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2019 DIGILAW 482 (MP)

Pehalvan Singh v. Sitaram

2019-07-04

VISHAL MISHRA

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ORDER 1. With consent, heard finally. 2. The present petition has been filed being aggrieved by the order dated 3.12.2015 passed by Board of Revenue, Gwalior, whereby, learned Board of Revenue has set aside the order dated 30.9.2011 passed in Appeal and has affirmed the order passed by the Sub Divisional Officer, Ashoknagar, dated 6.8.2009. 3. It has been argued by learned counsel for petitioner that property in dispute situated in Village, Masidpur, Tahsil, Ashoknagar, wherein Survey No. 488 area 0.470 Hectare and Survey No. 489 area 0.990 Hectare, total area 1.460 Hectare belongs to Khoob Singh S/o Ganesh Rama and after the death of Ganesh Ram, the respondent No. 1 filed an application for mutation before the Tahsildar on the basis of will dated 31.7.2008. The Tahsildar has rejected the application for mutation on the basis of will and entered the names of legal heirs of late Khoob Singh in the Revenue Records. 4. An appeal has been preferred against the order dated 31.7.2008 before the Sub Divisional Officer, Ashoknagar and the learned Sub- Divisional Officer, vide its order dated 6.8.2009 has allowed the appeal and order passed by the learned Tahsildar, Ashoknagr, was set aside and has directed for mutation of the name in pursuance of the will. An appeal was preferred against the order passed by the learned SDO, Ashoknagar which was filed before the Additional Commissioner Gwalior, Division Gwalior and the same was finally heard and decided vide order dated 30.9.2011 and order passed by the learned SDO dated 6.8.2009 was found to be illegal and accordingly, the same was set aside. The appeal was allowed, against the order passed by the Additional Commissioner, Gwalior dated 30.9.2011, a revision was preferred before the Board of Revenue, the learned Board of Revenue vide order dated 3.12.2015 has allowed the revision whereby, the order dated 30.9.2011 passed by the learned Additional Commissioner, Gwalior, Division Gwalior was set aside and order passed by the SDO, Ashoknagar, dated 6.8.2009 was affirmed. Being aggrieved by the same, a writ petition has been preferred. 5. Learned counsel for petitioner has argued that the Board of Revenue are having no jurisdiction to grant stamp of approval to thewill. The jurisdiction lies only with the Civil Courts. Being aggrieved by the same, a writ petition has been preferred. 5. Learned counsel for petitioner has argued that the Board of Revenue are having no jurisdiction to grant stamp of approval to thewill. The jurisdiction lies only with the Civil Courts. He has relied upon the judgment rendered by the Hon'ble apex Court in the case of Omprakash v. Govind, reported in 1990 JLJ 224 and Rampiari v. Bhagwant, reported in 1990(2) MPWN 141 and has prayed for quashment of the order passed by the Board of Revenue and the order passed by the Additional Commissioner, Gwalior. 6. Per contra, learned counsel for respondent/state as well as respondent No.1 have opposed the writ petition and has contended that the order passed by the Board of Revenue is just and proper does not call for any interference in the present petition. The learned Board of Revenue has rightly found the will to be genuine, therefore, he has directed for mutation of the name of the holders of the will. It is further contended that the will was got executed by the deceased Khoob Singh during his life time in favour of respondents and by virtue of the same, they have accrued the title of the property after the death of Khoob Singh. Thus, their names have rightly entered into in the Revenue Records. 7. Heard learned counsel for parties and perused the record. 8. An application was filed by the respondent No. 1 before the Tahsildar for mutation of his name in the Revenue Record on thebasis of a will, the case was rejected by the learned Tahsildar and publication was made and patwari report was called in the matter. The publication was made on 13.4.2007 and no objection was filed on the aforesaid publication, the statements of Sitaram and Naval Singh were recorded on 16.5.2007 and the aforesaid wittiness have verified the will dated 15.5.2006. On 24.5.2007 objections were filed by Pahalwan Singh and Mahendra Singh under section 110(3) of M.P. Land Revenue Code. No body appeared to press the objections, therefore, the application was rejected. On 12.6.2007 the document was received by the objectors and on 1.12.2007, the statements were recorded and cross examination was done. On 24.5.2007 objections were filed by Pahalwan Singh and Mahendra Singh under section 110(3) of M.P. Land Revenue Code. No body appeared to press the objections, therefore, the application was rejected. On 12.6.2007 the document was received by the objectors and on 1.12.2007, the statements were recorded and cross examination was done. The matter