Madhya Pradesh High Court
Brajesh Singh vs Smt. Neelam Singh on 20 August, 2024
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2024:MPHC-JBP:41372
JBP:41372
1 M.P. No.4547/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 20th OF AUGUST, 2024
MISCELLANEOUS
ELLANEOUS PETITION No. 4547 of 2024
BRAJESH SINGH
Versus
SMT. NEELAM SINGH AND OTHERS
Appearance:
Shri Siddharth Gulatee - Advocate for the petitioner.
ORDER
This petition under Article 227 of Constitution of India has been filed against the order dated 03.07.2024 passed by Additional Commissioner, Narmadapuram Division, Narmadapuram in case No.273/Appeal/2023 No.273/Appeal/2023-24.
2. It is submitted by counsel for petitioner that the Nazul land bearing plot No.14/3 and 14/4 admeasuring 1436 sq.ft. is the disputed land. One single story house consisting of two equal blocks has also been constructed over the said land. The said land was registered in the name of Mohan Singh, the brother of the petitioner. Since Mohan Singh was not keeping well, therefore, he executed a registered Will in favour of petitioner. The respondents filed an application before Nazul Officer under Section 109 and 110 of MPLR Code praying for mutation of their names in the disputed property. The respondent No.1 is the widow of Late Mohan Singh, whereas respondent No.2 is the daughter of Late Mohan Singh. The said application was allowed and the names of respondents No.1 and 2 were mutated in the revenue records. NEUTRAL CITATION NO. 2024:MPHC-JBP:41372 JBP:41372 2 M.P. No.4547/2024
3. Being aggrieved by order dated 31.08.2015 passed by Nazul Officer, the petitioner preferred an appeal before Additional Collector, Hoshangabad, who by order dated 08.01.2020 passed in Revenue Case No.8/Appeal/18-19 19 set aside the order passed by Nazul Officer and remanded the matter back. Thereafter, Thereafter the Nazul Officer by order dated 04.02.20222 passed in Revenue Case No.139-A/6/year A/6/year 2014 2014-15 directed for mutation of name of petitioner on the basis of Will.
4. It is submitted by counsel for petitioner that without assailing the order dated 04.02.2022 passed by Nazul Officer, Narmadapuram, the respondents No.1 and 2 preferred an appeal against order dated 08.01.2020 passed by Additional Collector, Hoshangabad alongwith an application filed under Section 5 of Limitation Act. It is submitted by counsel for petitioner that the Additional Commissioner has allowed the appeal eal without passing any order on application under Section 5 of Limitation Act. It is submitted by counsel for petitioner that although he has not filed the complete order sheets of the Court of Additional Commissioner, Narmadapuram Division Narmadapuram bbut he is in possession of certified copy of the same and provided to this Court for its perusal. It is submitted that on 05.03.2024, final arguments on appeal as well as on application under Section 5 of Limitation Act were heard. By impugned order dated 03.07.2024 03.07.2024 passed in case No.273/Appeal/2023 No.273/Appeal/2023-24, the Additional Commissioner, Narmadapuram Division Narmadapuram allowed the appeal and set aside the order dated 08.01.2020 passed by Additional Collector, Hoshangabad. It is submitted that there is no reference reference of application filed under Section 5 of Limitation Act and even the delay in filing the appeal has not been condoned. By relying upon the judgment passed by this Court in the NEUTRAL CITATION NO. 2024:MPHC-JBP:41372 JBP:41372 3 M.P. No.4547/2024 case of Tej Singh and Another Vs. Rameej Ulla Khan and others decided on 9th May, 2024 in W.P. No.8268/2017,, it is submitted that unless and until the application for condonation of delay is allowed and the delay in filing the appeal is condoned, it cannot be said that there was any appeal in the eye of law. Thus, it is submitted tthat order dated 03.07.2024 is liable to be quashed.
