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2021 DIGILAW 158 (MP)

Kusum Bai v. Ummedi Bai

2021-02-16

VISHAL MISHRA

body2021
JUDGMENT : Vishal Mishra, J. With the consent of the learned counsel for the parties, the matter is finally heard. 1. The present petition is being filed under Article 227 of the Constitution of India being aggrieved by the order dated 29.10.2020 passed by the Additional Commissioner, Bhopal Division, Bhopal, whereby the appeal filed by the respondent against the order dated 7.2.2020 has been allowed. 2. It is alleged that with respect to the property in question as mentioned in para 5.1 of the petition the respondent has filed an application under sections 109 and 110 of M.P. Land Revenue Code before the Tahsildar seeking mutation of his name in the revenue records in place of her father Late Dharma on the basis of registered Will dated 3.10.2016 executed in her favour. Reply to the application was filed by the petitioner and there is a specific denial with respect to factum of execution of Will and specific objection was taken that the petitioners are daughters of Late Dharma, therefore, are having right and title over the property in question. They are entitled for equal share in the property and has opposed the mutation on the basis of so called Will. 3. The learned Tahsildar after recording the statements of the parties has passed the order dated 2.1.2020 in favour of the respondent. The petitioners have challenged the order passed by the Tahsildar by filing an appeal before the S.D.O.. The learned S.D.O. has allowed the appeal and set aside the order passed by the Tahsildar vide its order dated 7.2.2020 holding that the Will which have been produced by the respondent is doubtful because when there are four daughter of Dharma then why Dharma has executed a Will in favour of the respondent only. The Will was treated as a suspicious document. The second appeal was preferred before the Additional Commissioner, Bhopal Division Bhopal by the respondent challenging the order passed by the Sub Divisional Officer on the ground that there is no right of the petitioners on the land which belongs to Dharma because he willingly executed the Will in her favour and given the land to her through registered Will. The second appeal was preferred before the Additional Commissioner, Bhopal Division Bhopal by the respondent challenging the order passed by the Sub Divisional Officer on the ground that there is no right of the petitioners on the land which belongs to Dharma because he willingly executed the Will in her favour and given the land to her through registered Will. It is argued that once the 'Will' on the basis of which mutation is sought is being put to challenge and denied by the other party then the Revenue Authority are having no jurisdiction to consider the genuineness of the Will. The jurisdiction rise with the civil court. He has relied upon the judgment passed in the case of Avnish Kumar Vs. Satyaprakash, 2020 MPJR (1) SN 9 and has argued that in view of the law laid down in the aforesaid case and once the Will is being put to challenge the only recourse available to the respondent is to file a civil suit and get the Will decided by the Civil Courts. He has prayed for quashment of the order passed by the Additional Commissioner. 4. Per Contra counsel appearing for the respondent has supported the impugned judgment and stated that the Will in question is registered Will and the learned Tahsildar has recorded the statements of either parties as well as witness to the Will and thereafter he has arrived to the conclusion that the Will in question is genuine Will and accordingly he has directed for mutation of the name. So far as legal issues raised by the petitioner that the genuineness of the Will can only be decided by the Civil Court is concerned, it is argued that the aforesaid analogy has been followed by this Court in large number of cases following the judgment passed by the Punjab & Haryana High Court in the case of Rajinder Singh and another Vs. Financial Commissioner decided on 21st March, 2013 in Civil Writ Petition No. 3821/2011. Financial Commissioner decided on 21st March, 2013 in Civil Writ Petition No. 3821/2011. It is alleged that the aforesaid order was passed by the Punjab & Harayan High Court on the ground that there was no provision in the Land Revenue Code of Punjab & Haryana to get the Will tested by the Revenue Authorities whereas the M.P. Land Revenue Code applicable in Madhya Pradesh, the Tahsildar is having an authority to check the genuineness of all the documents on the basis of which the mutation are being sought. It is further argued that under section 31 of the M.P. Land Revenue Code, the Courts have been defined and Tahsildar has also considered to be quasi judicial Court and is having right to check the genuineness of the Will. In such circumstances the case law of Punjab & Haryana High Court is not applicable in the State of Madhya Pradesh as the State of Madhya Pradesh is having a different Land Revenue Code. It is further submitted that the Will on the basis of which the mutation is being done has not been put to challenge by the petitioner at any point of time. He has prayed for dismissal of the petition. 5. Heard the learned counsel for the parties and perused the record. 