Madhya Pradesh High Court
Krapal Singh vs Brajpal Singh on 7 January, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:309
1 MP-5632-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 7 th OF JANUARY, 2025
MISC. PETITION No. 5632 of 2023
KRAPAL SINGH AND OTHERS
Versus
BRAJPAL SINGH AND OTHERS
Appearance:
Shri Gaurav Mishra - Advocate for the petitioners.
Shri Sarvesh Kumar Sharma - Advocate for the respondents.
ORDER
This petition under Article 227 of the Constitution of India has been filed against the order dated 24.07.2023 passed by Additional Commissioner, Chambal Division, Morena, in Case No.152/2019-20/Appeal by which Additional Commissioner, Chambal Division, Morena, has remanded the matter back to the Tahsildar to decide the question of mutation afresh.
2 . It is submitted by counsel for petitioners that father of petitioners namely Pancham Singh, father of respondents namely Rajendra Singh and Lal Sahab were three brothers. Lal Sahab died issueless. The dispute is confined to the share of Lal Sahab. It is submitted that Lal Sahab executed a Will in favour of petitioners, however, respondents got their names mutated on the property of Lal Sahab in a clandestine manner. The said order was challenged by petitioners and the order of mutation passed by Tahsildar was set aside by SDO and matter was remanded back. Thereafter, Tahsildar mutated the names of petitioners on the basis of Will.
Signature Not Verified Signed by: RASHID KHAN Signing time: 1/10/2025 10:10:46 AMNEUTRAL CITATION NO. 2025:MPHC-GWL:309 2 MP-5632-2023
3. Being aggrieved by said order, respondents preferred an appeal before SDO which was dismissed by order dated 18.07.2019 passed in Case No.38/Appeal/2017-18. Being aggrieved by said order, respondents preferred second appeal before the Additional Commissioner Chambal Division, Morena, which was registered at Case No.152/2019-20/Appeal. By impugned order dated 24.07.2023, Additional Commissioner, Chambal Division, Morena, has remanded the matter back to Tahsildar on the ground that Will was not properly examined by Revenue Courts.
4 . Challenging the order passed by Additional Commissioner, Chambal Division Morena, it is submitted by counsel for petitioners that respondents had filed civil suit for partition and permanent injunction. The said civil suit was registered as RCSA No.64-A/2014. Petitioners filed their written statements and also placed the photocopy of Will on record. The civil suit filed by respondents was dismissed by Second Civil Judge Class II, Lahar District Bhind by judgment and decree dated 05.07.2017 and in paragraph 12 of the aforesaid judgment and decree, it was mentioned that petitioners have filed a photocopy of Will which has not been objected by respondents and therefore, it was held that there is no dispute with regard to the Will executed by Lal Sahab. Therefore, it is submitted that Additional Commissioner, Chambal Division, Morena, should not have remanded the matter back to adjudicate the question of validity of Will. It is further submitted that now the petitioners have also filed suit for declaration of title on the basis of Will in which respondents have entered their appearance.
5. Per contra , petition is vehemently opposed by counsel for respondents. Shri Sharma has supported the findings recorded by Additional Commissioner.
6. Heard the counsel for parties.
7 . The moot question for consideration is as to whether Revenue Courts Signature Not Verified Signed by: RASHID KHAN Signing time: 1/10/2025 10:10:46 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:309 3 MP-5632-2023 have any jurisdiction to adjudicate the genuineness and correctness of Will or not? The aforesaid question of law is nor more res integra . The Supreme Court in the case of Jitendra Singh Vs. State of Madhya Pradesh 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 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-of-rights. Entries in the revenue records or 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 property is concerned, it can only be decided by a competent civil court. 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; 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."
8 . The Supreme Court in the case of Suraj Bhan and others Vs. Financial Commissioner and others reported in (2007) 6 SCC 186 has held as under:-
"There is an additional reason as to why we need not interfere with that order under Article 136 of the Constitution. It is well settled that an entry in Revenue Records does not confer title on a person whose name appears in Record-of-Rights. It is settled law that entries in the Revenue Records or Jamabandi have only ''fiscal purpose'' i.e. payment of land-revenue, and no ownership is Signature Not Verified Signed by: RASHID KHAN Signing time: 1/10/2025 10:10:46 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:309 4 MP-5632-2023 conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent Civil Court (vide Jattu Ram v. Hakam Singh ). As already noted earlier, Civil Proceedings in regard to genuineness of Will are pending with High Court of Delhi. In the circumstances, we see no reason to interfere with the order passed by the High Court in the writ petition."
