Union of India (UOI) and Another vs Kashmiri Lal Maini

Mukul Mudgal, J.

C.M. No. 16717/2006 (delay)

For the reasons mentioned in the application, the application is allowed and the delay of 258 in filing the appeal is condoned.

The application stands disposed of.

LPA 2305/2006 & C.M. No. 16716/2006 (stay)

This appeal challenges the order of the learned Single Judge dated 4th January, 2006.

The issue involved in the present appeal relates to unearned increase sought to be levied by the Union of India (for short ''UOI'') on a transfer of property bequeathed by a father-in-law to a son-in-law by way of a Will. The relevant portions of the impugned judgment passed by the learned Single Judge holding against the UOI read as follows:

The same has been denied on the ground that the petitioner being outside the family of the recorded owner, transfer by and under the will attracts unearned increase and till the same is paid, transfer cannot be allowed.

Issue is squarely covered by the decision of the Hon''ble Supreme Court reported as Delhi Development Authority Vs. Mrs. Vijaya C. Gurshaney and Another, Their Lordships of the Supreme Court have held that where under a will property is bequeathed to a family member and on proof that the transfer is without consideration i.e., there is no inducement in the will and no money has flowed from the beneficiary under the will to the testator, property has to be mutated without charging unearned increase.

Petitioner is not a stranger to the recorded owner. He is the son-in-law of Munshi Ram Kapur. It cannot therefore be said that the will is, primafacie, tainted by consideration.

Writ petition accordingly stands disposed of with a direction to the respondent to consider the application filed by the petitioner on the basis of the will dated 2.7.1990 executed by Munshi Ram Kapur. Respondent would be permitted to hold an enquiry to ascertain whether any consideration passed between the petitioner and Munshi Ram Kapur during his life time. If it is found that the will is genuine and without any consideration, necessary mutation would be effected without charging any unearned increase. If it is found that the will is actually a sale and consideration passed between the petitioner and his father-in-law, respondent would be entitled to refuse mutation till unearned increase is paid.

We have noticed that the learned Single Judge has indeed given permission to the UOI to hold an enquiry to ascertain whether the Will was actually a sale and consideration passed between the petitioner and the father-in-law and in such a situation, the Appellants have been held entitled to refuse mutation till unearned increase was paid.

Mr. Sachdeva, learned Counsel appearing for the Appellants has submitted that since a permission for sale was earlier sought and later on a Will was propounded, suggests that the Will was manufactured to avoid payment of unearned increase.

In our view, paragraph-11 of the impugned judgment sufficiently protects the interest of the UOI, which have been sought to be espoused by the learned Counsel for the Appellant. Accordingly, we are satisfied that since the UOI has been given an opportunity to ascertain the motive and the bona fides of the transaction, the impugned judgment delivered by the learned Single Judge does not call for any interference by this Court.

The appeal and the pending C.M. No. 16716/2006 for stay are dismissed and stand disposed of accordingly.