Madhya Pradesh High Court
Ranjit Alias Bhaiyu Mohite vs Smt. Nandita Singh on 16 February, 2021
Equivalent citations: AIRONLINE 2021 MP 114
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
HIGH COURT OF MADHYA PRADESH 1
MP 2692 of 2020
Ranjit alias Bhaiyu Mohite Vs. Smt. Nandita Singh & Ors.
Gwalior, dtd. 16/02/2021
Shri Santosh Agrawal, counsel for the petitioner.
Shri Deepak Khot, Counsel for the respondent No.1.
None for the respondents No.2 and 3.
Shri CP Singh, Panel Lawyer for the respondent No.4/ State. Since the contesting party is the respondent No.1, therefore, the case is heard finally.
This miscellaneous petition under Article 227 of Constitution of India has been filed against the order dated 10/10/2002 passed by Tahsildar, Tahsil Gwalior in Case No.89/01-02/A-6, order dated 07/12/2018 passed by SDO, Lashkar, District Gwalior in Case No.68/2016-17/Appeal and order dated 10/06/2020 passed by Additional Commissioner, Gwalior Division, Gwalior in Case No. 109/18-19/Appeal.
(2) The necessary facts for disposal of the present petition in short are that the respondent no.1 filed an application under Section 110 of MPLR Code before the Tahsildar for mutation of her name on the basis of Will purportedly executed by Vijay Singh Rao Mohite, son of Late Shankar Rao Mohite, who was also known as ''Vijay Singh Rao Ghorpade'' in respect of Survey Nos.18, 19, 22, 23, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, HIGH COURT OF MADHYA PRADESH 2 MP 2692 of 2020 Ranjit alias Bhaiyu Mohite Vs. Smt. Nandita Singh & Ors. 151, 152, 153, 154, 155, 156, 157, 158, 162, 163, 164, 165, 166, 167, 168, 169, 173, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188 and 189, total area 49 bigha 6 biswa situated in Village Ghatampur, Tahsil and District Gwalior.
(3) It is the case of the respondent No.1 that she was brought up by the testator when she was 10 years old and her marriage was also performed by the testator and out of love and affection, the testator had executed an unregistered ''Will'' on 04/04/2002. Although the order sheets of the Tahsildar, Tahsil Gwalior have not been placed on record, but it appears from the order dated 10/10/2002 passed by Tahsildar, Tahsil Gwalior (Annexure P3) that a public notice was issued but no objection was received from anybody. Accordingly, the respondent no.1 examined Aditya Patankar and Govinddas Bansal who are the attesting witnesses of the unregistered ''Will'' (Annexure P5). The statements of Patwari were also recorded by the Tahsildar, who stated that the above-mentioned survey numbers are recorded in the name of Vijay Singh Rao Mohite, in the Khasra Panchshala and accordingly, the Tahsildar, Tahsil Gwalior by order dated 10/10/2002 directed for mutation of the name of respondent no.1 on the basis of unregistered ''Will'' purportedly executed by Vijay Singh Rao Mohite. (4) Being aggrieved by the order of mutation, the petitioner preferred an appeal along with an application for condonation of delay HIGH COURT OF MADHYA PRADESH 3 MP 2692 of 2020 Ranjit alias Bhaiyu Mohite Vs. Smt. Nandita Singh & Ors. which was registered as Case No.68/2016-17/Appeal. By the order dated 07/12/2018 passed by SDO, Lashkar, District Gwalior, the appeal filed by the petitioner was dismissed as barred by time as well as was also dismissed on merits.
(5) Being aggrieved by the order passed by the SDO, Lashkar, District Gwalior, the petitioner preferred an appeal before the Additional Commissioner, Gwalior Division, Gwalior which was registered as Case No.109/2018-19/Appeal, which too has been dismissed after relying upon the unregistered ''Will'' relied upon by the respondent No.1.