9. The Supreme Court in the case of H. Lakshmaiah Reddy and others Vs. L. Venkatesh Reddy reported (2015) 14 SCC 784 has held as under:-
"As rightly contended by the learned Senior Counsel appearing for the appellants, the first defendant did not relinquish or release his right in respect of the half-share in the suit property at any point of time and that is also not the case pleaded by the plaintiff. The assumption on the part of the High Court that as a result of the mutation, the first defendant divested himself of the title and possession of half-share in suit property is wrong. The mutation entries do not convey or extinguish any title and those entries are relevant only for the purpose of collection of land revenue. The observations of this Court in Balwant Singh case are relevant and are extracted below: (SCC p. 142, paras 21-22) "21. We have considered the rival submissions and we are of the view that Mr Sanyal is right in his contention that the courts were not correct in assuming that as a result of Mutation No. 1311 dated 19-7-1954, Durga Devi lost her title from that date and possession also was given to the persons in whose favour mutation was effected. In Sawarni v. Inder Kaur, Pattanaik, J., speaking for the Bench has clearly held as follows:
(SCC p. 227, para 7)
7. .....Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. The learned Additional District Judge was wholly in error in coming to a conclusion that mutation in favour of Inder Signature Not Verified Signed by: RASHID KHAN Signing time: 1/10/2025 10:10:46 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:309 5 MP-5632-2023 Kaur conveys title in her favour. This erroneous conclusion has vitiated the entire judgment.'
22. Applying the above legal position, we hold that the widow had not divested herself of the title in the suit property as a result of Mutation No. 1311 dated 19-7-
1954. The assumption on the part of the courts below that as a result of the mutation, the widow divested herself of the title and possession was wrong. If that be so, legally, she was in possession on the date of coming into force of the Hindu Succession Act and she, as a full owner, had every right to deal with the suit properties in any manner she desired."
In the circumstances, we are of the opinion that the High Court erred in concluding that the first defendant by his conduct had acquiesced and divested himself of title of his half-share in suit property and the said erroneous conclusion is liable to be set aside."
10. The Division Bench of this Court in the case of Hariprasad Bairagi Vs. Radheshyam and others reported in 2022 (1) MPLJ 414 has held as under:-
"9. Appellant has raised the ground of application of Chapter IV (Mutations in the Khasra) of Rules Regarding Record of Rights framed under the provisions of MPLRC in which he placed reliance over Rule 24 and 32. Relevant rules are reproduced hereinbelow for ready reference:-
"24. The Patwari shall maintain a register in Form E in which he shall enter village wise every change in ownership of land due to transfers by registered deeds, inheritance, survivourship, bequest or lease reported to him under section 109 or which come to his notice from intimations received from Gram Panchayat or from any other source.
32. Disputes shall be decided summarily by the Tahsildar on the basis of title and not possession. Any transfer by a person whose name is not recorded in the Khasra shall not be admitted in mutation by the Tahsildar. The order shall contain the names of the parties and witnesses and a brief summary of the evidence produced by either side together with the Signature Not Verified Signed by: RASHID KHAN Signing time: 1/10/2025 10:10:46 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:309 6 MP-5632-2023 Tahsildar findings thereon."
These rules are provided in Chapter IV of said Rules which deals regarding Mutations in the Khasra . On close scrutiny, it appears that it does not deal in respect of ouster of jurisdiction of Civil Courts from adjudication of Title. It only talks about maintenance of register by Patwari in which every change in ownership of land due to various modes of Transfers gets recorded and other rules indicate the mechanism for Recording such Rights.
10. So far as Rule 32 is concerned, it does not talk about disputes arising out of respective rights of parties but it contemplates disputes in respect of recording entries in Khasra while undertaking mutation proceedings. Therefore, summary enquiry by Tahsildar is being envisaged.
11. Rules 24 and 32 of Rules Regarding Record of Rights (under M. P. Land Revenue Code) do not contemplate adjudication of title by Tahsildar. It is meant for recording "Consequence of Adjudication" and "Transfer of Ownership" for mutation purpose.
Summary proceedings as contemplated in Rule 32 are only for the purpose of recording of rights of parties. It nowhere, gives authority to Tahsildar to go into the question of title and decide the title by leading evidence in the proceedings. Tahsildar on his own accord cannot record evidence and decide the title arising out of Will. It is the domain of Civil Courts only and understandably so because Civil Court has all necessary tools of adjudication like proper pleadings, summoning of witnesses, recording of evidence, marshaling and appreciation of evidence and other ancillary mechanism along with trained judicial minds. Full Bench of this Court in the case of Ramgopal Kanhaiyalal vs. Chetu Batte, 1976 M.P.L.J. (F.B.) 325 AIR 1976 MP 160 categorically held in somewhat similarly pleaded facts as under:-
"Determination of the question of title is the province of the Civil Court and unless there is any express provision to the contrary, exclusion of the jurisdiction of the Civil Court cannot be assumed or implied. The scheme of the Code consistently preserves the jurisdiction of the Civil Court to decide questions of title and that jurisdiction is not excluded."Signature Not Verified Signed by: RASHID KHAN Signing time: 1/10/2025 10:10:46 AM
NEUTRAL CITATION NO. 2025:MPHC-GWL:309 7 MP-5632-2023 The Full Bench of this Court taken into account sections 250 and 257 of MPLRC while considering this aspect. Decision of Full Bench of this Court is found to be a good law by Hon'ble Apex Court in the case of Rohini Prasad and ors. vs. Kasturchand and anr., AIR 2000 SC 1283.
