Orissa High Court
Unknown vs 4 09.12.2020 Due To Outbreak Of Covid-19 on 9 December, 2020
Author: K.R. Mohapatra
Bench: K.R. Mohapatra
W.P.(C) NO. 13557 OF 2020
04 09.12.2020 Due to outbreak of COVID-19, this matter is
taken up through Video Conferencing.
2. Heard Mr. Udgata, learned counsel for the
petitioners and Mr. Amitabh Pradhan, learned counsel
for the opp. party no. 4 and Mr. Swayambhu Mishra,
learned Addl. Standing Counsel for the State-opp.
parties 1 to 3.
3. The petitioners in this writ petition seek to assail
the order dated 03.09.2018 (Annexure-6) passed by the
Addl. Commissioner, Consolidation & Settlement,
Sambalpur in Consolidation Revision No. 589 of 2013,
whereby he allowed the revision filed by opp. party no. 4
under Section 37(1) of the O.C.H. & P.F.L. Act, 1972 (for
short 'Consolidation Act) and directed to record the land
pertaining to Hal Plot No. 184 to an extent of Ac.0.210
decimals and Hal Plot No. 282 to an extent of Ac.0.090
decimals corresponding to Hal Chaka Khata No. 161 in
mouza Naxapali in the district of Sambalpur (for short
'the case land') in favour of opposite party no. 4.
4. Mr. Udgata, learned counsel for the petitioners
submits that the case land was purchased jointly by
Nishamani Behera and his second wife, namely,
Gaisana Behera and the same was recorded in their
name under Hal Chaka Khata No. 161 under Section
13(1) of the Consolidation Act. Since the village was
published under Section 5(1) of the Consolidation Act,
R.O.R. in respect of the case land was published in their
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name under Section 13(4) of the Consolidation Act
under Annexure-1. Nishamani Behera died in the year,
1993 and Gaisana Behera died in the year, 2008. As
there was a de-notification of the village under Section
5(1) of the Consolidation Act, R.O.R. under Annexure-1
is deemed to have been published under Section 12-B of
the Orissa Survey and Settlement Act, 1958 (for short
'Settlement Act'). After their death, the legal heirs,
namely, the petitioners and opp. parties 5 & 6 as well as
the predecessor of opp. parties 7 to 10 filed Mutation
Case No. 559 of 2009 before the Tahasildar, Maneswar
for recording the case land in their name. Pursuant to
the order dated 27.05.2011 passed by the Tahasildar,
Maneswar under Annexure-2, the case land was
recorded in the name of the petitioners and opp. parties
5 & 6 as well as the predecessor of opp. parties 7 to 10
under Annexure-3. The opp. party no. 4 claiming to
have received the case land by virtue of a Registered
Will bearing No. 18 dated 23.03.1992 executed by said
Nishamani Behera claimed the case land to be recorded
in his name and filed Mutation Case No. 284 of 2012 for
recording the case land in his favour. The said
mutation case was dropped vide order dated 14.01.2013
holding that since the case land was recorded in the
name of Nishamani Behera and Gaisana Behera in a
consolidation operation, the mutation case would not be
maintainable. Thereafter, the opp. party no. 4 without
preferring any appeal against the said order filed a
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revision under Section 37(1) of the Consolidation Act.
The Addl. Commissioner, Consolidation & Settlement
treating the said revision to have been filed under
Section 15(b) of the Settlement Act entertained the same
and passed the impugned order under Annexure-6.
5. Mr. Udgata, learned counsel for the petitioners
raises various questions with regard to service of notice
on the petitioners as well as opp. parties 5 to 10,
interpolation in the date of the order and several
infirmities in the impugned order under Annexure-6.
He, however, mainly assails the impugned order on the
ground that the Addl. Commissioner, Consolidation &
Settlement could not have accepted the plea of the opp.
