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2008 Supreme(Kar) 221
High Court of Karnataka
THE HONOURABLE MR. JUSTICE HULUVADI G. RAMESH
Shanthinath
Versus
Deputy Commissioner & Others
Writ Petition No. 1448 of 2008 (KLR)
Decided On : 28-03-2008
For the Petitioner:B.G. Namitha Mahesh, Advocate. For the Respondents:R1-R3, Nadiga Shivanandappa, GP, R4, Veeresh B. Patil, Advocate.
Headnote:INDIAN SUCCESSION ACT, 1925 - Sections 58 & 59: [H.V.G. Ramesh, J] Will - Suspicious Circumstance - Whether Khata could be changed into the name of the legatee under the Will - Held, No. Mere fact that Will is registered will not by itself be sufficient to dispel all suspicions regarding it where suspicion exists. In the present case, before making an entry based on the registered Will the revenue authorities should have sought for proof of the Will by an order of the Civil Court. Mere fact that there is registration of the Will is not sufficient in the circumstances to make an entry in the revenue records when the same was disputed by the interested parties. In the absence of any such dispute, of course it is open to the revenue authorities to make an entry in the revenue records in the name of the legatee either under the registered or unregistered Will. But once such objection was raised, the revenue authorities ought to have considered the said objection.
KARNATAKA LAND REVENUE ACT, 1964 - Section 128: [H.V.G. Ramesh, J] Mutation on the basis of Will - Whether Khata could be changed into the name of the legatee merely based on a Will - Held, No. Mere fact that Will is registered will not by itself be sufficient to dispel all suspicions regarding it where suspicion exists. In the present case, before making an entry based on the registered Will the revenue authorities should have sought for proof of the Will by an order of the Civil Court. Mere fact that there is registration of the Will is not sufficient in the circumstances to make an entry in the revenue records when the same was disputed by the interested parties. In the absence of any such dispute, of course it is open to the revenue authorities to make an entry in the revenue records in the name of the legatee either under the registered or unregistered Will. But once such objection was raised, the revenue authorities ought to have considered the said objection.
KARNATAKA MUNICIPAL CORPORATIONS ACT, 1976 - Section 114: [H.V.G. Ramesh, J] Change of Khatha - Whether Khatha could be changed into the name of the legatee merely based on a Will - Held, No. Mere fact that Will is registered will not by itself be sufficient to dispel all suspicions regarding it where suspicion exists. In the present case, before making an entry based on the registered Will the revenue authorities should have sought for proof of the Will by an order of the Civil Court. Mere fact that there is registration of the Will is not sufficient in the circumstances to make an entry in the revenue records when the same was disputed by the interested parties. In the absence of any such dispute, of course it is open to the revenue authorities to make an entry in the revenue records in the name of the legatee either under the registered or unregistered Will. But once such objection was raised, the revenue authorities ought to have considered the said objection.
KARNATAKA MUNICIPALITIES ACT, 1964 - Change of Khata: [H.V.G. Ramesh, J] Whether Khata could be changed into the name of the legatee merely based on a Will - Held, No. Mere fact that Will is registered will not by itself be sufficient to dispel all suspicions regarding it where suspicion exists. In the present case, before making an entry based on the registered Will the revenue authorities should have sought for proof of the Will by an order of the Civil Court. Mere fact that there is registration of the Will is not sufficient in the circumstances to make an entry in the revenue records when the same was disputed by the interested parties. In the absence of any such dispute, of course it is open to the revenue authorities to make an entry in the revenue records in the name of the legatee either under the registered or unregistered Will. But once such objection was raised, the revenue authorities ought to have considered the said objection.
Huluvadi G. Ramesh, J.
1. Petitioner has sought for quashing the order passed by the Deputy Commissioner on 14.1.2008 — annexure F, the order of the Assistant Commissioner dated 3.5.2005 — annexure E and also the order passed by the Tahsildar, Gulbarga on 27.1.2003 — annexure D.
2. According to the petitioner, in respect of property in Sy.No.99 measuring 32.03 acres situate at Melkunda Village of Gulbarga, one Indumathi W/o the petitioner was the owner. The said Indumathi Venkudre died on 20.9.2002. Subsequent to her death, petitioner being her husband as a Class I heir, applied for mutation in the prescribed format by producing the death certificate before the Tahsildar on 27.9.2002. However, the same was contested by the 4th respondent who objected for the mutation entry on the ground that the said Indumathi had executed a registered will in his favour on 9.9.2002 bequeathing the land in his favour. The petitioner denied the execution of the Will and contended that it was a forged and fabricated Will created by the 4th respondent. It is also stated that deceased Indumathi was not in a position to move about to execute the Will as she was totally bedridden. Accordingly, it is the case of the petitioner that the 3rd respondent without properly inquiring, directed to make mutation entries based on the Will by order dated 27.1.2003. Against the said order, appeal came to be preferred before the 2nd respondent under S.136(2) of the Karnataka Land Revenue Act. The appeal came to be dismissed. Being aggrieved by the said dismissal, petitioner preferred revised under S.136(3) of the Act before the Deputy Commissioner who in turn, has dismissed the revision. Hence, this petition.
3. Heard the counsel for the petitioner, counsel representing the contesting respondent and the Government Pleader.
Petitioner's counsel, in support of her argument, has relied upon the decision in the case of Rani Purnima Debi & Anr Vs Kmar Khagendra Narayandeb & Anr AIR 1962 SC 567 to contend that if the genuineness of the Will is disputed, to dispel the same it is the burden on the propounder of the Will. Though the Will was disputed by interested party before the Tahsildar, the Tahsildar has passed an order to change the entries in the mutation register and when the Will is disputed, though it is registered, it was for the party concerned or the propounder of the Will to get adjudication regarding genuineness of the Will by way of declaration before the Civil Court and the revenue authority has no right to rely upon such a Will. Accordingly, he submitted that the entries made in the mutation register based on the Will produced is bad in law. It is her further contention that it is for the propounder of the Will to prove the same before the Civil Court as to the authenticity of the Will and only on that basis the entries could have been made by the revenue authorities in the mutation register and not straight away when the Will was opposed and objected to. In support of her argument, learned counsel has relied upon the Full Bench decision of this Court in the case of Mohammed Jaffar & Anr Vs State Of Karnataka & Others 2003 (1) KLJ 337 and also in the case of C.N. Nagendra Singh Vs Spl. Deputy Commissioner, Bangalore District & Others ILR 2002 KAR 2750.
Per contra, it is the argument of the counsel representing the respondent that there is no error as such committed by the revenue authorities in making entries in the mutation register based on the registered Will. The registered Will is the proof of its authenticity and rather, the burden is on the petitioner to disprove the Will that the Will is not duly executed. Accordingly, it is submitted that only on such proof by the petitioner that will is not duly executed and not valid, the revenue authorities could make further entries.
4. In C.N. Nagendra Singh's case, the Full bench of this Court is of the view that when the Revenue Court is prevented from recording the statement of the parties and
