A will must be legally proved before names can be mutated in revenue records; the authority to adjudicate on its authenticity lies only with civil courts.

ORDER :

1. This petition under Article 226 of Constitution of India has been filed seeking the following reliefs:

“(i) To issue a writ in the nature of certiorari order dated 15/6/2021 (Annexure P/5) and 17/1/2024 (Annexure P/6) may kindly be quashed.

(ii) To issue a writ in the nature of mandamus Tehsildar may kindly be restrained to change the revenue entry on the basis of order passed by the Addl. Commissioner dated 17/1/2024.

(iii) Any other writ or direction as the Hon’ble Court may deem fit in the circumstances of the case.”

2. It is submitted by counsel for petitioners that as per the M.P. Bhu-Rajaswa Sanhita (Bhu-Abhilekhon main Namantaran) Niyam, 2018 (In short ‘Niyam 2018’) the name can be mutated in the revenue records on the basis of Will, therefore, revenue authorities are well within their rights to direct the mutation of names on the basis of Will.

3. Considered the submissions made by counsel for petitioners.

4. There is no doubt that a title can be acquired by virtue of Will and once the title can be acquired, then the name can also be mutated in the revenue records irrespective of fact as to whether there is any rule in that regard or not? Even otherwise as per Niyam, 2018, the names can be mutated on the basis of Will.

5. It is the case of petitioners that in case if somebody is aggrieved by Will, then he has to file a civil suit challenging the Will. The aforesaid submission made by counsel for petitioners cannot be accepted. If somebody wants to take advantage of a document, then first of all, he has to prove the same in accordance with law. Sections 67 and 68 of EVIDENCE ACT prescribe the requirements and nature of proof which must be satisfied by the parties, who rely on a document in the Court of law.

6. It is well established principle of law that party propounding a Will or otherwise making a claim under a Will is under obligation to prove the document. Unlike other documents, Will is a document which speaks from the death of testator and the testator, who has already migrated to the other world cannot appear and depose as to whether he has executed such document or not? The propounder is required to show by satisfactory evidence that Will was signed by testator, that testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of dispositions and had put his signature on the document of his own volition.

7. Furthermore, Will may be surrounded by suspicious circumstances and burden is on the propounder of the Will, not only to prove the document but to remove all the suspicious circumstances. The Supreme Court in the case of H. Venkatachala Iyengar v. B.N. Thimmajamma and others , AIR 1959 SC 443 has held as under:

“18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts