears no error on his part and upheld the same.

4. Still dissatisfied, the petitioners has filed a revision petition before the Commissioner, Shimla division, who observed that:

.......there are more than sufficient reasons to conclude that neither any summary enquiry was conducted nor both legal heirs were heard by the Asstt. Collector before sanction of the mutation. The Id. Sub-Divisional Collector, Shimla (Rural) also overlooked these mandatory and substantial short comings on the part of Asstt. Collector resulting into miscarriage of justice."

Therefore, the Ld. Commissioner referred the matter to this court with his recommendations for setting aside the orders passed by both the courts below and to remand the case back to the Assistant Collector, Shimla (Rural) to hold a summary enquiry and decide the mutation afresh.

5. I have heard the Id. Counsel for both the parties. Ld. Counsel for the petitioner argued that the dispute is with regard to the mutation of inheritance of their father Shri Lachhmi Ram, and the present petitioners being his daughters, are his legal heirs. The respondent, who is a nephew in relation has get the will registered in his name on the basis of which, the A.C. IInd Grade, without affording opportunity of being heard to both the daughter, attested the mutation in his favour. The Ld. Counsel, therefore, urged that the recommendations made by the Commissioner my kindly be accepted.

6. In reply, the Ld. Counsel for the respondent argued that the A.C. IInd Grade had given ample opportunity to the petitioners to present their case and to file the objection, if any, but they failed to do so and finally the mutation was attested by A.C. IInd Grade on 13/06/20002 when one of the petitioners Smt. Savitri Devi was present before him. It was further stated that, if the petitioners have any doubt with regard to the genuineness of the will, they have a remedy to challenge the same before the civil court. Therefore, the Ld. Commissioner has wrongly recommended for remanding the case back to the Assistant Collector, for holding summary enquiry and to decide the mutation afresh, and the same deserves to be declined.

7. Having considered