5. Heard the learned counsel for petitioner.
6. The petitioner is right in submitting that after the matter was remanded by order dated 08.01.2020, the Nazul Officer, Narmadapuram passed the final order on 04.02.2022 .02.2022 in Revenue Case No.139 No.139-A/6 Year 2014-15 15 thereby permitting the mutation of name of petitioner on the basis of so called Will executed by Mohan Singh. The order dated 04.02.2022 was not challenged. The counsel for petitioner is also correct in n submitting that unless and until the delay is condoned, it cannot be said that there is any appeal in the eye of law and therefore, the Additional Commissioner, Narmadapuram Division Narmadapuram should not have reversed the order dated 08.01.2020 passed by Additional Collector, Hoshangabad.
7. However, there is another aspect of the matter, which goes to the root of the jurisdiction of Nazul Officer to mutate the name of a beneficiary on the basis of Will.
8. The Supreme Court in the case of Jitendra Singh ingh v. State of Madhya Pradesh by order dated 06.09.2021 passed in SLP (civil) No.13146/2021 has held as under:
"6. Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137, this Court had an occasion to consider the effect of mutation and it is observed and held NEUTRAL CITATION NO. 2024:MPHC-JBP:41372 JBP:41372 4 M.P. No.4547/2024 that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. Similar view has been expressed in the series of decisions thereafter.
6.1 In the case of Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186, it is observed and held by this Court that an entry in revenue records does not confer title on a person whose name appears in record record-of- rights. Entries in the revenue records or jamabandi have only "fiscal purpose", i.e., jamabandi payment of land revenue, and no ownership is conferred on the basis of such entries. It is further observed that so far as the title of the property is concerned, it can only be decided by a competent civil court. Similar Similar view has been expressed in the cases of Suman Verma v. Union of India, (2004) 12 SCC 58; Faqruddin v. Tajuddin (2008) 8 SCC 12; Rajinder Singh v. State of J&K, (2008) 9 SCC 368; Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689; 689; T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259; and Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70."
9. This Court in the case cas of Anand Kumar Jain And Another Vs. Chandra Kumar Jain and Others passed in M.P. No.4458/2023 decided on 16th of February, 2024 has held as under:
"16. 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 NEUTRAL CITATION NO. 2024:MPHC-JBP:41372 JBP:41372 5 M.P. No.4547/2024 Niyam, 2018, the names can be mutated on the basis of Will.
17. It is the case of petitioner 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 applicant canno 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 relies on a document in the Court of law.
18. 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 document Will is a document which speaks 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, 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.
19. Furthermore, Will may be surrounded by suspicious icious 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 reported in 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 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 will or otherwise NEUTRAL CITATION NO. 2024:MPHC-JBP:41372 JBP:41372 6 M.P. No.4547/2024 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 and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a NEUTRAL CITATION NO. 2024:MPHC-JBP:41372 JBP:41372 7 M.P. No.4547/2024 will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing whatwhat it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, whenwhen it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed NEUTRAL CITATION NO. 2024:MPHC-JBP:41372 JBP:41372 8 M.P. No.4547/2024 testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
20. There may, however, be cases in which the execution of the will may be surrounded by suspicious suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of th the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may NEUTRAL CITATION NO. 2024:MPHC-JBP:41372 JBP:41372 9 M.P. No.4547/2024 otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharg discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any su such legitimate doubts in the matter.
21. Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution execution of the will and the propounder is required to remove the said suspicion by clear and NEUTRAL CITATION NO. 2024:MPHC-JBP:41372 JBP:41372 10 M.P. No.4547/2024 satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may satisfaction be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection objection to the use of the word "conscience" in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.
22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on applications wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and application broad principles would always depend upon the facts and circumstances of each NEUTRAL CITATION NO. 2024:MPHC-JBP:41372 JBP:41372 11 M.P. No.4547/2024 case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson [(1946)1946) 50 CWN 895] "where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity.
incredulity. He is never required to close his mind to the truth". It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect.