party no.4 on the basis of a registered Will stated to
have been executed by Nishamani in the year, 1992
submitting that at no cost the standard of proof of the
registered Will provided under Section 68 of the
Evidence Act, 1872 can be dispensed with, while
adjudicating the issue of entitlement of the beneficiary
on the basis of said Will. In support of his contention,
he relied upon the case law in the case of Jagdish
Chand Sharma -v- Narain Singh Saini (Dead)
through LRs and others, reported in AIR 2015 (SC)
2149, wherein it has been held as follows:
"15.2. These statutory provisions, thus, make it
incumbent for a document required by law to be
attested to have its execution proved by at least
one of the attesting witnesses, if alive, and is
subject to the process of Court conducting the
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proceedings involved and is capable of giving
evidence. This rigour is, however, eased in case
of a document also required to be attested but not
a Will, if the same has been registered in
accordance with the provisions of the Indian
Registration Act, 1908 unless the execution of this
document by the person said to have executed it
denies the same. In any view of the matter,
however, the relaxation extended by the proviso
is of no avail qua a Will. The proof of a Will to be
admissible in evidence with probative potential,
being a document required by law to be attested
by two witnesses, would necessarily need proof
of its execution through at least one of the
attesting witnesses, if alive, and subject to the
process of the Court concerned and is capable of
giving evidence.
xxx xxx xxx xxx
39. In Pentakota Satyanarayan and others (AIR
2005 SC 4362) (supra) the testator P. Mr. Ram
Murthi had admitted the execution of the Will
involved. He, however, expired while the suit was
pending. The Will was registered and the
signature of the testator was identified by two
witnesses whereupon the Sub-Registrar had
signed the document. In this textual premise, it
was held that the signatures of the registering
officer and of the identifying witnesses affixed to
the registration endorsement did amount to
sufficient attestation within the meaning of the
Act. It was held as well that the endorsement of
the Sub-Registrar that the executant had
acknowledged before him the execution, did also
amount to attestation. The facts revealed that the
Will was executed before the Sub-Registrar on
which the signature of the testator as well as
signature and the thumb impression of the
identifying witnesses were taken by the said
authority, whereafter the latter signed the deed.
In general terms, it was observed that registration
of the Will per se did not dispense with the need
of proving its execution and the attestation in the
manner as provided in Section 68 of the 1872 Act.
It was enunciated as well that execution
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consisted of signing a document, reading it over
and understanding and completion of all
formalities necessary for the validity of the act
involved.
xxx xxx xxx xxx
45. A Will as an instrument of testamentary
disposition of property being a legally
acknowledged mode of bequeathing a testator's
acquisitions during his lifetime, to be acted upon
only on his/her demise, it is no longer res integra,
that it carries with it an overwhelming element of
sanctity. As understandably, the testator/
testatrix, as the case may be, at the time of
testing the document for its validity, would not be
available, stringent requisites for the proof thereof
have been statutorily enjoined to rule out the
possibility of any manipulation. This is more so,
as many a times, the manner of dispensation is
in stark departure from the prescribed canons of
devolution of property to the heirs and legal
representatives of the deceased. The rigour of
Section 63 (c) of the Act and Section 68 of 1872
Act is thus befitting the underlying exigency to
secure against any self serving intervention
contrary to the last wishes of the executor."
He also relied upon the decision in the case of
Ramesh Verma (D) Thr. LRs. -v- Lajesh Saxena (D) by LRs
and another, reported in AIR 2017 SC 494, wherein it has
been held at paragraphs-14 and 15 as follows:
"14. In Savithri v. Karthyayani Amma reported as
(2007) 11 SCC 621 at page 629 : (AIR 2008 SC
300 at P. 303), this Court has held as under:-
"A Will like any other document is to be
proved in terms of the provisions of the
Succession Act and the Evidence Act. The onus of
proving the Will is on the propounder. The
testamentary capacity of the testator must also
be established. Execution of the Will by the
testator has to be proved. At least one attesting
witness is required to be examined for the
purpose of proving the execution of the Will. It is
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required to be shown that the Will has been
signed by the testator with his free will and that
at the relevant time he was in sound disposing
state of mind and understood the nature and
effect of the disposition. It is also required to be
established that he has signed the Will in the
presence of two witnesses who attested his
signature in his presence or in the presence of
each other. Only when there exists suspicious
circumstances, the onus would be on the
propounder to explain them to the satisfaction of
the Court before it can be accepted as genuine."
15. It is not necessary for us to delve at length
to the facts of the matter as also the evidence
adduced by the parties before the High Court.
Suffice it to note that the execution of the Wills
has to be proved in accordance with Section 68 of
the Indian Evidence Act."
