- (1.) THIS revision has been filed against the appellate order of the Additional Collector, Bharatpur dated 15. 11. 58 whereby the original order of the Village Panchayat Balkhera, Tehsil Kama, District Bharatpur in a mutation case reversed:
(2.) THE facts of the case are not much in dispute. Sanwat Singh a recorded Biswedar in Khewat No. 6, Patti Chand Singh, village Biliond, Tehsil Kama executed a will on 20. 6. 56 in respect of his movable and immovable property in favour of Bhanwar Singh, who is the applicant before us and got it registered before the Sub-Registrar, Kama. Girraj Singh the opposite party in this revision who has since died instituted a suit in the Court of Munsiff Deeg against Bhanwar Singh; joining other collaterals as proforma defendants for a declaration that the will executed by Sanwat Singh was in-effective and inoperative. This suit was rejected. Sanwat Singh died sometime in 1958 and the village Patwari put up a mutation form before the village Panchayat for attestation. Before the Panchayat entries of the Wajib-ul-Arz were produced which prohibited the transfer by will of Biswedari rights without prior approval of the Government. A certified copy of a decision in a mutation case relating to a nearby village was also produced wherein the will was held inoperative. THE Panchayat Board in its decision conceded that the condition of the Wajib-u-Arz, revenue record and pedigree table left no room to doubt that all the collaterals of the deceased were entitled to succeed as against Bhanwar Singh who claimed inheritance through a will of the deceased, but as the Panchayat decisions were to be based on a majority of opinion and as the majority of the Panchas present wanted to decide the case in favour of Bhanwar Singh a decision was given accordingly by the Panchayat. When the matter went up in appeal before the Additional Collector Bharatpur he held that the Panchayat was not justified in ignoring the express provisions of the Act and even the majority of the Panchas could not alter the express provisions and hence the decision of the Panchayat was set aside and mutation was sanctioned in favour of the collaterals. Hence this revision. We have heard the learned counsel for the parties and have examined the record as well. Evidently both the lower courts omitted to follow the law which would govern the present case. As pointed out above, the deceased Sanwat Singh executed a will in favour of Bhanwar Singh applicant on 18. 6. 56 i. e. , after the enforcement of the Hindu Succession Act, 1956 on 17th June, 1956. Sec. 39 of this Act clearly lays down that any Hindu may dispose of by will or other testamentary disposition any property which is capable of being so disposed of by him in accordance with the provisions of the Indian Succession Act, 1925 or any other law for the time being in force and applicable to Hindus. Sec. 4 of this Act which gives overriding effect to the provisions of this Act lays down that any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act and any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act. The provisions of this Act do not apply to any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in such holding. Inheritance to Zamindari or Biswedari rights is not exempted from the purview of this Act and hence it would be governed by it. The result would, therefore, be that on the day when the deceased executed a will in favour of the applicant Bhanwar Singh he had a perfect right and title to do so under the provisions of the Hindu Succession Act, 1956 which had come only one day prior to the execution of the will. The fact that previously according to the conditions of the Wazib-ul-Arz or the provisions of the Bharatpur State Revenue Code the deceased had no such right could foe absolutely irrelevant in the changed context as the matter would be governed by the Hindu Succession Act, 1956. The village Panchayat if it had referred to the provisions of the Act would have been justified in arriving at the decision at which it did and as it had omitted to do so and it based its reasoning on entirely untenable grounds the learned Additional Collector was justified in reversing the same. It is obvious that if the learned Additional Collector had cared to examine the provisions of the aforesaid Act, he would have come to the same conclusion on which the village Panchayat had arrived though for entirely different reasons. There has thus been a grave illegality in the exercise of jurisdiction by the subordinate court. We therefore, allow this revision, set aside the order of the lower appellate court and restore that of the village Panchayat insofar as it relates to the sanction of mutation of the deceased Sanwat Singh in favour of the applicant Bhanwar Singh. .;