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29. According to the decisions
in Fulton v. Andrew [(1875) LR 7 HL 448] "those who take a benefit under a will, and have been instrumental in preparing or obtaining it, have thrown upon them the onus of showing the righteousness of the transaction".
transaction". "There is however no unyielding rule of law (especially where the ingredient of fraud enters into the case) that, when it has been proved that a testator, competent in mind, has had a will read over to him, and has thereupon executed it, all further enquiry is shut out". In this case, the Lord Chancellor, Lord Cairns, has cited with approval the well known well-known observations of Baron Parke in the case of Barry v. Butlin [(1838) 2 Moo PC 480, 482] . The two rules of law set out th the onus by Baron Parke are:"first, that probandi lies in every case upon the NEUTRAL CITATION NO. 2024:MPHC-JBP:41372 JBP:41372 12 M.P. No.4547/2024 party propounding a will; and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator"; "the second is, that, if a party writes or prepares a will under which he takes a prepares benefit, that is a circumstance that ought generally to excite the suspicion of the court and calls upon it to be vigilant and zealous in examining the evidence in support of the instrument in favour of which it ought not to to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased". It is hardly necessary to add that the statement of these two rules has now attained the status of a classic on the subject and it is cited by all text books on wills. The will propounded in this case was directed to be tried at the Assizes by the Court of Probate. It was tried on six issues. The first four issues referred to the sound and disposing state of the testator's mind and the fifth to his knowledge and approval of the contents of the will. The sixth was whether the testator knew and approved of the residuary clause; and by this last clause the propounders of the will were made the residuary legatees and were appointed executors. Evidence was led at the trial and the Judge asked the opinion of the jurors on every one of the issues. The jurors found in favour of the propounders on the first five issues and in favour of the opponents on the sixth. It appears that no leave to set aside the verdict and enter judgment for the propounders notwithstanding the verdict on the sixth issue was reserved; but when NEUTRAL CITATION NO. 2024:MPHC-JBP:41372 JBP:41372 13 M.P. No.4547/2024 the case came before the Court of Probate a rule was obtained to set aside the verdict generally and have a new trial or to set aside the verdict on the sixth issue for misdirection. It was in dealing with the merits of the finding on the sixth issue that the true legal position came to be considered by the House of Lords. The result of the decision was that th the rule obtained for a new trial was discharged, the order of the Court of Probate of the whole will was reversed and the matter was remitted to the Court of Probate to do what was right with regard to the qualified probate of the will.
30. The same principlele was emphasized by the Privy Council in Vellasawmy Servai v. Sivaraman Servai [(1929) LR 57 IA 96] where it was held that, where a will is propounded by the chief beneficiary under it, who has taken a leading part in giving instructions for its preparation and in procuring its preparation execution, probate should not be granted unless the evidence removes suspicion and clearly proves that the testator approved the will.
31. In Sarat Kumari Bibi v. Sakhi Chand [(1928) LR 56 IA 62] the Privy Council made it clear that "the principle which requires the propounder to remove suspicions from the mind of the Court is not confined only to cases where the propounder takes part in the execution of the will and receives benefit under it. There may be other suspicious circumstances attending on the execution circumstances of the will and even in such cases it is the NEUTRAL CITATION NO. 2024:MPHC-JBP:41372 JBP:41372 14 M.P. No.4547/2024 duty of the propounder to remove all clouds and satisfy the conscience of the court that the instrument propounded is the last will of the testator". This view is supported by the observations made by Lindley and Davey, L. JJ., in Tyrrell v. Painton [(1894) P 151, 157, 159].
159]. "The rule in Barry v. Butlin [(1838) 2 Moo PC 480, 482] , Fulton v. Andrew [(1875) LR 7 HL 448] and Brown v. Fisher [(1890) 63 LT 465] , said Lindley, L.J., "is not in my mind confined to the single case in which the will is prepared by or on the instructions of the person taking large benefits under it but extends to all cases in which circumstances exist which excite the suspicions of the court".
32. In Rash Mohini Dasi v. Umesh Chunder Biswas [(1898) LR 25 IA 109] it appeared that though the will was fairly simple and not very long the making of it was from first to last the doing of Khetter, the manager and trusted adviser of the alleged testator. No previous or independent intention of making a will was shown and the evidence that the testator understood the business in which his adviser engaged him was not sufficient to justify the grant of probate. In this case the application for probate made by the widow oof Mohim Chunder Biswas was opposed on the ground that the testator was not in a sound and disposing state of mind at the material time and he could not have understood the nature and effect of its contents. The will had been admitted to the probate by the District Judge but the High Court had reversed the said order. NEUTRAL CITATION NO. 2024:MPHC-JBP:41372 JBP:41372 15 M.P. No.4547/2024 In confirming the view of the High Court the Privy Council made the observations to which we have just referred.
33. The case of Shama Charn Kundu v. Khettromoni Dasi [(1899) ILR 27 Cal 522] on the other hand, was the case of a will the execution of which was held to be not surrounded by any suspicious circumstances. Shama Charn, the propounder of the will, claimed to be the adopted son of the testator. He and three others were appointed executors executors of the will. The testator left no natural son but two daughters and his widow. By his will the adopted son obtained substantial benefit. The probate of the will with the exception of the last paragraph was granted to Shama Charn by the trial Judge; but, on appeal the application for probate was dismissed by the High Court on the ground that the suspicions attending on the execution of the will had not been satisfactorily removed by Shama Charn. The matter was then taken before the Privy Council; and Thei Their Lordships held that, since the adoption of Shama Charn was proved, the fact that he took part in the execution of the will and obtained benefit under it cannot be regarded as a suspicious circumstance so as to attract the rule laid down by Lindl Lindley, L.J., in Tyrrell v. Painton [(1894) P 151, 157, 159] . In Bai Gungabai v. Bhugwandas Valji [(1905) ILR 29 Bom 530] the Privy Council had to deal with a will which was admitted to probate by the first court, but on appeal the order was varied by excluding therefrom therefrom certain passages which referred to the deed-poll deed poll executed NEUTRAL CITATION NO. 2024:MPHC-JBP:41372 JBP:41372 16 M.P. No.4547/2024 on the same day by the testator and to the remuneration of the solicitor who prepared the will and was appointed an executor and trustee thereof. The Privy Council held that "the onus was on the solicitor to satisfy the court that the passages omitted expressed the true will of the deceased and that the court should be diligent and zealous in examining the evidence in its support, but that on a consideration of the whole of the evidence (as to which which no rule of law prescribed the particular kind required) and of the circumstances of the case the onus was discharged". In dealing with the question as to whether the testator was aware that the passages excluded by the appeal court from the probate formed formed part of the instrument, the Privy Council examined the evidence bearing on the point and the probabilities. In conclusion Their Lordships differed from the view of the appeal court that there had been a complete failure of the proof that the deed deed-poll correctly represented the intentions of the testator or that he understood or approved of its contents and so they thought that there were no grounds for excluding from the probate the passages in the will which referred to that deed. They, however, observed observed that it would no doubt have been more prudent and business-like business like to have obtained the services of some independent witnesses who might have been trusted to see that the testator fully understood what he was doing and to have secured independent evidence that clause 26 in particular was called to the testator's attention. Even so, Their Lordships expressly added that in NEUTRAL CITATION NO. 2024:MPHC-JBP:41372 JBP:41372 17 M.P. No.4547/2024 coming to the conclusion which they had done they must not be understood as throwing the slightest doubt on the principles laid down in Fulton v. Andrew [(1875) LR 7 HL 448] and other similar cases referred to in the argument."
20. The Supreme Court in the case of Surendra Pal and others v. Dr. (Mrs.) Saraswati Arora and another,, reported in (1974) 2 SCC 600 has held that propounder has to show that the Will was signed by testator, that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free Will, that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. Furthermore, there may be cases in which the execution of the Will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testator is of feeble mind or is overawed by powerful minds interested in getting his property, or where in the light light of relevant circumstances the dispositions appears to be the unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the Will are not the result of testator's free Will and mind. It has also been held that in all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the Will is accepted and the onus is always on the propounder to explain them to the satisfaction of the Court before it co could be accepted as genuine.
