Friday, 19 February 2021

Whether revenue authorities have jurisdiction to decide the issue of the genuineness of will during mutation proceeding?

                   If an application under Section 110 of MPLR

       Code is filed for mutation of the name of all the legal

       heirs, then it would certainly be a proceeding under the

       MPLR Code because the question of title is not

       involved and all the legal heirs of the deceased/owner

       will be brought on record without any further

       adjudication but whether the adjudication of the title of

       the parties on the basis of a ''Will'' can be said to be a

       proceeding under the Act or not, is a moot question

       which requires consideration.

      

      (26) It is well-established principle of law that the

      burden is on the propounder of the ''Will'' to prove that

      the ''Will'' was executed in his favour by the testator.

      Even if the ''Will'' is not challenged by anybody, but

      still the propounder of the ''Will'' has to discharge his

      burden and no decree can be passed even by the Civil

      Court merely on the ground that the respondents have

      chosen not to appear before it or have failed to file their

      written statement as provided under Order 8 Rule 10

      CPC.”


9.    Further, the similar view which was taken by this Court on the


earlier occasion has also been affirmed by the Division Bench of this


Court in the Writ Appeal in the case of Murari (supra). Thus, it is


clear that the revenue authorities have no jurisdiction to decide the


correctness and genuineness of a “Will” and if the propounder of the


“Will” wants to take advantage of the “Will”, then he has to get his


title declared from the Civil Court of competent jurisdiction.

       

            THE HIGH COURT OF MADHYA PRADESH

                    Writ Petition No.6695/2013

               Smt. Ramkali Vs. Banmali and another


Gwalior, Dated :17/02/2021


     


      This petition under Article 227 of the Constitution of India has


been filed against the order dated 8/8/2013 passed by Board of


Revenue in Revision No.1302-1/08, thereby affirming the order dated


29/9/2008 passed by Additional Commissioner, Gwalior Division,


Gwalior in case No.274/2006-07/Appeal, by which the name of the


respondents have been recorded in the revenue record on the basis of


a “Will”.


2.    The necessary facts for disposal of the present petition in short


are that the husband of the petitioner, namely, Shivchanranlal had one


half share in the agricultural land bearing survey nos.1031 area 0.81


hectare, 1033 area 0.15 hectare, 1040 area 0.72 hectare, 1084 area


0.76 hectare total area 2.44 hectare situated in village Saloni Bhitari,


Tahsil Bhander, District Datia. The husband of the petitioner died


issue-less on 17/5/2006 due to illness. The respondents filed an


application for mutation of their names on the basis of a “Will”


purportedly executed by Shivcharanlal. The petitioner submitted her


objection and claimed that she is the sole legal heir of deceased


Shivcharanlal being his legally wedded wife and after considering the


claim and objection of the parties, the Tahsildar by order dated


18/6/2007 passed in case No.43/05-06/A-6 rejected the application


filed by the respondents.


3.    Being aggrieved by the order of the Tahsildar, the respondents


preferred an appeal before the Court of SDO, Bhander, District Datia,


which too was dismissed by order dated 14/8/2007 passed in Appeal


No.57/06-07/Appeal.


4.    Being aggrieved by the order of the SDO, the respondents


preferred an appeal before the Additional Commissioner, Gwalior


Division, Gwalior, which was registered as Appeal No.274/2006-


07/Appeal, which was allowed after relying upon the so called “Will”


executed by Shivcharanlal and the names of the respondents were


directed to be mutated in the revenue records. Being aggrieved by the


order of the Additional Commissioner, Gwalior Division, Gwalior,


the petitioner preferred a revision before the Board of Revenue,


which was registered as Revision No.1302-1/08. However, the said


revision has been dismissed by the Board of Revenue by order dated


8/8/2013.


5.    Challenging     the   orders   passed   by    the   Additional


Commissioner, Gwalior Division, Gwalior as well as the Board of


Revenue, it is submitted by the counsel for the petitioner that the


respondents had moved an application under Section 110 of MP Land


Revenue Code (in short “the Code”) on the strength of a forged


“Will” of Shivcharanlal and, therefore, their names were wrongly


mutated in the revenue records. It is further submitted that this Court


by order dated 17/9/2019 passed in the case of Murari and another


Vs. State of M.P. and others in Writ Petition No.19089/2019 had


held that the revenue authorities have no jurisdiction to test the


correctness and genuineness of the “Will”, therefore, the names of the


parties cannot be mutated on the basis of a “Will” and they have a


remedy to approach the Civil Court for declaration of their title. The


said order passed by this Court was subject to challenge in Writ


Appeal No.1916/2019, which was dismissed by the Division Bench


of this Court by order dated 14/2/2020 in the case of Murari and


another Vs. State of M.P. and others reported in 2020 (4) MPLJ


139.


6.     Per contra, the counsel for the respondents has supported the


orders passed by the Additional Commissioner, Gwalior Division,


Gwalior as well as the Board of Revenue and submitted that under


Section 110 of the Code the names of those persons are required to be


mutated who have acquired their right in the property and since the


“Will” is also a mode of acquisition of right, therefore, the Additional


Commissioner, Gwalior Division, Gwalior as well as the Board of


Revenue did not commit any mistake by directing for mutation of the


names of respondents in the revenue records.


