The validity of a Will can only be decided by the Civil Court, and the Revenue Court does not have the jurisdiction to decide the same.

JUDGMENT

Rajeev Kumar Shrivastava, J. - This writ appeal under Section 2(1) of Madhya Pradesh Uchcha Nyayalaya Ko Appeal Adhiniyam, 2005, has been filed against the order dated 28.8.2017 passed in Review Petition No. 956/2019, whereby the order dated 20.6.2019 passed in Misc. Petition No. 2072/2019 has been partly modified.

2. Brief facts of the case are that the concurrent orders were passed by the Additional Commissioner and Board of Revenue allowing the mutation of names of all legal representatives ignoring the registered Will. This Court vide order dated 20.6.2019 in Misc. Petition No. 2072/2019 relying on the judgment of Punjab and Haryana High Court passed in Civil Writ Petition No. 3821/2011 (Rajinder Singh & Anr. vs. Financial Commissioner), held that validity of the Will can be decided by the Civil Court which has exclusive domain over the matter and this issue cannot be decided by the Revenue Court and set aside the orders passed by the Additional Commissioner and Board of Revenue, against which, review petition was filed by the respondents. In Review Petition No. 956/2019, learned Single Judge vide order dated 22.8.2019 modified the order dated 20.6.2019 passed in Misc. Petition No. 2072/2019 in the following manner :-

"In view of above, the sentence "impugned orders dated 02/04/2019 (Annexure P/1) & 30/12/2017 (Annexure P/2) are set aside" mentioned in page No. 2, 3rd paragraph of order dated 20/06/2019 passed in M.P. No. 2072/2019 is hereby deleted. Rest of the order dated 20/06/2019 shall remain intact. However, parties are free to approach before appropriate forum for redressal of their grievances where the question of mutation on the basis of Will shall be decided in accordance with law.

With the aforesaid modification, the instant review petition stands disposed of."

3. Learned counsel for the appellant, who was petitioner in Misc. Petition No.2072/2019, attacks the impugned order dated 22.8.2019 on the ground that the order is passed against the scope of review and without issuing notices to other respondents. Once this Court has found that the validity of the will can be decided by the civil court and revenue authority has no right to decide the same, the orders passed by Additional Commissioner and Board of Revenue were rightly set aside. In the order dated 20.6.2019 passed in misc. petition, there was no error apparent on the face of the record. It has also been urged that if learned Single Judge was of the view that there were some mistakes in the order dated 20.6.2019 then the misc. petition should be directed to be heard afresh but this aspect has not been taken into consideration while passing the impugned order, therefore, prayed for setting aside the impugned order passed in review petition.

4. Heard learned counsel for the appellant and perused the record.

5. It is settled position of law that the ownership can only be decided by Civil Court. In the present case, the Additional Commissioner and Board of Revenue have confirmed the order of mutation passed on the basis of registered will.

6. From the aforesaid, it is crystal clear that the will is an instrument, which creates right in future and is required to be proved before the Civil Court as per law. Unless the will is proved, no right can be created.

7. The available record of the present case does not reveal that execution of will was properly proved. Therefore, only on the basis of will, order of mutation is against the provisions of law and the issue whether on the basis of will, rights are created or not, can only be decided by the Civil Court, with the help of evidence adduced before it, by examining the attesting witnesses. It is also held in Rajinder Singh and Another vs. Financial Commissioner (decided by Punjab & Haryana High Court in Writ Petition No. 3821/2011) that validity of will can be decided by the Civil Court, which is the exclusive domain of Civil Court and this cannot be decided by the Revenue Courts.

8. Therefore, in our cons