JUDGMENT Ashok Bhushan, J.
1. Heard Sri P. K. Mishra counsel for the petitioner.
2. By this writ petition, the petitioner has prayed for quashing the orders passed by respondent Nos. 1 and 2 dated 28th August, 2001 and 19th December, 2000 respectively.
3. The facts of the case as stated in the writ petition are ; it is stated that the writ petition arises of the mutation proceeding, Shiv Balak who was father of the petitioner died on 15th November. 1997. A report was made and the names of the petitioner and his brothers were mutated in the khatauni as sons of Shiv Balak, deceased and entry was made by revenue inspector, The proceedings for mutation under Section 34 of U.P. Land Revenue Act was initiated by the respondents claiming that their names should be mutated in place of Shiv Balak, deceased, on the basis of a registered Will dated 22nd February, 1997, executed by Shiv Balak, the deceased. The mutation proceedings filed by the respondents under Section 34 of the U.P. Land Revenue Act were allowed by Tahsildar vide his order dated 9th March, 1999. Against the aforesaid mutation order, an appeal was filed by the petitioner which was allowed by the Sub-Divisional Officer vide his order dated 24.1.2000. A revision was filed before the Additional Commissioner, Gorakhpur challenging the order dated 24.1.2000 of Sub-Divisional Officer. The revision was allowed by the Additional Commissioner setting aside the order of Sub-Divisional Officer. The matter was taken up before the Board of Revenue by the petitioner challenging the order of Additional Commissioner which revision has been rejected by the order dated 28th August, 2001. The writ petition has been filed challenging the order dated 28th August, 2001 of the Board of Revenue and the order dated 19th December, 2001 of Additional Commissioner.
4. After hearing the counsel for the petitioner and after perusing the record, it is clear that the present writ petition arises out of mutation proceedings under Section 34 of U.P. Land Revenue Act. Mutation proceedings under Section 34 of U.P. Land Revenue Act are summary proceedings. This Court has held in several cases that writ petitions under Article 226 of the Constitution of India cannot be entertained against orders passed in proceedings under Section 34 of U.P. Land Revenue Act since the mutation proceedings are summary proceedings and do not adjudicate the rights of the parties. It has been held by this Court in Rani Devi v. Board of Revenue. 1999 RD 633, that writ petition cannot be entertained against the orders passed in mutation proceedings under Section 34 of U.P. Land Revenue Act.
5. The counsel for the petitioner, Sri P. K. Mishra, submitted that Will which is claimed to be executed is not a transfer within Section 34 of U.P. Land Revenue Act, hence the entire proceeding was without jurisdiction and this writ petition can be entertained under Article 226 of the Constitution of India. Sri P. K. Mishra, counsel for the petitioner, in support of his submission has placed reliance on a Full Bench decision of Board of Revenue and several other authorities which are as under :
The other judgments relied by counsel for the petitioner have laid down that the transfer does not include Will. The submission of the counsel for the petitioner that Will is not a transfer is fully supported by the decision cited by him. The counsel for the petitioner's submission is thus correct that Will is not a mode of transfer. No one has any right to move an application under Section 34 of U.P. Land Revenue Act claiming that Will executed in his favour has transferred agricultural land and his name should be recorded. Will itself is not a transfer and till a person succeeds agricultural land on the basis of Will, he has no right to file an application under Section 34 of U.P. Land Revenue Act. Will is not a transfer but is a mode of succession. The Full Bench judgment of Board of Revenue relied by counsel for the petitioner has also held that Will is a mode of succession. The judgment in Pitam's case (supra) relied by counsel for the petitioner has also laid down that Will is not a transfer but a tenure holder was quite competent to direct through the Will that his nephews will succeed to his property in paragraph 4 of the aforesaid judgment which is extracted below :
"4. I have heard learned counsel for the parties on this point but I am satisfied that the view taken by the lower appellate court is correct. Will is not a transfer and there is no question of the mode of devolution. After the death of the last male holder, he has directed through the Will that his nephews will succeed to the property in preference to the daughter's sons. He was quite competent to make such a direction. In view of this decision nothing further has to be said, the properties in dispute will pass in view of the Will executed in favour of the plaintiff respondents to them."