21. The Supreme Court in the case of Gorantla Thataiah v. Thotakura Venkata Subbaiah and others,, reported in AIR 1968 SC 1332 has held as it NEUTRAL CITATION NO. 2024:MPHC-JBP:41372 JBP:41372 18 M.P. No.4547/2024 is for those who propound the Will to prove the same.
22. The Supreme Court in the case of Murthy others, reported and others v. C. Saradambal and others, in (2022) 3 SCC 209 has held that intention of testator to make testament must be proved, and propounder of Will must examine one or more attesting witnesses and remove remove all suspicious circumstances with regard to execution of Will. It has been held as under:
"31. One of the celebrated decisions of this Court on proof of a will, in H. Venkatachala Iyengar v. B.N. Thimmajamma [H. H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443] is in H. Venkatachala Iyengar v. B.N. Thimmajamma,, wherein this Court has clearly distinguished the nature of proof required for a testament as opposed to any other document. The relevant portion of the said judgment reads as under: (AIR p. 451, para 18) "18.. ... 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.
cuments. 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 ng under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the NEUTRAL CITATION NO. 2024:MPHC-JBP:41372 JBP:41372 19 M.P. No.4547/2024 handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party arty who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus, the questionn as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Didid he NEUTRAL CITATION NO. 2024:MPHC-JBP:41372 JBP:41372 20 M.P. No.4547/2024 put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to bee proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical athematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters."
32. In fact, the legal principles with regard to the proof of a will are no longer res integra. Section 63 of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872, are relevant in this regard. The propounder of the will must examine one or more attesting witnesses and the onus is placed on the propounder to remove all suspicious circumstances with regard to the execution execution of the will.
33. In the abovenoted case, this Court has stated that the following three aspects must be proved by a propounder:
Bharpur (Bharpur Singh case [Bharpur Bharpur Singh v. Shamsher Singh,, (2009) 3 SCC 687 : (2009) 1 SCC (Civ) 934] , SCC p. 696, para 16) "16. ... (i)) that the will was signed by the testator in a sound and disposing state of mind duly NEUTRAL CITATION NO. 2024:MPHC-JBP:41372 JBP:41372 21 M.P. No.4547/2024 understanding the nature and effect of disposition and he put his signature on the document of his own free will, and
(ii)) when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of propounder, and
(iii) if a will is challenged nged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion. In other words, the onus on the propounder can be taken to be discharged on proof of the essential ntial facts indicated therein."
34. In Jaswant Kaur v. Amrit Kaur [Jaswant Kaur v. Amrit Kaur Kaur, (1977) 1 SCC 369] , this Court pointed out that when a will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What generally is an adversarial proceeding, becomes in such cases, a matter of the the court's conscience and then, the true question which arises for consideration is, whether, the evidence let in by the propounder of the will is such as would satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such a satisfaction impossible unless the party which sets up the will offers cogent and convincing explanation NEUTRAL CITATION NO. 2024:MPHC-JBP:41372 JBP:41372 22 M.P. No.4547/2024 with regard to any suspicious circumstance surrounding the making of the will.
35. In Bharpur Singh v. Shamsher Singh [Bharpur Singh v. Shamsher msher Singh, (2009) 3 SCC 687 : (2009) 1 SCC Singh, (Civ) 934] , this Court has narrated a few suspicious circumstance, as being illustrative but not exhaustive, in the following manner: (SCC p. 699, para 23) "23.. Suspicious circumstances like the following may be found to be surrounded in the execution of the will:
(i)) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
(ii)) The condition of the testator's mind may be very feeble and debilitated at the relevant time.
(iii)) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.
(iv)) The dispositions may not appear to be the result of the testator's free will and mind.
(v)) The propounder takes a prominent part in the execution of the will.
(vi)) The testator used to sign blank papers.
(vii)) The will did not see the light of the day for long.
(viii)) Incorrect recitals of essential facts."
