Sh. Subash Chander Kakkar vs Union Of India (Uoi) And Anr.
2003 Latest Caselaw 964 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. Rule. The matter is taken up for final disposal with the consent of the parties.

2. The present petition has been filed because respondents have failed to mutate the property No. F-14-AB(SS), Moti Nagar, New Delhi in the name of the petitioner.

3. The facts of the case in brief are that the petitioner's father (late Sh. Dina Nath) was recorded as the owner of the said property. The petitioner's father died on 11th February, 2000. The petitioner's father was allotted the said property by an allotment letter dated 30.4.1956. Thereafter by a lease dated 30th July, 1969 the petitioner's father was granted the said property on lease for 99 years. Late Sh.Dina Nath left behind the petitioner, another brother and two sisters of the petitioner as the legal heiRs. The petitioner's brother and sisters have given relinquishment deeds in favor of the petitioner in respect of the said property. On the basis of the registered Will, Relinquishment Deeds, Death Certificate and Affidavits in prescribed format of the other legal heirs of late Sh.Dina Nath, the petitioner applied for mutation of the said property in his name by an application dated 12.6.2000. That application has not been allowed till date on account of an allegation on the part of the respondents that Late Sh.Dina Nath's brother has objected and raised certain disputes.

4. It is clear from the admitted facts that the property was in fact leased out to Late Sh. Dina Nath in his name alone and there is no mention of any other person other than him in the lease deed. Records of the respondents also show Late Shri Dina Nath as the owner and possessor of the property in question. As per the Land Records Manual of the Land and Development Office of the Government of India, New Delhi substitution procedure is prescribed under Chapter 28 and is as under:-

"Substitution is the process of mutation of the names of legal heirs on the death of Lessee. Application for this purpose shall be made on a plain paper signed by all or one of the heirs accompanied by the following documents:-

(i) Attested copy of the death certificate of the lessee issued by the Local BoDy.

(ii) Affidavit in the prescribed format of all the legal heirs, duly sworn before the Magistrate/Sub-Judge if the property is to be substituted in favor of all the legal heiRs.

(iii) Certified copy of the relinquishment deed duly registered with the Sub-Registrar in whose jurisdiction the property is situated in case one or more legal heirs want to relinquish his/her share in favor of the applicant.

(iv) Copy of the 'Will', if any, left by the lessee.

If the application and the documents furnished are in order and there is no dispute about the genuineness of the 'Will', substitution letter shall be issued to the applicant within three months. Where genuineness of 'Will' is disputed by any of the legal heirs, the following procedure shall apply in respect of registered or unregistered ' Will'."

5. From the above, it is clear that if the application and documents furnished are in order and there is no dispute about the genuineness of the 'Will', the substitution letter shall be issued to the applicant within three months. It is further noted that where genuineness of the 'Will' is disputed by any of the legal heirs the procedure prescribed there under would apply.

6. The learned counsel for the respondents submit that since there is no dispute pending the mutation has not been carried out. However, the dispute that is supposedly pending is not with regard to the genuineness of the Will nor is it a dispute between the legal heirs of late Sh.Dina Nath. The purported dispute is between late Sh.Dina Nath and his brother who is questioning Late Shri Dina Nath's right to the property itself. That cannot be questioned inasmuch as the lease stood in the name of late Shri Dina Nath. He died, leaving behind a registered will. The petitioner and his brother and two sisters are his only legal heiRs. The other legal heirs of Late Shri Dina Nath have relinquished their shares in favor of the petitioner and all the documents as prescribed in the manual are in order. There is no dispute with regard to this. As such the mutation ought to have been carried out within three months of the application. It was not carried out because the respondents were under some mistaken impression that there was some dispute pending. In any event it is now clear that the dispute that is referred to in the manual is only with regard to the genuineness of the Will. There is admittedly no dispute with regard to the genuineness of the Will which is pending.

7. Under these circumstances, the respondents and in particular respondent No. 2 is directed to process the application of the petitioner and mutate the property in his name if the documents are otherwise found to be in order within a period of two weeks from today.

The writ petition is allowed to the extent indicated above. No order as to costs.