7. Section 34 of the U.P. Land Revenue Act provides that every person obtaining possession of any land by succession or transfer shall report such succession or transfer to the Tahsildar. Section 34 of U.P. Land Revenue Act is quoted below for ready reference :
"34. Report of succession or transfer of possession.--(1) Every person obtaining possession of any land by succession or transfer (other than a succession or transfer which has already been recorded under Section 33-AO, shall report such succession to the Tahsildar of the Tahsil in which the land is situate."
8. Section 34 of U.P. Land Revenue Act uses two words, namely, "succession" and "transfer". From the authorities cited by the counsel for the petitioner, it is clear that Will is not a transfer. Thus, any person on the basis of Will cannot claim that by virtue of Will, the land has been transferred to him and his name should be mutated. Section 34 uses the word "succession" also. Will is a mode of succession. The word "succession" has been defined in P. Ramanatha Aiyar's Law Lexicon (2nd Edition) as :
"the word "succession" is a word of technical meaning, and refers to those who by descent or will take the property of a decedent. It is a word which clearly excludes those who take by deed, grant, gift or any form of purchase or contract."
9. The U.P. Zamindari Abolition and Land Reforms Act, Section 169, clearly contemplates that a Bhumidhar with transferable right may by Will bequeath his holdings or any part thereof. Section 171, U.P. Zamindari Abolition and Land Reforms Act provides general order of succession subject to provisions of Section 169 of U.P. Zamindari Abolition and Land Reforms Act. Thus, devolution of a land can take place both by Will or by order of succession as provided in U.P. Zamindari Abolition and Land Reforms Act, 1950. Thus, if a land devolves on a person by virtue of a Will, he succeeds that property and can very well report under Section 34 of U.P. Land Revenue Act although Will is not a transfer but it will be included in the word "succession". Of course on the basis of a Will, report can be made under Section 34 of U.P. Land Revenue Act when a person actually succeeds to the property, Will takes effect only after death of a person. Thus, if any person submits a report under Section 34 of U.P. Land Revenue Act on the basis of a Will of a person after his death, the said report will be covered by Section 34 of U.P. Land Revenue Act and has to be proceeded with. The provisions of Hindu Succession Act, 1956, as well as Indian Succession Act, 1925, provide succession by Will as one of the mode of succession. Section 30 of the Hindu Succession Act. 1956, provides for testamentary succession. Similarly part 6 of Indian Succession Act, 1925, Section 57, refers to testamentary succession by Will. Thus, although Will is not a transfer but Will is a mode of succession and a report submitted under Section 34 of U.P. Land Revenue Act basing claim of succession on the basis of Will is fully maintainable.
10. In the present case as stated in paragraph 4 of the writ petition, father of petitioner, Shiv Balak, died on 15.9.1997 and mutation order on the basis of Will executed by Shiv Balak, deceased, was passed on 9th March, 1999, i.e., after the death, hence the claim of the respondents was on the basis of succession by virtue of Will executed by Shiv Balak, deceased. Thus, the application of respondents was based on succession as contemplated under Section 34 of the U.P. Land Revenue Act. The application filed by the respondents for mutation was fully maintainable and the counsel for the petitioner is not right in his submission that Will not being a transfer, application was not maintainable under Section 34 of U.P. Land Revenue Act. It may be true that before a Will actually takes effect, no application for mutation under Section 34 of U.P. Land Revenue Act may be maintainable since the Will is not a transfer but an application for mutation is fully maintainable after Will takes effect since after taking effect of a Will, a person succeeds to the land of the deceased and the said succession is contemplated to be reported under Section 34 of the U.P. Land Revenue Act.
11. In view of the what has been stated above, the application filed by the respondents was maintainable. The present writ petition arising out of the summary proceeding of mutation under Section 34 of U.P. Land Revenue Act, cannot be entertained under Article 226 of the Constitution of India. The mutation proceedings do not adjudicate the rights of the parties and orders passed in the mutation are always subject to adjudication by the competent court.
12. In view of the above, the present writ petition cannot be entertained under Article 226 of the Constitution of India and is dismissed summarily.