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2008 DIGILAW 208 (KAR)

Shanthinath v. Deputy Commissioner

2008-03-28

H.G.RAMESH

body2008
ORDER Huluvadi G. Ramesh, J 1. Petitioner has sought for quashing the order passed by the Deputy Commissioner on 14.1.2008 - annexure F, the order of the Assistant Commissioner dated 3.5.2005 - annexure E and also the order passed by the Tahsildar, Gulbarga on 27.1.2003 -annexure D. 2. According to the petitioner, in respect of property in Sy.No.99 measuring 32.03 acres situate at Melkunda Village of Gulbarga, one Indumathi W/o the petitioner was the owner. The said Indumathi Venkudre died on 20.9.2002. Subsequent to her death, petitioner being her husband as a Class I heir, applied for mutation in the prescribed format by producing the death certificate before the Tahsildaron 27.9.2002. However, the same was contested by the 4th respondent who objected for the mutation entry on the ground that the said Indumathi had executed a registered will in his favour on 9.9.2002 bequeathing the land in his favour. The petitioner denied the execution of the Will and contended that it was a forged and fabricated Will created by the 4th respondent. It is also stated that deceased Indumathi was not in a position to move about to execute the Will as she was totally bedridden. Accordingly, it is the case of the petitioner that the 3m respondent without properly inquiring, directed to make mutation entries based on the Will by order dated 27. 1.2003. Against the said order, appeal came to be preferred before the 2nd respondent under S.136(2) of the Karnataka Land Revenue Act. The appeal came to be dismissed. Being aggrieved by the said dismissal, petitioner preferred revised under S.136(3) of the Act before the Deputy Commissioner who in turn, has dismissed the revision. Hence, this petition. 3. Heard the counsel for the petitioner, counsel representing the contesting respondent and the Government Pleader. Petitioner's counsel, in support of her argument, has relied upon the decision in the case of RANI PURNIMA DEBI & ANR vs KMAR KHAGENDRA NARAYAN DEB & ANR to contend that If the genuineness of the Will is disputed, to dispel the same it is the burden on the propounder of the Will. Petitioner's counsel, in support of her argument, has relied upon the decision in the case of RANI PURNIMA DEBI & ANR vs KMAR KHAGENDRA NARAYAN DEB & ANR to contend that If the genuineness of the Will is disputed, to dispel the same it is the burden on the propounder of the Will. Though the Will was disputed by interested party before the Tahsildar, the Tahsildar has passed an order to change the entries in the mutation register and when the Will is disputed, though it is registered, it was for the party concerned or the propounder of the Will to get adjudication regarding genuineness of the Will by way of declaration before the Civil Court and the revenue authority has no right to rely upon such a Will. Accordingly, he submitted that the entries made in the mutation register based on the Will produced is bad in law. It is her further contention that it is for the propounder of the Will to prove the same before the Civil Court as to the authenticity of the Will and only on that basis the entries could have been made by the revenue authorities in the mutation register and not straight away when the Will was opposed and objected to. In support of her argument, learned counsel has relied upon the Full Bench decision of this Court in the case of MOHAMMEDJAFFAR &ANR vs STATE OF KARNATAKA & OTHER and also in the case of CNNAGENDRA SINGH vs SPL. DEPUTY COMMISSIONER, BANGALORE DISTRICT & OTHERS, Per contra, it is the argument of the counsel representing the respondent that there is no error as such committed by the revenue authorities in making entries in the mutation register based on the registered Will. The registered Will is the proof of its authenticity and rather, the burden is on the petitioner to disprove the Will that the Will is not duly executed. Accordingly, it is submitted that only on such proof by the petitioner that will is not duly executed and not valid, the revenue authorities could make further entries. 4. In C.N. Nagendra Singh's case, the Full bench of this Court is of the view that when the Revenue Court is prevented from recording the statement of the parties and the depositions, the question of establishing the genuineness of the Will would not arise. 4. In C.N. Nagendra Singh's case, the Full bench of this Court is of the view that when the Revenue Court is prevented from recording the statement of the parties and the depositions, the question of establishing the genuineness of the Will would not arise. Hence, the revenue courts have no jurisdiction to go into the genuiness of the Will or questions of title. 5. In Rani Poomima Debi's case, the Apex Court has held that if a Will has been registered that is a circumstance which may, having regard to the circumstances prove its genuineness. But the mere fact that the Will is registered will not by itself be sufficient to dispel all suspicions regarding it where suspicion exists without submitting evidence of registration to a close examination. 6. In the instant case, before making such an entry based on the registered Will before the revenue authorities, when the petitioner is said to have objected for such an entry, then necessarily pending entry, the revenue authorities should have sought for proof of the Will by an order of the Civil Court. Mere fact that there is registration of the will was not sufficient in the circumstances to make an entry in the revenue records when the same was disputed by the interested parties. In the absence of any such dispute, of course it was open to the revenue authorities to make an entry in the revenue records the name of the propounder either if it is a registered or unregistered Will. But once such objection was raised, the revenue authorities ought to have considered the said objection and as noted by the Division Bench as the revenue authorities could not hold an enquiry to record the statement of the parties as to the establishment of the genuineness of the Will, it would have asked the propounder of the Will to get a declaration from the Civil Court in the this regard and thereafter, it could have made an entry. Instead, in the instant case, when the petitioner claiming to be a Class I heir and that the testator of the Will was said to be bedridden at the relevant point of time, raised an objection, it was for the propounder of the Will to dispel the suspicious circumstance. Instead, in the instant case, when the petitioner claiming to be a Class I heir and that the testator of the Will was said to be bedridden at the relevant point of time, raised an objection, it was for the propounder of the Will to dispel the suspicious circumstance. As held by the Apex Court, the onus of proving the Will was on the propounder to explain to the satisfaction of the Court before the Will could be accepted as genuine. Even it has held that if the caveator alleged undue influence, fraud or coercion the onus would be on him to prove the same. However, in the instant case, when the execution of the Will is disputed, of course it is on the propounder of the Will to prove its genuineness and on the other hand when fraud or undue influence is alleged subsequently, it is for the caveator to prove the same. Accordingly, the initial burden is on the propounder of the Will to discharge his burden. 7. For the foregoing reasons, the impugned orders passed directing entries in the revenue records in the name of the respondent, of the present, is quashed. However, it is for the propounder respondent to prove due execution of the Will and thereafter, based on the same, he can very well approach the revenue authorities seeking for entries in the revenue records. Petition is accordingly allowed.