1999 Supreme(All) 894

IN THE HIGH COURT OF ALLAHABAD
O. P. Garg, J.
NAVEEN CHANDRA SETH - Appellant
Versus
COMMISSIONER, ALLAHABAD - Respondents
Civil Misc. Writ Petition 15926 Of 1999
Decided On : 07/05/1999

A Hindu can make a testamentary disposition of his properties and thereby change the course of ordinary law of inheritance.

Headnote:

NAZUL LAND - MUTATION OF NAMES - WILL - COMPETENCY OF ADDITIONAL DISTRICT MAGISTRATE (NAZUL) TO PASS ORDERS - JURISDICTION OF COMMISSIONER OF THE DIVISION - VALIDITY OF WILL - CHANGE OF ENTRIES IN NAZUL REGISTER - POWERS OF COLLECTOR AND ADDITIONAL COLLECTOR - MUTATION PROCEDURE - RIGHT TO ESTABLISH RIGHT TO PROPERTY IN CIVIL OR REVENUE COURT - CLEAN HANDS DOCTRINE.

Fact of the Case:

The dispute relates to the mutation of names over Nazul plot of land No. 34, George town, Allahabad, admeasuring 1007 sq. yards. The lease agreement of the said plot was executed on 23.10.1914, to be effective from the retrospective date, i.e., 1.1.1910 for a period of 90 years subject to renewals after every 30 years in favor of Rai Keshri narain Chaddha. After the death of Triyugi Narain Chaddha, lease rights were inherited by his two sons, namely, Satyugi Narain Chaddha and Triloki Narain Chaddha. Satyugi narain Chaddha executed a Will dated 19.4.1957 bequeathing his rights in the Nazul land in favor of Tej Narain Chaddha son of Triloki Narain Chaddha respondent No. 3 and in respect of his share in the house constructed on the Nazul land, in favor of his wife Smt. Shakuntala Devi and his daughter Smt. Raj Kumari Seth who was married to Amar Chand Seth. Triloki narain Chaddha in his turn executed a Will in respect of the lease rights in favor of his grandson Deepak Narain Chaddha, son of Tej Narain Chaddha respondent No. 4 on 3.7.1983. Smt. Raj Kumari Seth moved an application dated 23.4.1998 asserting herself to be the lessee of half share in the Nazul property and prayed for mutation of her name over the same. The case of Smt. Raj Kumari Seth found favor with the collector/district Magistrate who passed an order on 17.8.1998 rejecting the mutation of the names of respondent Nos. 3 and 4 and directed that the name of Smt. Raj Kumari Seth be mutated. The order passed by the Collector was carried out. The respondent Nos. 3 and 4 challenged the order passed by the District Magistrate by making a representation before the divisional Commissioner. They also filed a Writ Petition No. 36661 of 1998 which was finally disposed of on 15.1.1999 by a Division Bench of this Court. Pursuant to the above order passed by this Court, the divisional Commissioner allowed the representation/appeal of the respondent Nos. 3 and 4 by passing order dated 9.3.1999, Annexure-1 to the writ petition and set aside the order dated 17.8.1998, passed by the District Magistrate. The present petitioners filed a review application before the Divisional Commissioner who rejected the same by order dated 5.4.1999, a copy of. which is Annexure-1a to the writ petition.

Finding of the Court:

The orders passed by the Commissioner of the division cannot be assailed. The orders passed by the A. D. Ms on 20.6.1963 and 19.3.1997 were passed in their capacity as the Collector and, therefore, their orders could not be set aside by the District Magistrate and if the District Magistrate has taken to his head in an Illegal manner to set aside the orders passed by the Additional Collectors. In that event, officer superior to District Magistrate could set aside the order passed by the District magistrate. No exception can be taken to the orders passed by the Commissioner which appears to be quite appropriate, just and equitable.

Issues: 1. Whether the Additional District Magistrate (Nazul) was competent to pass orders for mutation of names over Nazul land? 2. Whether the Commissioner of the Division had jurisdiction to set aside the order passed by the Collector in respect of the Nazul land? 3. Whether the Will dated 19.4.1957 alleged to have been executed by Satyugi Narain Chaddha is valid? 4. Whether the change of entries in the Nazul register can be done by the Collector only or the Additional Collector also has the power to do so? 5. What is the procedure for mutation of names in respect of Nazul land? 6. Whether a person who does not come with clean hands before the Court is entitled to the discretionary relief under Article 226 of the Constitution?

Ratio Decidendi: 1. The Additional District Magistrate (Nazul) was competent to pass orders for mutation of names over Nazul land as the expression "Collector" used in the Nazul Manual includes Additional Collector. 2. The Commissioner of the Division had jurisdiction to set aside the order passed by the Collector in respect of the Nazul land as the District Magistrate is an officer subordinate to the Commissioner and the Commissioner has the implied and implicit administrative power to perform and function which its subordinates can discharge. 3. The Will dated 19.4.1957 alleged to have been executed by Satyugi Narain Chaddha is valid as it was executed by him in his full senses with all consciousness realizing the implications of what he was going to do. 4. The change of entries in the Nazul register can be done by the Collector as well as the Additional Collector as the expression "Collector" used in the Nazul Manual includes Additional Collector. 5. The procedure for mutation of names in respect of Nazul land is provided under Rule 5a of the Nazul Manual. 6. A person who does not come with clean hands before the Court is not entitled to the discretionary relief under Article 226 of the Constitution.

Final Decision: The writ petition is dismissed without any order as to costs.