6. From perusal of the record, it is an admitted fact that the mutation is being sought on the basis of registered Will dated 3.10.2016. The Will in question was executed by Late father of the respondent who is also father of the petitioners. The genuineness of the Will has been put to challenge by the petitioners by filing reply to the application for mutation filed by the respondent, wherein they have denied the execution of Will. There is nothing on record to demonstrate the fact that why the Will has been executed in favour of only one daughter by Late Dharma when he was having four daughters. So far as the jurisdiction of Revenue Court is concerned to consider the genuineness of the Will the law is well settled. Recently in the case of Avnish Kumar (supra) this Court has held as under: "(13) Under these circumstances, this Court is of the considered opinion that in fact, it was the respondent who got his name mutated in the revenue record in a most clandestine manner. Recently in the case of Avnish Kumar (supra) this Court has held as under: "(13) Under these circumstances, this Court is of the considered opinion that in fact, it was the respondent who got his name mutated in the revenue record in a most clandestine manner. Since the revenue authorities have no jurisdiction to decide the question of mutation on the basis of Will, therefore, it is directed that in case, if the respondent is of the view that the Will was executed by Rasal Singh Yadav in his favour, then he can get his title established by filing a suit for declaration of his title on the basis of Will. Needless to mention here that if any suit is filed, then any observations made by the Tribunals below with regard to genuineness of Will would not be considered either in his favour or against any of the parties and the Civil Court shall decide the question of Will strictly in accordance with law. (14) Accordingly, the order dated 11/09/2019 passed by Additional Commissioner, Chambal Division, Morena in Case No. 0679/2017-18/Appeal, is hereby set aside. (15) With the aforesaid observation, this petition is finally disposed of." 7. The Division Bench of Punjab and Harayan High Court in the case of Jagjit Singh Vs. Divisional Commissioner while deciding C.W.P. No. 13799 of 2010 decided on 30.7.2012 has held as under: "..... it is apparent that Section 19 (3) of this Punjab Act lays down that the person summoned shall be bound to state the truth, but there is nothing in this Act to suggest that oath has also to be administered to give the mutation proceedings the sanctity of 'judicial proceedings' as defined in clause (m) of section 4 (1) of the Code. From the reading of Section 3 of the Evidence Act, the information or material placed before the revenue officer, whether in the form of word of mouth or in black and white, would be evidence only if that officer could be described as a 'Court' and that in mutation proceedings held by a Naib-Tehsildar, he acts in his administrative capacity of a 'Revenue Officer' and that the proceedings are not those of 'Revenue Court' within the meaning of section 195 (2) of the Code of Criminal Procedure. Section 36 of the Act deals with determination of disputes, empowers a Revenue Officer to conduct an inquiry, as he thinks fit, to determine the entry to be made. Sub-section (2) of Section 36 of the Act contemplates that if the Revenue Officer is unable to satisfy himself as to which of the parties thereto is in possession of any property to which the dispute relates, he shall ascertain by summary inquiry, who is the person best entitled to the property and shall by order direct that person be put in possession thereof. The inquiry contemplated is without oath and summary in nature. A revenue officer discharges administrative functions when he up dates the revenue record by sanction of the mutation as such revenue officer is only a book-keeper or a chronicler of events taking place from day-today." 8. The Coordinate Bench of this Court in similar situation in Avnish Kumar Vs. Satyaprakash (M.P. No. 5345/2019 decided on 29.11.2019) has considered the similar controversy and has finally held as under: "(9) A similar view has been taken by this Court in the case of Kalyan Singh Vs. Gangotri Bai and Another, by order dated 21/08/2019 passed in M.P. No. 3460 of 2019. (10) Thus, it is well-established principle of law that the revenue authorities have no jurisdiction to decide the genuineness of the ''Will'' and it is only for the Civil Court to decide that whether the ''Will'' was executed or not? (11) Thus, it is clear that it is well-established principle of law that the revenue authorities cannot mutate the name of the person on the basis of Will purportedly executed by the deceased-owner. Furthermore, in the present case, it appears that the respondent had moved an application for mutation of name by impleading only Rasal Singh Yadav as respondent. Thus, it is clear that a dead person was made as party to the proceedings. The Tahsildar also lost sight of the fact that how the application for mutation can be decided in a case where a dead person was made as a party and the legal representatives of the testator were not made as party. (12) It is conceded by the Counsel for the respondent that the respondent is the nephew of Rasal Singh Yadav, whereas the petitioner is the grandson of Rasal Singh Yadav. (12) It is conceded by the Counsel for the respondent that the respondent is the nephew of Rasal Singh Yadav, whereas the petitioner is the grandson of Rasal Singh Yadav. (13) Under these circumstances, this Court is of the considered opinion that in fact, it was the respondent who got his name mutated in the revenue record in a most clandestine manner. Since the revenue authorities