Madhya Pradesh High Court
Vinod Singh vs Devendra Singh on 8 April, 2021
Equivalent citations: AIRONLINE 2021 MP 298
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 THE HIGH COURT OF MADHYA PRADESH
MP No.1305/2021
Vinod Singh Vs. Devendra Singh and others
Heard Through Video Conferencing
Gwalior, Dated:8/04/2021
Shri Prakash Braru, Advocate for petitioner.
This miscellaneous petition under Article 227 of the
Constitution of India has been filed against the order dated
06/03/2021 passed by Additional Commissioner, Chambal Division,
Morena in Case No.0319/2019-20/Appeal, by which the appeal filed
by the respondents has been allowed and the mutation of the name of
the petitioner on the basis of ''Will'' has been set aside.
It is the case of the petitioner that one Premabai was having
1/3rd share in survey no.156, area 2.59 Are and survey no.158, area
2.44 Are situated in Village Shree Ka Pura, Tahsil Gormi, District
Bhind. The petitioner is the son of the real sister of the testator-
Premabai and she executed a registered ''Will'' on 25/03/2018. After
death of Premabai, he filed an application for mutation of his name
on the basis of the registered ''Will'', which was dismissed by
Tahsildar, Gormi, District Bhind by order dated 10/08/2018 and the
names of the respondents, Devendra Singh, Sirdar Bai, Lokendra
Singh and Bataso were directed to be mutated in the revenue records.
The petitioner thereafter preferred an appeal, which was registered as
Appeal No.131/2017-18/A.M., which was allowed by the SDO,
Mehgaon, District Bhind by order dated 18/2/2020 and on the basis
of the registered "Will", the name of the petitioner was directed to be
2 THE HIGH COURT OF MADHYA PRADESH
MP No.1305/2021
Vinod Singh Vs. Devendra Singh and others
mutated in the revenue records in respect of 1/3 rd share of the
testator-Premabai.
Being aggrieved by the order passed by the SDO, the
respondents preferred an appeal, which has been allowed by the
impugned order dated 6/3/2021 passed by the Additional
Commissioner, Chambal Division, Morena in case No.0319/2019-
20/Appeal.
Challenging the order passed by the Additional Commissioner,
it is submitted by the counsel for the petitioner that a "Will" is also a
mode of transfer of ownership and, therefore, the SDO did not
commit any mistake by mutating the name of the petitioner. However,
during the course of arguments it was fairly conceded by the counsel
for the petitioner that the petitioner has also filed a suit for
declaration of his title. In the said suit, an application under Order 39
Rule 1 and 2 CPC was filed by the respondents, which was allowed
by the trial court by order dated 27/8/2020 passed in Civil Suit
No.73/2018 and the petitioner has been restrained from alienating the
property in dispute. It is further conceded that being aggrieved by the
order dated 27/8/2020 passed by the trial court, the petitioner
preferred an appeal, which too has been dismissed by order dated
25/1/2020 passed by the Additional District Judge, Mehgaon, District
Bhind in MCA No.4/2020.
3 THE HIGH COURT OF MADHYA PRADESH
MP No.1305/2021
Vinod Singh Vs. Devendra Singh and others
Heard learned counsel for the petitioner.
The first question for consideration is:
"As to whether the revenue courts have
any competence to entertain an application for
mutation of the name of beneficiary on the basis
of a "Will" or not?"
This Court in the case of Smt. Ramkali vs. Banmali and
Another, by order dated 17/02/2021 passed in WP No.6695/2013 has
held as under:-
''5.................It is further submitted that this Court by
order dated 17/9/2019 passed in the case of Murari and
another Vs. State of M.P. and others in Writ Petition
No.19089/2019 had held that the revenue authorities have
no jurisdiction to test the correctness and genuineness of
the "Will", therefore, the names of the parties cannot be
mutated on the basis of a "Will" and they have a remedy to
approach the Civil Court for declaration of their title. The
said order passed by this Court was subject to challenge in
Writ Appeal No.1916/2019, which was dismissed by the
Division Bench of this Court by order dated 14/2/2020 in
the case of Murari and another Vs. State of M.P. and
others reported in 2020 (4) MPLJ 139.
*******
8. This Court by order dated 16/2/2021 passed in MP No.2692/2020 (Ranjit alias Bhaiyu Mohite vs. Smt. Nandita Singh and Ors.) has held as under:-
"(19) Section 31 of MPLR Code reads as under:-
"31. Conferral of Status of Courts on Board and ''Revenue Officers. - The Board or a Revenue Officer, while exercising power under this Code or any other enactment for the time being in force to enquire into or to decide any question arising for determination between the 4 THE HIGH COURT OF MADHYA PRADESH MP No.1305/2021 Vinod Singh Vs. Devendra Singh and others State Government and any person or between parties to any proceedings, shall be a Revenue Court."
(20) Thus, from the plain reading of the aforesaid Section, it is clear that the revenue authorities shall be treated as revenue court for the purposes of ''any proceedings between the parties''. The important question which involves in the interpretation of Section 31 of MPLR Code is as to whether the words ''any proceedings'' would include a question of title also or the proceedings are confined to the proceedings under the MPLR Code only.
(21) If an application under Section 110 of MPLR Code is filed for mutation of the name of all the legal heirs, then it would certainly be a proceeding under the MPLR Code because the question of title is not involved and all the legal heirs of the deceased/owner will be brought on record without any further adjudication but whether the adjudication of the title of the parties on the basis of a ''Will'' can be said to be a proceeding under the Act or not, is a moot question which requires consideration.
(22) Section 178 of MPLR Code reads as under:-
"178. Partition of holding. - (1) If in any holding, which has been assessed for purpose of agriculture under Section 59, there are more than one Bhumiswami any such Bhumiswami may apply to a Tahsildar for a partition of his share in the holding:
[Provided that if any question of title is raised the Tahsildar shall stay the proceeding before him for a period of three months to facilitate the institution of a civil suit for determination of the question of title.] [(1-A) If a civil suit is filed within the period specified in the proviso to sub-section (1), and stay order is obtained from the Civil Court, the Tahsildar shall stay his proceedings pending the decision of the civil court. If no civil suit is filed within the said period, he shall vacate the stay order and proceed to partition the holding in accordance with the entries in the record of rights.] 5 THE HIGH COURT OF MADHYA PRADESH MP No.1305/2021 Vinod Singh Vs. Devendra Singh and others (2) The Tahsildar, may, after hearing the co-tenure holders, divide the holding and apportion the assessment of the holding in accordance with the rules made under this Code.
[(3) x x x] [(4) x x x] [(5) x x x] Explanation I.-For purposes of this section any co-sharer of the holding of a Bhumiswami who has obtained a declaration of his title in such holding from a competent civil court shall be deemed to be a co-tenure holder of such holding.
Explanation II.-[ x x x]"
(23) Proviso to Section 178(1) of MPLR Code specifically provides that in a partition proceedings, if any question of title is raised by any of the parties, then the revenue authorities shall stay the proceedings for a period of three months in order to facilitate the parties for institution of a civil suit for determination of question of title. Proviso to Section 178(1) of MPLR Code makes it clear as noon day that question of determination of title is beyond jurisdiction of the revenue authorities, otherwise the Tahsildar was not required to stay the proceedings so that the party to the partition proceedings may institute a civil suit for determination of question of title. If the words "any proceedings" are read in the light of the proviso to Section 178(1) of MPLR Code, then it is clear that ''any proceedings'' would not include any proceeding involving the question of title of the parties. Whenever the question of title is raised or is involved, then the matter has to be adjudicated by the Civil Court and not by the revenue authorities.
(24) It is submitted by the counsel for the respondent No. 1 that since in the present case, a public notice was issued, but as nobody had raised any objection, therefore, in absence of any challenge to the ''Will'', the revenue authorities did not commit any mistake by mutating the name of respondent No. 1.
(25) Considered the submissions made by the counsel for the respondent No. 1.
(26) It is well-established principle of law that the 6 THE HIGH COURT OF MADHYA PRADESH MP No.1305/2021 Vinod Singh Vs. Devendra Singh and others burden is on the propounder of the ''Will'' to prove that the ''Will'' was executed in his favour by the testator.
Even if the ''Will'' is not challenged by anybody, but still the propounder of the ''Will'' has to discharge his burden and no decree can be passed even by the Civil Court merely on the ground that the respondents have chosen not to appear before it or have failed to file their written statement as provided under Order 8 Rule 10 CPC."
9. Further, the similar view which was taken by this Court on the earlier occasion has also been affirmed by the Division Bench of this Court in the Writ Appeal in the case of Murari (supra). Thus, it is clear that the revenue authorities have no jurisdiction to decide the correctness and genuineness of a "Will" and if the propounder of the "Will" wants to take advantage of the "Will", then he has to get his title declared from the Civil Court of competent jurisdiction.
10. It is next contended by the counsel for the petitioner that the "Will" purportedly executed by Shivcharanlal is a forged "Will".
11. So far as the contention of the counsel for the petitioner with regard to the nature of the "Will" is concerned, this writ petition has arisen out of a revenue proceeding and once this Court has held that the revenue authorities have no jurisdiction to adjudicate the correctness and genuineness of a "Will", then any observation on the genuineness of the "Will" would certainly prejudice the case of the respondents in case if they prefer a Civil Suit for declaration of their title. Even, after holding that the revenue authorities have no jurisdiction to mutate the names of respondents on the strength of a "Will", it is also not expected from this Court to make any observation on the genuineness and correctness of the "Will".'' Accordingly, it is held that the revenue courts have no jurisdiction to entertain an application for mutation of the name of beneficiary on the basis of a "Will" and if the beneficiary wants to take advantage of the "Will", then he has to get his title declared from 7 THE HIGH COURT OF MADHYA PRADESH MP No.1305/2021 Vinod Singh Vs. Devendra Singh and others the Civil Court of competent jurisdiction.
Under these circumstances, the Additional Commissioner, Chambal Division, Morena did not commit any mistake by setting aside the order of SDO and further by affirming the order of the Tahsildar, by which the names of the respondents, who are the legal heirs of the deceased-Premabai, were mutated in the revenue records.
It is clear that the petitioner has already filed a suit for declaration of his title. Accordingly, it is directed that the order dated 6/3/2021 passed by the Additional Commissioner, Chambal Division, Morena in case No.0319/2019-20/Appeal shall be subject to the final outcome of the civil suit, which is pending between the parties.
With aforesaid observations, the petition is dismissed.
(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2021.04.09 19:06:30 +05'30'