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2021 DIGILAW 348 (MP)

Dilip Singh v. State of M. P.

2021-03-10

G.S.AHLUWALIA

body2021
ORDER 1. This miscellaneous petition under Article 227 of Constitution of India has been filed against the order dated 2.1.2021 passed by Additional Commissioner, Bhopal Division, Bhopal in Case No. 209/Appeal/2016-17, order dated 10.3.2017 passed by SDO, Vidisha, District Vidisha in Case No.76/Appeal/2015-16 and order dated 17.2.2016 passed by Tahsildar, Vidisha, District Vidisha in Case No.137/A-6/2014-15, by which the application filed by the petitioner for mutation of his name on the basis of ‘’Will’’ has been rejected. 2. The necessary facts for disposal of present petition in short are that Smt. Lalta Bai widow of Phool Singh Yadav was the owner of survey No.505 min area 0.044 hectare, survey No. 559, area 0.052 hectare and survey No.558, area 0.052 hectare, total area 0.148 hectare situated in Tahsil and District Vidisha. 3. It is the case of the petitioner that his mother was residing with him and she expired on 2.5.2015 and her last rites were performed by the petitioner as per Hindu rites and rituals. The mother of the petitioner, namely, Smt. Lalta Bai had executed a ‘’Will’’ by getting it notarized on 20.11.2011, according to which the above-mentioned property was bequeathed to the petitioner and on the basis of ‘’Will’’, the petitioner was entitled to get his name mutated in the revenue records. However, Tahsildar, Vidisha by order dated 17.2.2016 came to a conclusion that the petitioner has failed to prove the genuineness of ‘’Will’’ and further, the petitioner has siblings and in spite of the direction given by Tahsildar, the petitioner did not pay the process fee as a result of which, the notices to the siblings of petitioner could not be issued and, therefore, the application was also dismissed on the ground of non-joinder of necessary party. Accordingly, it was directed that names of all the legal representatives of Smt.Lalta Bai be recorded in the revenue records. 4. Being aggrieved by the order of Tahsildar, the petitioner preferred an appeal before the SDO, Vidisha which was dismissed by order dated 10.3.2017.The petitioner made further unsuccessful attempt by filing a second appeal before Additional Commissioner, Bhopal Division, Bhopal, which too was dismissed by order dated 2.1.2021. 5. 4. Being aggrieved by the order of Tahsildar, the petitioner preferred an appeal before the SDO, Vidisha which was dismissed by order dated 10.3.2017.The petitioner made further unsuccessful attempt by filing a second appeal before Additional Commissioner, Bhopal Division, Bhopal, which too was dismissed by order dated 2.1.2021. 5. Challenging the orders passed by the Courts below, it is submitted by the Counsel for the petitioner that it is true that the petitioner did not pay the Process Fee for service of notices on his siblings in spite of the direction given by Tahsildar, but since the petitioner had personally issued notices to his siblings, therefore, the non-payment of Process Fee will not be fatal to the claim of the petitioner. 6. Heard the learned Counsel for the petitioner. 7. Although the petitioner has claimed that he had issued the notices to his siblings but he has not filed any document to that effect. Therefore, the verbal submission made by the Counsel for the petitioner cannot be accepted 8. Further, when the Tahsildar had directed to pay Process Fee for service of notices on the siblings of the petitioner, then why the Process Fee was not paid, has not been explained by the petitioner. 9. Thus, the only logical conclusion which can be drawn is that the petitioner was intending that his siblings may not come to know about the proceedings and his sole intention was to somehow get his name mutated in the revenue records in a clandestine manner. 10. Be that as it may. 11. The Tahildar by the impugned order dated 17.2.2016, has directed for mutation of names of all the legal representatives of Late Lalta Bai. 12. It is the case of the petitioner that since Smt. Lalta Bai had executed a ‘’Will’’ in his favour, therefore, he is the owner of the property in question by virtue of ‘’Will’’. 13. The moot question for consideration is that as to whether the revenue authorities have any authority to adjudicate the question of genuineness of Will’’ or not ? 14. 13. The moot question for consideration is that as to whether the revenue authorities have any authority to adjudicate the question of genuineness of Will’’ or not ? 14. This Court in the case of Rameshwar v. Gendalal by order dated 5.11.2019 passed in W.P. No.22998/2019 has held as under :- ‘’(8) This Court in the case of Dharamveer Singh and Others v. Rushtum Singh and Others, by order dated 27.8.2019 passed in MP No. 3281 of 2019 has held as under :- ‘’The Punjab and Haryana High Court in the case of Rajinder Singh And Another v. Financial Commissioner 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. Heard the Learned Counsel for the parties. A similar view has been taken by a Coordinate Bench of this Court by order dated 6.4.2017 passed in Writ Petition No.1820 of 2011 (Akshay Kumar v. Smt. Ramrati Pandey and Ors.). Thus, it is held that the Revenue Courts have no jurisdiction to decide the rights of any party on the basis of ‘’Will’’ and if somebody wants to claim his/her title over any property, then he/she has to seek declaration from the Civil Court of competent jurisdiction. Accordingly, this Court is of the considered opinion that the Additional Commissioner, Gwalior Division, Gwalior has committed material illegality by restoring back the order passed by Tahsildar, by which the names of the respondents were mutated on the basis of ‘’Will’’ executed by one Sughar Singh.’’ Accordingly, order dated 25.4.2019 passed by Additional Commissioner, Gwalior Division, Gwalior in Case No.176/2017-18/ Appeal is hereby set aside, and the order passed by SDO, Gwalior City, District Gwalior in Case No.23/2016-17/Appeal is hereby restored. The application filed by the respondents under section 109 and 110 of MP Land Revenue Code is hereby rejected. The respondents are granted liberty that if they so desire, then they can seek declaration from the Civil Court of Competent jurisdiction. With aforesaid observations, this petition is allowed. ‘’ (9) A similar view has been taken by this Court in the case of Kalyan Singh vs. Gangotri Bai and Another, by order dated 21.8.2019 passed in MP No.3460 of 2019. With aforesaid observations, this petition is allowed. ‘’ (9) A similar view has been taken by this Court in the case of Kalyan Singh vs. Gangotri Bai and Another, by order dated 21.8.2019 passed in MP 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 ? 15. Thus, it is well-established principle of law that the revenue authorities have no jurisdiction to decide the genuineness of the ‘’Will’’. 16. Accordingly, this petition is dismissed with liberty to the petitioner that if so advised, then he can file a civil suit before the Civil Court for establishment of his title on the strength of ‘’Will’’.