have no jurisdiction to decide the question of mutation on the basis of Will, therefore, it is directed that in case, if the respondent is of the view that the Will was executed by Rasal Singh Yadav in his favour, then he can get his title established by filing a suit for declaration of his title on the basis of Will. Needless to mention here that if any suit is filed, then any observations made by the Tribunals below with regard to genuineness of Will would not be considered either in his favour or against any of the parties and the Civil Court shall decide the question of Will strictly in accordance with law." 9. The Hon'ble Supreme Court in the case of Niranjan Umeshchandra Joshi Vs. Mrudula Jyoti Rao, (2006) 13 SCC 433 has considered the mode and manner of the execution of Will of an unprivileged will and has held as under: "32. Section 63 of the Succession Act lays down the mode and manner of execution of an unprivileged will. Section 68 of the Evidence Act postulates the mode and manner of proof of execution of document which is required by law to be attested. It in unequivocal terms states that execution of will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the court and capable of giving evidence. A will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable. 33. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable. 33. The burden of proof that the will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. (See Madhukar Jayaraja Shetty.) Subject to above, proof of a will does not ordinarily differ from that of proving any other document. 34. There are several circumstances which would have been held to be described by this Court as suspicious circumstances: (i) when a doubt is created in regard to the condition of mind of the testator despite his signature on the will; (ii) when the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances; (iii) where propounder himself takes prominent part in the execution of will which confers on him substantial benefit. (See H.Venkatachala Iyengar V. B.N. Thimmajamma and Management Committee, T.K. Ghosh's Academy V. T.C. Palit.) 35. (See H.Venkatachala Iyengar V. B.N. Thimmajamma and Management Committee, T.K. Ghosh's Academy V. T.C. Palit.) 35. We may not delve deep into the decisions cited at the Bar as the question has recently been considered by this Court in B. Venkatamuni v. C.J. Ayodhya Ram Singh, wherein this Court has held that the court must satisfy its conscience as regards due execution of the will by the testator and the court would not refuse to probe deeper into the matter only because the signature of the propounder on the will is otherwise proved." In such circumstances the Will is to be proved by leading cogent evidence and the heavy burden is on the propounder of the Will. 10. It is also settled preposition of law that the mutation does not confer any title. It is only for the fiscal purpose or for making revenue entries to see and to find out that whose name has been entered into revenue records for the purpose of taxation etc. 11. Section 110 of M.P. Land Revenue Code is required to be seen which deals with the mutation of acquisition of right in land records. Section 110 of M.P. Land Revenue Code reads as under: "Section 110. Mutation of acquisition of right in land records.- (1) The Patwari or Nagar Sarvekshak or person authorised under section 109 shall enter into a register prescribed for the purpose every acquisition of right reported to him under section 109 or which comes to his notice from any other source. (2) The Patwari or Nagar Sarvekshak or person authorised, as the case may be, shall intimate to the Tahsildar, all reports regarding acquisition of right received by him under sub-section (1) in such manner and in such Form as may be prescribed, within thirty days of the receipt thereof by him. (2) The Patwari or Nagar Sarvekshak or person authorised, as the case may be, shall intimate to the Tahsildar, all reports regarding acquisition of right received by him under sub-section (1) in such manner and in such Form as may be prescribed, within thirty days of the receipt thereof by him. (3) On receipt of intimation under section 109 or on receipt of intimation of such acquisition of right from any other source, the Tahsildar shall within fifteen days,- (a) register the case in his Court; (b) issue a notice to all persons interested and to such other persons and authorities as may be prescribed, in such Form and manner as may be prescribed; and (c) display a notice relating to the proposed mutation on the notice board of his office, and publish it in the concerned village or sector in such manner as may be prescribed; (4) The Tahsildar shall, after affording reasonable opportunity of being heard to the persons interested and after making such further enquiry as he may deem necessary, pass orders relating to mutation within thirty days of registration of case, in case of undisputed matter, and within five months, in case of disputed matter, and make necessary entry in the village khasra or sector khasra, as the case may be, and in other land records. (5) The Tahsildar shall supply a certified copy of the order passed under sub-section (4) and updated land records free of cost to the parties within thirty days, in the manner prescribed and only thereafter close the case: Provided that if the required copies are not supplied within the period specified, the Tahsildar shall record the reasons and report to the Sub-Divisional Officer. (6) Notwithstanding anything contained in section 35, no case under this section shall be dismissed due to the absence of a party and shall be disposed of on merits. (7) All proceedings under this section shall be completed within two months in respect of undisputed case and within six months in respect of disputed case from the date of registration of the case. In case the proceedings are not disposed of within the specified period, the Tahsildar shall report the information of pending cases to the Collector in such Form and manner as may be prescribed.]" 