(6) Challenging the orders passed by the authorities below, it is submitted by the Counsel for the petitioner that the revenue authorities are not competent to adjudicate the correctness and genuineness of ''Will'' and thus, the mutation of the name of the respondent No.1 on the basis of ''Will'' was without jurisdiction. It is further submitted that even otherwise, it is well-established principle of law that the propounder of ''Will'' has to remove all suspicious circumstances which are attached to a ''Will'' and if the evidence led by the respondent No.1 is considered, then it is clear that none of the witnesses had stated that who had got the ''Will'' typed and whether the ''Will'' was got typed on the instructions of the testator and whether the ''Will'' was read over to the testator before signing the HIGH COURT OF MADHYA PRADESH 4 MP 2692 of 2020 Ranjit alias Bhaiyu Mohite Vs. Smt. Nandita Singh & Ors. same or the testator had himself read that ''Will''. Even the scribe of the unregistered ''Will'' was not examined. Accordingly, it is submitted that even otherwise, the ''Will'' was not proved by the respondent no.1 and, therefore, the Tahsildar should not have mutated the name of the respondent no.1 on the basis of ''Will''. It is further submitted that the respondent No.1 is not related to the testator in any manner. In the application which was filed under Section 110 of MPLR Code, it was nowhere mentioned as to how the respondent no.1 is the legal heir of the testator. It is merely mentioned that the testator had died issue-less and since the respondent no.1 had looked after the testator and it was a testator, who had arranged for marriage of the respondent no.1, therefore, the respondent no.1 is the legal heir. It is submitted that in the application which was filed under Section 110 of MPLR Code, it is nowhere mentioned that the respondent no.1 was adopted by the testator and in absence of any adoption deed, the respondent no.1 cannot be treated as legal heir of the testator and, therefore, even otherwise, the name of the respondent no.1 was not liable to be mutated in the revenue record.
(7) Per contra, justifying the order of mutation passed by the authorities below, it is submitted by the Counsel for the petitioner that the respondent no.1 has examined both the attesting witnesses and who have specifically proved that ''Will'', was signed by the testator in HIGH COURT OF MADHYA PRADESH 5 MP 2692 of 2020 Ranjit alias Bhaiyu Mohite Vs. Smt. Nandita Singh & Ors. their presence and they had also signed the ''Will'' in the presence of the testator and, therefore, it is submitted that the ''Will'' was duly proved by the respondent no.1. It is further submitted that from the ''Will'', it is clear that the testator had claimed that the mother of the respondent no.1 was residing with him as his wife and after the marriage, the mother of the respondent no.1 also brought the respondent no.1 to the house of the testator and the marriage of the respondent No.1 was performed by the testator and, therefore, the ''Will'' was executed in her favour. It is further submitted that under Section 110 of MPLR Code, the Tahsildar is competent to adjudicate as to whether the parties have acquired any title or not and, therefore, the Tahsildar or the revenue authorities are competent and have jurisdiction to adjudicate the correctness and genuineness of a ''Will''. The Counsel for the petitioner has also relied upon the judgment passed by the Supreme Court in the case of Ouseph Mathai and Others vs. M. Abdul Khadir, reported in (2002) 1 SCC 319 and submitted that this Court in exercise of power under Article 227 of Constitution of India should not interfere with the concurrent findings of fact recorded by the authorities below.
(8) Heard the learned Counsel for the parties. (9) So far as the jurisdiction of this Court to test the correctness of the orders passed by the Tribunals is concerned, the answer lies in the HIGH COURT OF MADHYA PRADESH 6 MP 2692 of 2020 Ranjit alias Bhaiyu Mohite Vs. Smt. Nandita Singh & Ors. judgment relied upon by the Counsel for the respondent no.1 himself. (10) The Supreme Court in the case of Ouseph Mathai (supra) has held as under:-
''4................. In fact power under this Article casts a duty upon the High Court to keep the inferior courts and tribunals within the limits of their authority and that they do not cross the limits, ensuring the performance of duties by such courts and tribunals in accordance with law conferring powers within the ambit of the enactments creating such courts and tribunals. Only wrong decisions may not be a ground for the exercise of jurisdiction under this Article unless the wrong is referable to grave dereliction of duty and flagrant abuse of power by the subordinate courts and tribunals resulting in grave injustice to any party.'' (11) One of the contentions of the Counsel for the petitioner is that the revenue authorities do not have any jurisdiction to entertain the application under Section 110 of MPLR Code on the basis of ''Will''. If this argument is answered in affirmative, then it would be clear that the authorities had acted beyond their jurisdiction and thus, this Court will have a jurisdiction to set aside the orders passed by the authorities while exercising its power under Article 227 of Constitution of India.
(12) It is the submission of the Counsel for the respondent No.1 that Section 110 of MPLRC Code gives the jurisdiction to the Tahsildar to mutate the name of the person who has acquired right in the property.
(13) Section 110 of MPLRC Code reads as under:-
''110. Mutation of acquisition of right in land records. - (1) The Patwari or Nagar Sarvekshak or person authorised under section 109 shall enter into a register prescribed for HIGH COURT OF MADHYA PRADESH 7 MP 2692 of 2020 Ranjit alias Bhaiyu Mohite Vs. Smt. Nandita Singh & Ors.
the purpose every acquisition of right reported to him under section 109 or which comes to his notice from any other source.