He also relied upon the decision in the case of
Kunvarjeet Singh Khandpur -v- Kirandeep Kaur and
others, reported in AIR 2008 SC 2058, wherein it has
been held at paragraph-16 as follows:
"16. Similarly reference was made to a decision
of the Bombay High Court's case in Vasudev
Daulatram Sadarangani v Sajni Prem Lalwani
(AIR 1983 Bom 268). Para 16 reads as follows :
"16. Rejecting Mr. Dalapatrai's contention, I
summarise my conclusions thus :-
(a) under the Limitation Act no period is advisedly
prescribed within which an application for
probate, letters of administration or succession
certificate must be made;
(b) the assumption that under Article 137 the right
to apply necessarily accrues on the date of the
death of the deceased, is unwarranted;
(c) such an application is for the Court's
permission to perform a legal duty created by a
Will or for recognition as a testamentary trustee
and is a continuous right which can be exercised
any time after the death of the deceased, as long
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as the right to do so survives and the object of the
trust exists or any part of the trust, if created,
remains to be executed;
(d) the right to apply would accrue when it
becomes necessary to apply which may not
necessarily be within 3 years from the date of the
deceased's death.
(e) delay beyond 3 years after the deceased's
death would arouse suspicion and greater the
delay, greater would be the suspicion;
(f) such delay must be explained, but cannot be
equated with the absolute bar of limitation; and
(g) once execution and attestation are proved,
suspicion of delay no longer operates".
6. Mr. Udgata, learned counsel for the petitioners,
therefore, submits that the Addl. Commissioner,
Consolidation & Settlement while exercising power
under Section 15(b) of the Settlement Act is devoid of
any jurisdiction to issue direction for correction of the
R.O.R. on the basis of a registered Will dispensing with
the standard and burden of proof provided under
Section 68 of the Evidence Act, 1872. Thus, the
impugned order suffers from fundamental errors.
Further, the Addl. Commissioner has taken into
consideration certain facts, which were neither pleaded
nor any material is available to that effect. In that
context, Mr. Udgata, learned counsel submits that the
Addl. Commissioner has observed that the opp. party
no. 4, namely, Sagar Kumar Behera, was taking care of
Nishamani during his life time, but referring to the
revision petition as at Annexure-5, he submits that no
such pleading is available in the revision petition. He,
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therefore, prays for setting aside the impugned order as
well as the R.O.R. pursuant to all the consequential
orders.
7. Mr. Pradhan, learned counsel for the opp. party
no. 4, vehemently opposed to the submission made by
Mr. Udgata, learned counsel for the petitioners and
submitted that the revisional court while exercising
power under Section 15(b) of the Settlement Act has
ample jurisdiction to direct for correction of the R.O.R.
on the basis of a registered Will. He further submits
that although notice was duly served on the petitioners
as well as opp. parties 5 to 10, they preferred not to
contest the revision and raise objection against the
prayer of the petitioners in the revision petition. There
is no material on record to show that any objection with
regard to genuineness of the Will has been raised before
the revisional court. Since the registered document was
filed in original before the revisional authority, he has
all power to take judicial notice of the same and pass
order with regard to correction of the R.O.R. Thus, the
revisional authority has committed no error in passing
the impugned order and directing to record the case
land in favour of opp. party no.4.
8. Heard learned counsel for the parties and
perused the materials available on record.
9. This Court without delving into the other issues
finds that the court or the authority while adjudicating
the flow of right of a person on the basis of a registered
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Will cannot dispense with the standard of proof as
required under Section 68 of the Evidence Act, 1872.
On perusal of the order sheet of the revisional authority
as at Annexure-6, it appears that no endeavour has
been made to record evidence with regard to the
genuineness of the registered Will in question. No
material to that effect has also been produced by the
opp. party no. 4 at the time of adjudication of the
revision. Further, it is not clear as to whether notices
on the petitioners and opp. parties 5 to 10 were served
before adjudication of the revision.
10. In that view of the matter, I am of the considered
view that the impugned order under Annexure-6 is not
sustainable in law. Accordingly, the impugned order
under Annexure-6 and the R.O.R. under Annexure-7
published pursuant to Annexure-6 are set aside and the
matter is remitted back to the revisional authority for
fresh adjudication giving opportunity of hearing to the
parties concerned. Since the opp. parties 5 to 10 have
not yet appeared, this Court is not in a position to fix
the date for their appearance before the revisional
authority. However, the petitioners and opp. party no. 4
undertake to appear before the revisional authority on
28.01.2021 and produce an authenticated copy of this
order before him to receive further instruction in the
matter.
11. With the aforesaid observation and direction, this
writ petition is disposed of.
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12. Authenticated copy of this order downloaded
from the website of this Court shall be treated at par
with certified copy in the manner prescribed in this
Court's Notice No.4587 dated 25.03.2020.
.................................
K.R. Mohapatra, J.
bks