NEUTRAL CITATION NO. 2024:MPHC-JBP:41372 JBP:41372 23 M.P. No.4547/2024
36. It was further observed in Shamsher Singh case [Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687 : (2009) 1 SCC Singh, (Civ) 934] that the circumstances narrated hereinbefore are not exhaustive. Subject to offering of a reasonable explanation, existence thereof thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the will had been duly proved or not. It may be true that the will was a registered one, but the same by itself would not mean that the statutory requirements of proving the will need not be complied with.
37. In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao [Niranjan Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, (2006) 13 SCC 433] , in paras 34 to Rao, 37, this Court has observed as under:
(SCC pp. 447-48) "34.. There are several circumstances which would have been held to be described by this Court as suspicious circumstances:
(i)) when a doubt is created in regard to the condition of mind of the testator despite his signature on the will;
(ii) When the he disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;
(iii)) where propounder himself takes prominent part in the execution of will which confers on him substantial benefit.
***
35.. We may not delve deep into the decisions cited at the Bar as the question has recently been NEUTRAL CITATION NO. 2024:MPHC-JBP:41372 JBP:41372 24 M.P. No.4547/2024 considered by this Court in B. Venkatamuni v. C.J. Ayodhya Ram Singh [B. Venkatamuni v. C.J.
Ayodhya Ram Singh,, (2006) 13 SCC 449] , wherein this Court has held that hat the court must satisfy its conscience as regards due execution of the will by the testator and the court would not refuse to probe deeper into the matter only because the signature of the propounder on the will is otherwise proved.
36. The proof of a will ill is required not as a ground of reading the document but to afford the Judge reasonable assurance of it as being what it purports to be.
37. We may, however, hasten to add that there exists a distinction where suspicions are well founded and the cases where here there are only suspicions alone. Existence of suspicious circumstances alone may not be sufficient. The court may not start with a suspicion and it should not close its mind to find the truth. A resolute and impenetrable incredulity is not demanded from om the Judge even if there exist circumstances of grave suspicion."
38. This Court in Anil Kak v. Sharada Raje [Anil Kak v. Sharada Raje,, (2008) 7 (Bharpur SCC 695] , held as under: (Bharpur Singh case [Bharpur Singh v. Shamsher Singh (2009) 3 SCC 687 : (2009) 1 SCC Singh, CC (Civ) 934] , SCC p. 698, para 20) "20. This Court in Anil Kak v. Sharada Raje [Anil Anil NEUTRAL CITATION NO. 2024:MPHC-JBP:41372 JBP:41372 25 M.P. No.4547/2024 Kak v. Sharada Raje,, (2008) 7 SCC 695] opined that the court is required to adopt a rational approach and is furthermore required to satisfy its conscience as existence of suspicious circumstances plays an important role, holding: (SCC p. 714, paras 52-55) '52.. Whereas execution of any other document can be proved by proving the writings of the document or the contents of it as also the execution thereof, in the event there re exists suspicious circumstances the party seeking to obtain probate and/or letters of administration with a copy of the will annexed must also adduce evidence to the satisfaction of the court before it can be accepted as genuine.
53.. As an order grantin granting probate is a judgment in rem, the court must also satisfy its conscience before it passes an order.
54.. It may be true that deprivation of a due share by (sic to) the natural heir by itself may not be held to be a suspicious circumstance but it is one of the factors which is taken into consideration by the courts before granting probate of a will.
55.. Unlike other documents, even animus NEUTRAL CITATION NO. 2024:MPHC-JBP:41372 JBP:41372 26 M.P. No.4547/2024 attestandi is a necessary ingredient for proving the attestation.' "
39. Similarly, in Leela Rajagopal v. Kamala Menon Cocharan [Leela Rajagopal v. Kamala Menon Cocharan, Cocharan, (2014) 15 SCC 570 :
(2015) 4 SCC (Civ) 267] , this Court opined as under: (SCC p. 576, para 13) "13.. A will may have certain features and may have been executed in certain circumstances which may appear to be somewhat unnatural. Such unusual features appearing in a will or the unnatural circumstances surrounding its execution will definitely justify a close scrutiny before the same can be accepted. It is the overall assessment of the court on the basis of such scrutiny; the cumulative effect of the unusual features and circumstances which would weigh with the court in the determination required to be made by it. The judicial verdict, in the last resort, will be on the basis of a consideration of all the unusual usual features and suspicious circumstances put together and not on the impact of any single feature that may be found in a will or a singular circumstance that may appear from the process leading to its execution or registration. This, is the essence of the he repeated pronouncements made by this Court on the subject including the decisions referred to and relied upon before us."
