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IN THE HIGH COURT OF MADHYA PRADESH
G.S. Ahluwalia, J.
Ranjit alias Bhaiyu Mohite v. Smt. Nandita Singh & Others
Miscellaneous Petition No. 2692 of 2020 (Gwalior); against the order Dated 10.6.2020 passed by the Additional Commissioner, Gwalior Division Gwalior in Case No. 109/18-19/Appeal;
Decided on 16.2.2021
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¼2½ Òw&jktLo lafgrk] 1959 ¼e-ç-½ && èkkjk 31] 110 rFkk 178 ¼1½] ijarqd && jktLo çkfèkdkjh && rkRi;Z && ^^i{kdkj¨a d¢ eè; d¨Ã dk;Zokfg;¨a^^ d¢ ç;¨tu¨a d¢ fy, og jktLo U;k;ky; gSa && 'kCn ^^d¨Ã dk;Zokfg;k¡^^ && gd dk ç'u Òh lfEefyr g¨xk ;k fQj dk;Zokfg;k¡ d¢oy lafgrk ds v/khu dk;Zokfg;¨a rd lhfer gSa && ;fn èkkjk 110 d¢ vèkhu vkosnu fofèkd okfjlksa }kjk çLrqr fd;k tkrk gS rks fuf'pr :i ls og dk;Zokgh lafgrk d¢ vèkhu g¨xh && ijarqd tgk¡ i{kdkj¨a d¢ gd dk U;k;fu.kZ;u foy ij vkèkkfjr gS && foy d¢ vkèkkj ij gd dk voèkkj.k jktLo çkfèkdkfj;¨a dh vfèkdkfjrk ls ijs gS && èkkjk 178 ¼1½ d¢ ijarqd dh n`f"V ls ^^d¨Ã dk;Zokfg;k¡^^ esa gd dk ç'u varoZfyr djus okyh d¨Ã dk;Zokgh lfEefyr ugÈ g¨xhA ¼iSjk 19 ls 24
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(1) Constitution of India -- Art. 227 -- scope of powers -- concurrent findings in respect of mutation based on Will -- authorities acted beyond their jurisdiction -- High Court Will have jurisdiction to set aside the orders passed by authorities while exercing power under Article 227. (2002) 1 SCC 319 referred to. [Para 11
(2) Land Revenue Code, 1959 (M.P.) -- Ss. 31, 110 and 178 (1), Proviso -- revenue authorities -- meaning of -- they are revenue Courts for purposes of ''any proceedings between parties'' -- word ''any proceedings'' -- would include question of title also or proceedings are confined to proceedings unde Code only -- if application under section 110 is filed by legal heirs then it would certainly be proceedings under Code -- but where there is adjudiciation of title of parties based on Will -- determination of title on basis of Will is beyond jurisdiction of revenue authorities -- in the light of proviso to section 178 (1), -- word ''any proceedings''
-- would not include any proceedings involving question of title. [Paras 19 to 24
(3) Land Revenue Code, 1959 (M.P.) -- S. 178 (1), Proviso -- partition proceedings -- question of title raised by any party -- partition proceedings should be stayed for three months to facilitate parties for institution of civil suit for determination of question of title -- determination question of title is beyond jurisdiction of revenue authorities. [Para 23
(4) Land Revenue Code, 1959 (M.P.) -- Ss. 109 and 110-- application for mutation -- based on Will -- question of adjudication of correctness and genuineness of Will -- is beyond competence and jurisdiction of revenue authorities. 2021 (1) RN 25 relied on. [Para 28 to 33
(5) Will -- burden of proof is upon propounder -- Will not challenged by anybody -- still propounder of Will has to discharge his burden. [Para 26
(6) Land Revenue Code, 1995 (M.P.) -- Ss. 44 and 47 -- time barred appeal -- application for condonation of delay rejected -- merits of case cannot be considered, unless and until delay is condoned -- after rejection of application for condonation of delay, it cannot be said that there was any appeal in eyes of law. [Para 29
(7) Limitation Act, 1963 -- S.5 -- time barred appeal -- application for condonation of delay rejected -- merits of case cannot be considered unless and until delay is condoned. [para 29
