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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