IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No.51 of 2025 (In the matter of an application under Article 226 and 227 of the Constitution of India)

Prasanta Biswanath @ Prasanta …. Petitioner Kumar Biswanath -versus-

The State of Odisha, represented …. Opposite Parties through its Collector, Rayagada and another Appeared in this case:-

For Petitioner : Mr. Budhiram Das, Advocate For Respondents : Ms. Babita Kumari Sahu, Learned Additional Government Advocate Appeared in this case:-

CORAM:

JUSTICE A.C. BEHERA

JUDGMENT

Date of hearing : 20.01.2025 / date of judgment : 31.01.2025 A.C. Behera, J. This writ petition under Articles 226 and 227 of the Constitution of India, 1950 has been filed by the petitioner praying for setting aside an order dated 25.10.2024 (Annexure-3) passed in Mutation Case No.410 of

2024 by the Tahasildar, Bisamkatak (Opposite Party No.2).

2. The factual backgrounds of this writ petition, which prompted the petitioner for filing of the same is that, one Ghasiani Biswanath, recorded owner of Plot No.75/1/124 Ac.2.800 decimals under Khata No.5/40 in Mouza-Malidhepaguda under Bisamkatak Tahasil in the district of Rayagada bequeathed the properties of said Plot No.75/1/124 in favour of her son, i.e., petitioner executing and registering a Will vide Will No.174 dated 28.02.2008.

When the said Testator of the aforesaid Will, i.e., Ghasiani Biswanath died on dated 20.11.2009, then, the petitioner possessed the aforesaid bequeathed properties and filed a mutation case vide Mutation Case No.410 of 2024 before the Tahasildar, Bisamkatak(Opposite Party No.2) for the mutation of the said properties to his name on the basis of that registered Will No.174 dated 28.02.2008.

As per the order dated 25.10.2024(Annexure-3), the Tahasildar, Bisamkatak(Opposite Party No.2) dropped that Mutation Case No.410 of

2024 filed by the petitioner assigning reasons that, “as per Indian Succession Act, 1925, a Will either registered or unregistered will have evidentiary value only after its adjudication by the court of law and The Tahasildar court is only the executing court, not the court of law as defined in Indian Succession Act, 1925. Hence, the mutation case filed by the petitioner is dropped with a request to the petitioner/applicant to file a declaratory suit seeking relief under Section 34 of the Specific Relief Act, 1963”, So, the petitioner challenged that (Annexure-3) passed by the Tahasildar, Bisamkatak (Opposite Party No.2) by filing this writ petition on the ground that, “When the properties covered under the Will No.174 dated

28.02.2008 executed in favour of the petitioner are situated in the district of Rayagada and the said Will has been executed in the District of Rayagada, which is outside the area specified in the Clauses of Section 57 of the Indian Succession Act, 1925 and when Rayagada District was under the ex-princely State, then, the question of probation of that Will does not arise. For which, The Tahasildar, Bisamkatak(Opposite Party No.2) should not have dropped the said mutation case as per Annexure-3”.

3. I have already heard from the learned counsel for the petitioner and learned Additional Government Advocate for the State(Opposite Parties).

4. It is the settled propositions of law that, when a Will in question is executed in the Districts, which were coming under the ex-princely State like Mayurbhanj, Bolangir, Koraput, Dhenkanal, Ganjam, Sundargarh, Sambalpur, Angul, Keonjhar, Rayagada, Jharsuguda, Malkanagiri and others, no probate of Will is necessary. In the said Districts, Revenue Authorities and Tahasildars can proceed with the mutation cases on the basis of un-probated Wills.

5. On this aspect, it has already been clarified by the Hon’ble Courts in the ratio of the decisions reported in (I) 1972(2) C.W.R.-1451, Amrutlal Majhi and others vrs.

Japi Sahuani and others. (II) AIR 1973 Orissa-112, Balaram Tripathy and another vrs. Lokanath Tripathy. (III) 48(1979) CLT-211 (Para-8), Mst. Radha Hota vrs. Dutika Satpathy