ORDER
1. Since the contesting party is the respondent No.1, therefore, the case is heard finally.
This miscellaneous petition under Article 227 of Constitution of India has been filed against the order dated 10.10.2002 passed by Tahsildar, Tahsil Gwalior in Case No.89/01-02/A-6, order dated 7.12.2018 passed by SDO, Lashkar, District Gwalior in Case No.68/2016-17/Appeal and order dated 10.6.2020 passed by Additional Commissioner, Gwalior Division, Gwalior in Case No. 109/18-19/Appeal.
2. The necessary facts for disposal of the present petition in short are that the respondent No.1 filed an application under section 110 of MPLR Code before the Tahsildar for mutation of her name on the basis of Will purportedly executed by Vijay Singh Rao Mohite, son of Late Shankar Rao Mohite, who was also known as ''Vijay Singh Rao Ghorpade'' in respect of Survey Nos.18, 19, 22, 23, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 162, 163, 164, 165, 166, 167, 168, 169, 173, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188 and 189, total area 49 bigha 6 biswa situated in Village Ghatampur, Tahsil and District Gwalior.
3. It is the case of the respondent No.1 that she was brought up by the testator when she was 10 years old and her marriage was also performed by the testator and out of love and affection, the testator had executed an unregistered ''Will'' on 4.4.2002. Although the order sheets of the Tahsildar, Tahsil Gwalior have not been placed on record, but it appears from the order dated 10.10.2002 passed by Tahsildar, Tahsil Gwalior (Annexure P3) that a public notice was issued but no objection was received from anybody. Accordingly, the respondent no.1 examined Aditya Patankar and Govinddas Bansal who are the attesting witnesses of the unregistered ''Will'' (Annexure P5). The statements of Patwari were also recorded by the Tahsildar, who stated that the above-mentioned survey numbers are recorded in the name of Vijay Singh Rao Mohite, in the Khasra Panchshala and accordingly, the Tahsildar, Tahsil Gwalior by order dated 10.10.2002 directed for mutation of the name of respondent no.1 on the basis of unregistered ''Will'' purportedly executed by Vijay Singh Rao Mohite.
4. Being aggrieved by the order of mutation, the petitioner preferred an appeal along with an application for condonation of delay which was registered as Case No.68/2016-17/Appeal. By the order dated 7.12.2018 passed by SDO, Lashkar, District Gwalior, the appeal filed by the petitioner was dismissed as barred by time as well as was also dismissed on merits.
5. Being aggrieved by the order passed by the SDO, Lashkar, District Gwalior, the petitioner preferred an appeal before the Additional Commissioner, Gwalior Division, Gwalior which was registered as Case No.109/2018-19/Appeal, which too has been dismissed after relying upon the unregistered ''Will'' relied upon by the respondent No.1.
6. Challenging the orders passed by the authorities below, it is submitted by the Counsel for the petitioner that the revenue authorities are not competent to adjudicate the correctness and genuineness of ''Will'' and thus, the mutation of the name of the respondent No.1 on the basis of ''Will'' was without jurisdiction. It is further submitted that even otherwise, it is well-established principle of law that the propounder of ''Will'' has to remove all suspicious circumstances which are attached to a ''Will'' and if the evidence led by the respondent No.1 is considered, then it is clear that none of the witnesses had stated that who had got the ''Will'' typed and whether the ''Will'' was got typed on the instructions of the testator and whether the ''Will'' was read over to the testator before signing the same or the testator had himself read that ''Will''. Even the scribe of the unregistered ''Will'' was not examined. Accordin
Jurisdiction of revenue authorities to adjudicate the correctness and genuineness of a 'Will' for mutation of name.
The Revenue Court has no jurisdiction to decide the genuineness of a Will, and only the Civil Court can determine the genuineness of a Will.
The main legal point established in the judgment is that revenue authorities have no jurisdiction to decide the correctness and genuineness of a 'Will' for the mutation of names in the revenue record....
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