High Court expounds: Revenue Authorities have no jurisdiction to determine the genuineness of will

  

 

The Madhya Pradesh High Court recently comprising of a bench of Justice Vishal Mishra has held that a revenue authority does not have the power to determine the validity of a will while considering an application for mutation. (Rajkumar Sharma & Ors v. Manjesh Kumar)

Facts of the Case

The present petition was filed challenging the order passed by the Additional Commissioner, Gwalior Division, whereby the order passed by the Upper Collector, Datia and order passed by the Sub-Divisional Officer, Bhander, District Datia have been quashed thereby mutating the name of respondent in the Revenue Record.

On the death of one Balikdas, both the parties had applied for mutation, the petitioner based on hereditary succession and the respondent based on a will. The petitioner's application was allowed by the Sub Divisional Officer [SDO], recording their name.

The respondents assailed the said order before the Upper Collector, which was dismissed; the matter was then put before the Additional Commissioner. Assailing the earlier orders, the respondent submitted that as Balikdas was unmarried and the Will favored the respondent, their names should be mutated in the records. Opposing the said submission, the petitioner argued that as per Section 8(c) of the Hindu Succession Act, 1959, as Balikdas has no heir, the property shall devolve on the agnates, i.e., blood relations through the male ancestor.

Contention of the Parties

The counsel appearing for the petitioners, submitted that the learned SDO vide its order  has considered the aforesaid legal aspect and has passed the order of mutation on this basis and the same was affirmed by the learned Collector. While in the second appeal, the Additional Collector has failed to appreciate this legal aspect and has passed the impugned order has directed for mutation of name of the basis of will. It is submitted that once, the Will on the basis of which the mutation is sought, the same is objected, then no mutation can be done on the basis of Will. The Revenue Authorities are having no right to check the genuineness of the Will and mutate the name on the basis of Will in question, rather, it is the domain of Civil Courts. The person alleging has mutation on the basis of the Will if objected is required to get the genuineness of the Will checked by filing appropriate proceedings before the Civil Courts.

He even relied on the case of Kusum Bai and another Vs. Ummedi Bai (M.P. No.23/2021), wherein a detailed order has been passed and it is held that the Revenue Authorities are having no jurisdiction to get the mutation done on the basis of Will. He further relied upon the order passed by the Coordinate Bench of this Court in Avnish Kumar Vs. Satyaprakash (M.P. No. 5345/2019), wherein the similar controversy has been put to rest. In such circumstances, it is submitted that the order impugned is bad in law and prays for setting aside of the same

The counsel appearing for the respondents, opposed the arguments made by the petitioner stating that the order passed by the Authorities on the basis of the Will is well reasoned and justified order. In case, the Will in question was duly checked by the Authorities by getting their statements recorded. In case, petitioners want their names to be mutated on the basis of succession, then they are required to establish their succession under the Hindu Succession Act and mere entry in the Revenue Records, on the basis of Will, he will not have title over the property in question. They are required to get the title over the suit property in terms of the Sec. 8 of the Hindu Succession Act. He supported the impugned order and has argued that the same is well reasoned order and does not call for any interference in the present petition. He has prayed for dismissal of the same.

Courts Observation & Judgment

The court at the very outset referred to the decision in the case of Kusum Bai and another Vs. Ummedi Bai (M.P. No.23/2021), and noted that the Revenue Authorities have no jurisdiction of the Will.  

In Kusum Bai’s case, the Court had held that, "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."

The Court also referred to the apex court judgment in the case of Niranjan Umeshchandra Joshi Vs. Mrudula Jyoti Rao (2006), where it was held that, "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."

The bench noted that in the said case, the apex court held that in the case of proof of Will, a testator's signature alone would not prove the execution thereof if his mind may appear to be very feeble and debilitated. However, if a defense of fraud, coercion, or undue influence is raised, the burden would be on the caveator. Discussing the several circumstances that cause suspicion, it was concluded that proof of a will does not ordinarily differ from proving any other document.

The bench disposing off the petition remarked, “Considering the aforesaid, the order passed by the Authorities is bad in law, accordingly, the same is hereby quashed. It is also settled position that Will is to be proved by leading cogent evidence and the heavy burden is on the propounder of the Will. In such circumstances, the liberty is extended to respondent to get the Will checked by initiating the proceedings before the trial Courts. With the aforesaid observations, the petition is disposed off. No order as to costs.”

Read Judgment ;

 

SOURCE ' .latestlaws.com

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