was finally heard and decided by the learned Tahsildar vide order dated 31.7.2008 and the learned Tahsildar has found that the property in question was an ancestral property and has refused for mutation in the revenue entries of on the basis of will. The appeal was preferred before learned SDO, and SDO has allowed the appeal and setting aside the order passed by the learned Tahsildar observing that the will was duly proved by witnesses, therefore, learned Tahsildar has committed an error in rejecting the application for mutation and accordingly, vide order dated 6.8.2009 has set aside the order passed by the Tahsildar and issued a directions for mutation on the basis of will. The aforesaid order was put to challenge before Additional Commissioner, Gwalior by filing an appeal and learned Additional Commissioner has considered the entire case and relying upon the orders passed in cases of Omprakash v. Govind (supra) and Rampiari v. Bhagwant, (supra) have arrived at a conclusion that the will in question is not found to be genuine on the basis of evidence available on the record, therefore, order passed by the learned Tahsildar was just and proper and learned SDO, Ashoknagar has committed an error in setting aside the order of Tahsildar, accordingly, the appeal was allowed. 9. Revision preferred before the Board of Revenue against the aforesaid order passed by the learned Commissioner, Gwalior Division Gwalior and Board of Revenue has observed that the though the Additional Commissioner, Gwalior has found the will is to be genuine on the basis of evidence, but has refused for mutation on the basis of so called will. The will is found to be proved by the witnesses by lending their evidence, therefore, once the will is being proved by tending witnesses, then there is no question for denying the mutation on the basis of the will and accordingly, setting aside the order passed by the Additional Commissioner, Gwalior and affirmed the order passed by the SDO dated 6.8.2009. 10. 10. It is a tried law that the genuineness of the will can only be examined by the civil Courts. The Board of Revenue/revenue Courts have no authority to decide the genuineness of the will. It is true that in case there is no objections filed before the Tahsildar, then, on the basis of will the mutation has been done but, once objections are filed regarding genuineness of the will, then revenue authorities have no right to check genuineness of the will and give its findings and thereafter, direct for recording the names in the revenue records. 11. The Punjab and Haryana High Court in the case of Rajinder Singh and another v. Financial Commissioner passed in W.P. No. 3821/2011 decided on 21.3.2013 which was followed by the coordinate Bench of this Court in the case of Akshay Kumar v. Smt. Ramrati Panday and ors. passed in W.P. No. 1820/2011 decided on 6.4.2017 has held as under : “Learned counsel for the petitioner submits that validity of Will can be determined in the Civil Court of competent jurisdiction and Revenue Courts have no authority of determination of the validity of the will so also the authority of the testator to execute a Will. The Punjab and Haryana High Court in the case of Rajinder Singh And Another v. Financial Comissioner as decided on 21st March, 2013 in Civil Writ Petition No. 3821/2011 has held that validity of will can be decided by the civil Court which has exclusive domain over such matter and this cannot be decided by the Revenue Courts. This proposition has not been disputed by the learned counsel for the respondents and therefore, in view of the settled position of law that validity of the Will can be tested only before the Court of competent civil jurisdiction and not before the revenue Court, the impugned order is set aside. Parties are relegated to the civil Court. They are free to get the claim decided on the basis of which revenue Court will carry out the proceedings of mutation as and when occasion arises.” 12. Considering the aforesaid and law laid down by the Hon'ble High Court the will can only be proved in appropriate proceedings by the civil Courts. 13. Thus, the order impugned passed by the Board of Revenue, Gwalior, as well as SDO order dated 6.8.2009 are found to be unsustainable. Considering the aforesaid and law laid down by the Hon'ble High Court the will can only be proved in appropriate proceedings by the civil Courts. 13. Thus, the order impugned passed by the Board of Revenue, Gwalior, as well as SDO order dated 6.8.2009 are found to be unsustainable. The impugned order dated 3.12.2015 is hereby set aside and order passed by the Tahsildar, Ashoknagar dated 31.7.2008 passed in Case No. 25 (Aa) 6/2006-07 and the Additional Commissioner, Gwalior, Division Gwalior dated 30.9.2011 passed in Case No. 486/2008-09 are hereby affirmed. 14. Writ petition is allowed to the extent as indicated above. 15. The parties are free to get the will proved by the civil Courts, have jurisdiction, as per law.