NEUTRAL CITATION NO. 2024:MPHC-JBP:41372 JBP:41372 27 M.P. No.4547/2024
23. Similar law has been laid down by Supreme Court in the case of Dhanpat v. Sheo Ram (Deceased) through legal representatives and others,, reported in (2020) 16 SCC 209 and in the case of V. Kalyanaswamy (Dead) by legal representatives and another v. L. Bakthavatsalam (Dead) by legal representatives and others others, reported in (2021) 16 SCC 543.
24. The Supreme Court in the case of Bharp Bharpur Singh and others v. Shamsher Singh,Singh, reported in (2009) 3 SCC 687 has held that it may be true that Will was a registered one, but the same by itself would not mean that the statutory requirements of proving the Will need not be complied with. In terms off Section 63(c), Succession Act, 1925 and Section 68, Evidence Act, 1872, the propounder of a Will must prove its execution by examining one or more attesting witnesses and propounder of Will must prove that the Will was signed by the testator in a sound and and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free Will.
25. The Supreme Court in the case of Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao and others,, reported in (2006) 13 SCC 433 has held that mere proof that testator had signed the Will is not enough. It has also to be proved that testator has signed out of his free will having a sound disposition of mind and not a feeble and debilitated mind, understanding well the nature and effect thereof. The Court will also not refuse to probe deeper in the matter merely because propounder's signature on the Will is proved. Similar law has been laid down by Supreme Court in the cases of Savithri and others v. Karthyayani Amma and others,, reported in (2007) 11 SCC 621,621 Balathandayutham and another v. Ezhilarasan reported in (2010) 5 SCC 770 Ezhilarasan, 770, Pentakota Satyanarayana and others v. Pentakota Seetharatnam and others, reported in (2005) 8 SCC 67 and Meenakshiammal (Dead) through NEUTRAL CITATION NO. 2024:MPHC-JBP:41372 JBP:41372 28 M.P. No.4547/2024 legal gal representatives and others v.
another reported in (2005) 1 Chandrasekaran and another, SCC 280.
28026. Therefore, in order to take advantage of Will for getting his name mutated in the revenue records, beneficiary must prove that Will was a genuine one and must remove all suspicious circumstances which are attached to it by examining at least one of the attesting witnesses as well as by proving the mental status of testator, willingness of testator, understanding of testator etc. All these findings cannot be given give by revenue authorities.
27. The Supreme Court in the case of Jitendra Singh v. State of Madhya Pradesh by order dated 06.09.2021 passed in SLP (civil) No.13146/2021 has held as under:
"6. Right from 1997, the law is very clear. In the case of Balwant Balwant Singh v.
Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137, this Court had an occasion to consider the effect of mutation and it is observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. Similar view has been expressed in the series of decisions thereafter.
6.1 In the case of Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186, it is observed and held by this Court that an entry in revenue records does not confer title on a person whose name appears in record rights. Entries in the revenue record-of-rights.
records or jamabandi jamabandi have only "fiscal purpose", i.e., payment of land revenue, and no ownership is conferred on the basis of such entries. It is further observed that so far as the title of the NEUTRAL CITATION NO. 2024:MPHC-JBP:41372 JBP:41372 29 M.P. No.4547/2024 property is concerned, it can only be decided by a competent civil court. Similar view has been expressed in the Similar cases of Suman Verma v. Union of India, (2004) 12 SCC 58; Faqruddin v.
Tajuddin (2008) 8 SCC 12; Rajinder Singh v. State of J&K, (2008) 9 SCC 368; Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689; T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259; and Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70."