(2) The Patwari or Nagar Sarvekshak or person authorised, as the case may be, shall intimate to the Tahsildar, all reports regarding acquisition of right received by him under sub-section (1) in such manner and in such Form as may be prescribed, within thirty days of the receipt thereof by him. (3) On receipt of intimation under section 109 or on receipt of intimation of such acquisition of right from any other source, the Tahsildar shall within fifteen days, -
(a) register the case in his Court;
(b) issue a notice to all persons interested and to such other persons and authorities as may be prescribed, in such Form and manner as may be prescribed; and
(c) display a notice relating to the proposed mutation on the notice board of his office, and publish it in the concerned village or sector in such manner as may be prescribed;
(4) The Tahsildar shall, after affording reasonable opportunity of being heard to the persons interested and after making such further enquiry as he may deem necessary, pass orders relating to mutation within thirty days of registration of case, in case of undisputed matter, and within five months, in case of disputed matter, and make necessary entry in the village khasra or sector khasra, as the case may be, and in other land records.
(5) The Tahsildar shall supply a certified copy of the order passed under sub-section (4) and updated land records free of cost to the parties within thirty days, in the manner prescribed and only thereafter close the case :
Provided that if the required copies are not supplied within the period specified, the Tahsildar shall record the reasons and report to the Sub-Divisional Officer.
(6) Notwithstanding anything contained in section 35, no case under this section shall be dismissed due to the absence of a party and shall be disposed of on merits. (7) All proceedings under this section shall be completed within two months in respect of undisputed case and within six months in respect of disputed case from the date of registration of the case. In case the proceedings are not disposed of within the specified period, the Tahsildar shall report the information of pending cases to the Collector in HIGH COURT OF MADHYA PRADESH 8 MP 2692 of 2020 Ranjit alias Bhaiyu Mohite Vs. Smt. Nandita Singh & Ors.
such Form and manner as may be prescribed.]'' (14) ''Acquisition of right'' is a crucial aspect which has to be kept in mind while deciding the application under Section 110 of MPLR Code.
(15) The moot question for consideration is that whether the revenue authorities are competent to go to the extent of deciding the disputed question of title by adjudicating the correctness and genuineness of ''Will'' or not ?
(16) It is submitted by the Counsel for the respondent No.1 that the right can also be acquired by virtue of a ''Will''. Therefore, once the Tahsildar has a jurisdiction to decide the application under Section 110 of MPLRC Code on the basis of acquisition of right of the parties, then the Tahsildar has a jurisdiction to decide the correctness and genuineness of ''Will'' also.
(17) Per contra, it is submitted by the Counsel for the State that it is well-established principle of law that the burden to prove the ''Will'' is on the propounder and he has to remove all suspicious circumstances which are attached to a ''Will'' and since the ''Will'' is a departure from the general law of succession, therefore, it necessarily involves the question of title, which cannot be adjudicated by the revenue authorities.
(18) Considered the submissions made by the Counsel for the HIGH COURT OF MADHYA PRADESH 9 MP 2692 of 2020 Ranjit alias Bhaiyu Mohite Vs. Smt. Nandita Singh & Ors. parties.
(19) Section 31 of MPLR Code reads as under:-
"31. Conferral of Status of Courts on Board and ''Revenue Officers. - The Board or a Revenue Officer, while exercising power under this Code or any other enactment for the time being in force to enquire into or to decide any question arising for determination between the State Government and any person or between parties to any proceedings, shall be a Revenue Court."
(20) Thus, from the plain reading of the aforesaid Section, it is clear that the revenue authorities shall be treated as revenue court for the purposes of ''any proceedings between the parties''. The important question which involves in the interpretation of Section 31 of MPLR Code is as to whether the words ''any proceedings'' would include a question of title also or the proceedings are confined to the proceedings under the MPLR Code only.
(21) If an application under Section 110 of MPLR Code is filed for mutation of the name of all the legal heirs, then it would certainly be a proceeding under the MPLR Code because the question of title is not involved and all the legal heirs of the deceased/owner will be brought on record without any further adjudication but whether the adjudication of the title of the parties on the basis of a ''Will'' can be said to be a proceeding under the Act or not, is a moot question which requires consideration.
(22) Section 178 of MPLR Code reads as under:-
HIGH COURT OF MADHYA PRADESH 10 MP 2692 of 2020 Ranjit alias Bhaiyu Mohite Vs. Smt. Nandita Singh & Ors.
"178. Partition of holding. - (1) If in any holding, which has been assessed for purpose of agriculture under Section 59, there are more than one Bhumiswami any such Bhumiswami may apply to a Tahsildar for a partition of his share in the holding:
[Provided that if any question of title is raised the Tahsildar shall stay the proceeding before him for a period of three months to facilitate the institution of a civil suit for determination of the question of title.] [(1-A) If a civil suit is filed within the period specified in the proviso to sub-section (1), and stay order is obtained from the Civil Court, the Tahsildar shall stay his proceedings pending the decision of the civil court. If no civil suit is filed within the said period, he shall vacate the stay order and proceed to partition the holding in accordance with the entries in the record of rights.] (2) The Tahsildar, may, after hearing the co-tenure holders, divide the holding and apportion the assessment of the holding in accordance with the rules made under this Code.