12. In case the proceedings are not disposed of within the specified period, the Tahsildar shall report the information of pending cases to the Collector in such Form and manner as may be prescribed.]" 12. From the perusal of the aforesaid provisions it is apparently clear that the acquisition of right is a crucial important aspect which is required to be kept in mind while deciding the application under section 110 of M.P. Land Revenue Code. The Tahsil Court who has dealing with the application under section 110 of M.P. Land Revenue Code has no jurisdiction to deal with the rights and title of the property in question. The Tahsildar has no jurisdiction to consider and decide the genuineness of the Will. 13. Section 31 of the M.P. Land Revenue Code is also relevant which reads as under: "31. Conferral of status of Courts on Board and Revenue Officers. - The Board of a Revenue Officer, while exercising powers under this Code or any other enactment for the time being in force to enquire into or to decide any question arising for determination between the State Government and any person or between the parties to any proceedings shall be a Revenue Court." 14. From bare perusal of the aforesaid section it is clear that the revenue authority shall be treated as Revenue Courts for the purpose of any proceedings between the parties. They are not having any jurisdiction to decide the title between the property in question or further to be more precise to consider and decide the genuineness of the document like Will. 15. If Section 178 of the M.P. Land Revenue Code is further seen which deals with partition of the holdings which reads as under: "178. Partition of holding. They are not having any jurisdiction to decide the title between the property in question or further to be more precise to consider and decide the genuineness of the document like Will. 15. If Section 178 of the M.P. Land Revenue Code is further seen which deals with partition of the holdings which reads as under: "178. Partition of holding. - (1) If in any holding, which has been assessed for purpose of agriculture under Section 59, there are more than one bhumiswami any such bhumiswami may apply to a Tahsildar for a partition of his share in the holding: [Provided that if any question of title is raised the Tahsildar shall stay the proceeding before him for a period of three months to facilitate the institution of a civil suit for determination of the question of title.] [(1-A) If a civil suit is filed within the period specified in the proviso to sub-section (1), and stay order is obtained from the Civil Court, the Tahsildar shall stay his proceedings pending the decision of the Civil Court. If no civil suit is filed within the said period, he shall vacate the stay order and proceed to partition the holding in accordance with the entries in the record of rights.] (2) The Tahsildar, may, after hearing the co-tenure holders, divide the holding and apportion the assessment of the holding in accordance with the rules made under this Code." 16. From bare reading of the aforesaid section, it is seen that if a question of title is raised by any of the parties and if there is a dispute with respect to the documents on which on the basis of which the title is being claimed then the revenue courts shall stay the proceedings for a period of three months in order to facilitate the parties for institution of a civil suit for determining the question of title. The aforesaid section further makes it clear that the revenue Courts under the M.P. Land Revenue Code are not having any jurisdiction to decide the disputes with respect to the title of the property in question. The aforesaid section further makes it clear that the revenue Courts under the M.P. Land Revenue Code are not having any jurisdiction to decide the disputes with respect to the title of the property in question. In such facts and circumstances and looking to the law laid down by the Hon'ble Supreme Court with respect to the determination of genuineness of the Will and also the relevant provisions of M.P. Land Revenue Code with no hesitation it can be said that the revenue Courts are having no jurisdiction to determine the genuineness of the Will. It is only the Civil Courts who are having the right to consider and decide the genuineness of the Will. 17. In view of the aforesaid settled preposition of law the order passed by the Additional Commissioner setting aside the order of the Sub Divisional Officer is unsustainable and is hereby set aside. The respondent who is claiming the benefit of mutation on the basis of Will is at liberty to get the probate of the Will before the learned Civil Court as it is a settled law that person in whose favour the Will is executed has to get a probate from the concerning Civil Court. 18. Thus, from the overall analysis of the facts and circumstances of the case, no case is made out for interference in the order impugned. Petition sans merits and is hereby dismissed. E-copy/Certified copy as per rules/directions.