28. Counsel for applicant applicant also conceded that revenue authorities have no jurisdiction to decide the question of title but only contention is that since mutation can also be done on the basis of Will, therefore, the revenue authorities are well within their rights to mutate the the name of a person on the basis of Will. Unfortunately this general proposition of law which is being suggested by counsel for applicant cannot be accepted unless and until Will is duly proved, it cannot be acted upon and the revenue authorities have no jurisdiction jurisdiction to decide the authenticity, correctness, genuineness of a Will which can only be done by Civil Court. Thus, in the light of fact that revenue authorities cannot decide the genuineness of the Will, the rule which permits the mutation of name of a beneficiary on the basis of Will has to be interpreted that the name of a beneficiary can be mutated provided the Will is duly proved and for that purposes the beneficiary has to approach the Civil Court for declaration of his title. Even otherwise in none none of the previous judgments it has been held that in spite of a declaration by Civil Court the name of a beneficiary of a Will cannot be mutated. The word "Will" as mentioned in Rules, NEUTRAL CITATION NO. 2024:MPHC-JBP:41372 JBP:41372 30 M.P. No.4547/2024 2018 necessarily means a valid and genuine Will and not any piece of paper.
paper. Therefore, even in the light of Niyam, 2018 it cannot be said that there is any material change in the law.
29. It is submitted by counsel for petitioners that a Coordinate Bench of this Court by order dated 07.10.2023 passed in W.P.No.3499/2022 has already referred the question as to whether revenue authorities have a jurisdiction to mutate the names of the beneficiaries of a will or not. However, it is submitted that High Court cannot held as to whether judgment passed by Supreme Court is per incur incuriam or not?
30. It is submitted by counsel for respondents that since, the aforesaid question is already under reference, therefore the hearing of this case may be deferred awaiting outcome of W.P.No.3499/2022.
31. Considered the submission made by counsecounsel for parties.
32. It is well established principle of law that even if an order has been referred to a Larger Bench but still it would hold the field unless and until the same is set aside. The prayer for deferment of hearing of this case is hereby rejected."
10. Thus, it is clear cl that if the beneficiary of Will wants to take advantage of a Will, then he has to seek a declaration from the Civil Court and the Revenue Courts or the Nazul authorities have no jurisdiction to adjudicate the genuineness and nd correctness of the Will.
Since the respondents No.1 and 2 are the legal heirs of Mohan Singh being his widow and daughter, therefore, they are entitled to inherit the property of Mohan Singh by virtue of Section 8 of Hindu Succession Act. If the petitioner ner wants to take advantage of Will, then he has to seek a declaration from the competent Court of Civil jurisdiction. Since the very jurisdiction of the Nazul Officer to mutate the name of the beneficiary on the basis of Will is in question therefore, whe whether the NEUTRAL CITATION NO. 2024:MPHC-JBP:41372 JBP:41372 31 M.P. No.4547/2024 impugned order passed by the Additonal Commissioner,, Narmadapuram Division, Narmadapuram is correct or not is not to be considered under the facts and circumstances of the case. Since the Nazul Officer himself had no jurisdiction to mutate the name of the petitioner on the basis of the Will purportedly executed by Mohan Singh therefore, the m mutation of name of petitioner cannot be upheld on technical issues.
11. Accordingly, it is directed that the name of petitioner cannot be mutated in the revenue records on the basis of Will executed by Mohan Singh. If the petitioner wants to take advantagee of so called Will executed by Mohan Singh, then he must seek declaration from the competent Court of civil jurisdiction.
12. At this stage, it is submitted by counsel for petitioner that the respondents No.1 and 2 have already filed a Civil Suit questio questioning the Will.
13. Accordingly, it is directed that the mutation of names of respondents No.1 and 2 shall be subject to final outcome of the Civil Suit.
14. It is made clear that the Civil Court shall decide the Civil Suit strictly tly in accordance with material, mat which would come on record without getting influenced or prejudiced by any of the findings given by the authorities.
15. With aforesaid observation, the petition is dismissed dismissed.
(G.S. G.S. AHLUWALIA AHLUWALIA) JUDGE SR* Digitally signed by SHANU RAIKWAR Date: 2024.08.21 15:58:36 +05'30'