7.    Considered the submissions made by the counsel for the


parties.


8.    This Court by order dated 16/2/2021 passed in MP


No.2692/2020 (Ranjit alias Bhaiyu Mohite vs. Smt. Nandita Singh


and Ors.) has held as under:-


       “(19) Section 31 of MPLR Code reads as under:-

              "31. Conferral of Status of Courts on Board

              and ''Revenue Officers. - The Board or a

              Revenue Officer, while exercising power 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

              parties to any proceedings, shall be a Revenue

              Court."

       (20) Thus, from the plain reading of the aforesaid

       Section, it is clear that the revenue authorities shall be

       treated as revenue court for the purposes of ''any

       proceedings between the parties''. The important

       question which involves in the interpretation of Section

       31 of MPLR Code is as to whether the words ''any

       proceedings'' would include a question of title also or

       the proceedings are confined to the proceedings under

       the MPLR Code only.

       (21) If an application under Section 110 of MPLR

       Code is filed for mutation of the name of all the legal

       heirs, then it would certainly be a proceeding under the

       MPLR Code because the question of title is not

       involved and all the legal heirs of the deceased/owner

       will be brought on record without any further

       adjudication but whether the adjudication of the title of

       the parties on the basis of a ''Will'' can be said to be a

       proceeding under the Act or not, is a moot question

       which requires consideration.

       (22) Section 178 of MPLR Code 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.

       [(3) x x x]

       [(4) x x x]

       [(5) x x x]

       Explanation I.-For purposes of this section any

       co-sharer of the holding of a Bhumiswami who

       has obtained a declaration of his title in such

       holding from a competent civil court shall be

       deemed to be a co-tenure holder of such

       holding.

       Explanation II.-[ x x x]"

(23)     Proviso to Section 178(1) of MPLR Code

specifically provides that in a partition proceedings, if

any question of title is raised by any of the parties, then

the revenue authorities shall stay the proceedings for a

period of three months in order to facilitate the parties

for institution of a civil suit for determination of

question of title. Proviso to Section 178(1) of MPLR

Code makes it clear as noon day that question of

determination of title is beyond jurisdiction of the

revenue authorities, otherwise the Tahsildar was not

required to stay the proceedings so that the party to the

partition proceedings may institute a civil suit for

determination of question of title. If the words "any


      proceedings" are read in the light of the proviso to

      Section 178(1) of MPLR Code, then it is clear that ''any

      proceedings'' would not include any proceeding

      involving the question of title of the parties. Whenever

      the question of title is raised or is involved, then the

      matter has to be adjudicated by the Civil Court and not

      by the revenue authorities.

      (24) It is submitted by the counsel for the respondent

      No. 1 that since in the present case, a public notice was

      issued, but as nobody had raised any objection,

      therefore, in absence of any challenge to the ''Will'', the

      revenue authorities did not commit any mistake by

      mutating the name of respondent No. 1.

      (25) Considered the submissions made by the counsel

      for the respondent No. 1.

      (26) It is well-established principle of law that the

      burden is on the propounder of the ''Will'' to prove that

      the ''Will'' was executed in his favour by the testator.

      Even if the ''Will'' is not challenged by anybody, but

      still the propounder of the ''Will'' has to discharge his

      burden and no decree can be passed even by the Civil

      Court merely on the ground that the respondents have

      chosen not to appear before it or have failed to file their

      written statement as provided under Order 8 Rule 10

      CPC.”


9.    Further, the similar view which was taken by this Court on the


earlier occasion has also been affirmed by the Division Bench of this


Court in the Writ Appeal in the case of Murari (supra). Thus, it is


clear that the revenue authorities have no jurisdiction to decide the


correctness and genuineness of a “Will” and if the propounder of the


“Will” wants to take advantage of the “Will”, then he has to get his


title declared from the Civil Court of competent jurisdiction.


10.   It is next contended by the counsel for the petitioner that the


“Will” purportedly executed by Shivcharanlal is a forged “Will”.



    11.   So far as the contention of the counsel for the petitioner with


    regard to the nature of the “Will” is concerned, this writ petition has


    arisen out of a revenue proceeding and once this Court has held that


    the revenue authorities have no jurisdiction to adjudicate the


    correctness and genuineness of a “Will”, then any observation on the


    genuineness of the “Will” would certainly prejudice the case of the


    respondents in case if they prefer a Civil Suit for declaration of their


    title. Even, after holding that the revenue authorities have no


    jurisdiction to mutate the names of respondents on the strength of a


    “Will”, it is also not expected from this Court to make any


    observation on the genuineness and correctness of the “Will”.


    12.   Accordingly, the order dated 8/8/2013 passed by Board of


    Revenue and the order dated 29/9/2008 passed by Additional


    Commissioner, Gwalior Division, Gwalior are hereby set aside and


    the revenue authorities are directed to restore the names of the


    petitioner in the revenue records with immediate effect.


    13.   However, liberty is granted to respondents that if they so


    desire, then they may file a suit before the competent Court of civil


    jurisdiction for declaration of their title.


    14.   With aforesaid observations, the petition is finally disposed of.


                                                                     (G.S. Ahluwalia)

                                                                           Judge

Arun*

                                       ARUN KUMAR MISHRA

                                       2021.02.18 10:02:55 +05'30'

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