12. Recently, in the case of Murari and anr. vs. State of M. P. and ors., 2020(4) M.P.L.J. 139 coordinate Division Bench of this Court held that 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 Will if one party approaches to it because they have a remedy to approach the Civil Court for declaration of their title.
13. Similarly, learned writ Court does not falter when it mandates that any proceedings between the parties as contemplated under section 31 of MPLRC does not take into its ambit the question of adjudication of title of parties on the basis of a Will. It contemplates a situation where application for mutation is a proceeding where all legal heirs are brought on record after the death of owner of the agriculture holding. It does not contemplate adjudication of title. Therefore, on this count also, learned writ Court is right in its approach while relegating the parties to the civil Court, if they desire so, to get the Will tested on the altar of evidence to be led in civil suit before competent civil Court."
11. This Court in the case of Anand Kumar Jain and another Vs. Chandra Kumar Jain and others passed in MP 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 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 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.Signature Not Verified Signed by: RASHID KHAN Signing time: 1/10/2025 10:10:46 AM
NEUTRAL CITATION NO. 2025:MPHC-GWL:309 8 MP-5632-2023
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 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, 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 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-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 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. 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, 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 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 question as to Signature Not Verified Signed by: RASHID KHAN Signing time: 1/10/2025 10:10:46 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:309 9 MP-5632-2023 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? Did he 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 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, when 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 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 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 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 otherwise indicate Signature Not Verified Signed by: RASHID KHAN Signing time: 1/10/2025 10:10:46 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:309 10 MP-5632-2023 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 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 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 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 of the will and the propounder is required to remove the said suspicion by clear and 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 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 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 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 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 Signature Not Verified Signed by: RASHID KHAN Signing time: 1/10/2025 10:10:46 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:309 11 MP-5632-2023 result of the application of these two general and broad principles would always depend upon the facts and circumstances of each 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) 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.
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". "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 observations of Baron Parke in the case of Barry v. Butlin [(1838) 2 Moo PC 480, 482] . The two rules of law set out by Baron Parke are:"first, that the onus probandi lies in every case upon the 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 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 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 Signature Not Verified Signed by: RASHID KHAN Signing time: 1/10/2025 10:10:46 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:309
12 MP-5632-2023 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 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 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 principle 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 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 of the will and even in such cases it is the 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] .
"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 Signature Not Verified Signed by: RASHID KHAN Signing time: 1/10/2025 10:10:46 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:309 13 MP-5632-2023 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 of 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. 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 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 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 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 certain passages which referred to the deed-poll executed 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 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 part of Signature Not Verified Signed by: RASHID KHAN Signing time: 1/10/2025 10:10:46 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:309 14 MP-5632-2023 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-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 that it would no doubt have been more prudent and 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 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 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 could be accepted as genuine.
21. TheSupreme Court in the case of Gorantla Thataiah v. Thotakura Venkata Subbaiah and others, reported in AIR 1968 SC 1332 has held as it is for those who propound the Will to prove the same.
22. The Supreme Court in the case of Murthy and others v. C. Saradambal and others, reported in (2022) 3 SCC 209 has held that Signature Not Verified Signed by: RASHID KHAN Signing time: 1/10/2025 10:10:46 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:309 15 MP-5632-2023 intention of testator to make testament must be proved, and propounder of Will must examine one or more attesting witnesses and 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. 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. 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, 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 question 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? Did he put his signature Signature Not Verified Signed by: RASHID KHAN Signing time: 1/10/2025 10:10:46 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:309
16 MP-5632-2023 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 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."
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 of the will.
33. In the abovenoted case, this Court has stated that the following three aspects must be proved by a propounder:
(Bharpur Singh case [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 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 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 facts indicated therein."
34. In Jaswant Kaur v. Amrit Kaur [Jaswant Kaur v. Amrit 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 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 Signature Not Verified Signed by: RASHID KHAN Signing time: 1/10/2025 10:10:46 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:309 17 MP-5632-2023 satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such a satisfaction unless the party which sets up the will offers cogent and convincing explanation with regard to any suspicious circumstance surrounding the making of the will.
35. In Bharpur Singh v. Shamsher Singh [Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687 : (2009) 1 SCC (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."
36. It was further observed in Shamsher Singh case [Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687 : (2009) 1 SCC (Civ) 934] that the circumstances narrated hereinbefore are not exhaustive. Subject to offering of a reasonable explanation, existence 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 Umeshchandra Joshi v. Mrudula Jyoti Rao, (2006) 13 SCC 433] , in paras 34 to 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 Signature Not Verified Signed by: RASHID KHAN Signing time: 1/10/2025 10:10:46 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:309 18 MP-5632-2023 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 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 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 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 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 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 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 SCC 695] , held as under:
(Bharpur Singh case [Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687 : (2009) 1 SCC (Civ) 934] , SCC p. 698, para 20) "20. This Court in Anil Kak v. Sharada Raje [Anil 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) Signature Not Verified Signed by: RASHID KHAN Signing time: 1/10/2025 10:10:46 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:309 19 MP-5632-2023 '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 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 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 attestandi is a necessary ingredient for proving the attestation.' "
39. Similarly, in Leela Rajagopal v. Kamala Menon Cocharan [Leela Rajagopal v. Kamala Menon 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 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 repeated pronouncements made by this Court on the subject including the decisions referred to and relied upon before us."
Signature Not Verified Signed by: RASHID KHAN Signing time: 1/10/2025 10:10:46 AMNEUTRAL CITATION NO. 2025:MPHC-GWL:309 20 MP-5632-2023
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, reported in (2021) 16 SCC 543.
24. The Supreme Court in the case of Bharpur Singh and others v. Shamsher 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 of 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 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, Balathandayutham and another v. Ezhilarasan, reported in (2010) 5 SCC 770, Pentakota Satyanarayana and others v. Pentakota Seetharatnam and others, reported in (2005) 8 SCC 67 and Meenakshiammal (Dead) through legal representatives and others v. Chandrasekaran and another, reported in (2005) 1 SCC 280.
26. 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 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 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 Signature Not Verified Signed by: RASHID KHAN Signing time: 1/10/2025 10:10:46 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:309 21 MP-5632-2023 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-of-rights. Entries in the revenue records or 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 property is concerned, it can only be decided by a competent civil court. 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; 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 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 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 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 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, 2018 necessarily means a valid and genuine Will and not any piece of 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 Signature Not Verified Signed by: RASHID KHAN Signing time: 1/10/2025 10:10:46 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:309 22 MP-5632-2023 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 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 counsel 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."
1 2 . Thus, it is clear that Revenue Authorities have no jurisdiction to adjudicate upon the correctness of the Will and it is only the Civil Court which can adjudicate the same. So far as the observations made by Trial Court in judgment and decree passed in RCSA No.64-A/2014 is concerned, the same cannot be treated as findings on merits because photocopy of Will was filed and burden is on the propounder of Will to prove its genuineness. Furthermore, petitioner has also filed a civil suit for declaration of title on the basis of Will.
1 3 . Under these circumstances, once the Revenue Courts have no jurisdiction to mutate the names of propounder by adjudicating the correctness and genuineness of Will, then this Court is of considered opinion that Additional Commissioner Chambal Division, Morena should not have remanded the matter back and in fact, should have set aside the orders passed by Tahsildar dated 19.09.2017 in Case No.80/10-11/A-6 as well as order dated 18.07.2019 passed by SDO (Revenue) Lahar, District Bhind in Appeal No.38/Appeal/2017-18.
1 4 . Under these circumstances, this petition is allowed. Order dated 24.07.2023 passed by Additional Commissioner, Chambal Division, Morena, passed in Case No.152/2019-20/Appeal, order dated 19.09.2017 passed by Signature Not Verified Signed by: RASHID KHAN Signing time: 1/10/2025 10:10:46 AM NEUTRAL CITATION NO. 2025:MPHC-GWL:309 23 MP-5632-2023 Tahsildar, Lahar in Case No.80/10-11/A-6 and orders dated 18.07.2019 passed by SDO, Lahar Bhind in Appeal No.38/Appeal/2017-18 are hereby set aside . Application filed by respondents for mutation is hereby dismissed.
15. Since a civil suit has already been instituted by petitioners to establish their title on the basis of Will, therefore, it is directed that till civil litigation is decided thereby adjudicating the genuineness of the Will, names of all the heirs of Lal Sahab shall be mutated in the revenue records. Such mutation shall be subject to final outcome of the civil litigation.
16. Parties shall not create any third party right in order to avoid any confusion and multiplicity of litigation. It is made clear that this dispute is only in respect of share of Lal Sahab and not the independent shares of Pancham Singh and Rajendra Singh or their legal representatives.
17. With aforesaid observation, this petition is allowed.
(G. S. AHLUWALIA) JUDGE Rashid Signature Not Verified Signed by: RASHID KHAN Signing time: 1/10/2025 10:10:46 AM