[(3) x x x] [(4) x x x] [(5) x x x] Explanation I.-For purposes of this section any co-sharer of the holding of a Bhumiswami who has obtained a declaration of his title in such holding from a competent civil court shall be deemed to be a co-tenure holder of such holding.
Explanation II.-[ x x x]"
(23) Proviso to Section 178(1) of MPLR Code specifically provides that in a partition proceedings, if any question of title is raised by any of the parties, then the revenue authorities shall stay the proceedings for a period of three months in order to facilitate the parties for institution of a civil suit for determination of question of title. Proviso to Section 178(1) of MPLR Code makes it clear as noon day that question of determination of title is beyond jurisdiction of the revenue HIGH COURT OF MADHYA PRADESH 11 MP 2692 of 2020 Ranjit alias Bhaiyu Mohite Vs. Smt. Nandita Singh & Ors.
authorities, otherwise the Tahsildar was not required to stay the proceedings so that the party to the partition proceedings may institute a civil suit for determination of question of title. If the words "any proceedings" are read in the light of the proviso to Section 178(1) of MPLR Code, then it is clear that ''any proceedings'' would not include any proceeding involving the question of title of the parties. Whenever the question of title is raised or is involved, then the matter has to be adjudicated by the Civil Court and not by the revenue authorities. (24) It is submitted by the counsel for the respondent No. 1 that since in the present case, a public notice was issued, but as nobody had raised any objection, therefore, in absence of any challenge to the ''Will'', the revenue authorities did not commit any mistake by mutating the name of respondent No. 1.
(25) Considered the submissions made by the counsel for the respondent No. 1.
(26) It is well-established principle of law that the burden is on the propounder of the ''Will'' to prove that the ''Will'' was executed in his favour by the testator. Even if the ''Will'' is not challenged by anybody, but still the propounder of the ''Will'' has to discharge his burden and no decree can be passed even by the Civil Court merely on the ground that the respondents have chosen not to appear before it or have failed to file their written statement as provided under Order 8 Rule 10 CPC.
HIGH COURT OF MADHYA PRADESH 12 MP 2692 of 2020 Ranjit alias Bhaiyu Mohite Vs. Smt. Nandita Singh & Ors. (27) Under these circumstances, even if nobody had responded to the public notice issued by the Tahsildar, it would not absolve the respondent No.1 for proving the ''Will'' in accordance with law. (28) This Court in the case of Dharamveer Singh and Others vs. Rushtum Singh and Others, by order dated 27/08/2019 passed in MP No. 3281 of 2019 has already held that the question of adjudication of correctness and genuineness of a ''Will'' is beyond the competence and jurisdiction of the revenue authorities. (29) From the order dated 07.12.2018 passed by the SDO, Lashkar, Gwalior, it is clear that the SDO had rejected the application filed under Section 5 of Limitation Act. After rejecting the application, the SDO should have dismissed the appeal as barred by limitation, but instead of dismissing the appeal as barred by limitation, the SDO has also considered the merits of the case, which was not expected because unless and until, the delay is condoned, it cannot be said that there was any appeal in the eyes of law before the SDO, Lashkar District Gwalior. However, since this Court has already held that the Tahsildar, Tahsil Gwalior had no jurisdiction to entertain an application under Section 110 of MPLR Code on the basis of ''Will'' therefore, the order passed by the Tahsildar was without jurisdiction and it was a nullity. Any order which is a nullity can always be challenged even in the collateral proceedings. Thus, even if the HIGH COURT OF MADHYA PRADESH 13 MP 2692 of 2020 Ranjit alias Bhaiyu Mohite Vs. Smt. Nandita Singh & Ors. petitioner had filed time-barred appeal, still it would not confer any right on the respondent No.1 on the basis of an order which was without jurisdiction.
(30) At this stage, it is submitted by the counsel for the parties that the petitioner has already instituted a civil suit, in which the respondent No.1 has already entered her appearance. However, it is submitted by the counsel for the petitioner that since the respondent No. 1 has failed to prove the ''Will'' before the Tahsildar, therefore, the order of mutation should be quashed.
(31) So far as the adjudication of the correctness and genuineness of the ''Will'' by the revenue authorities is concerned, it has already been held to be beyond their jurisdiction and as this petition arises out of the revenue proceedings, therefore, after holding that the revenue authorities have no jurisdiction to adjudicate the correctness and genuineness of ''Will'', this Court is not expected to make any observation on the merits of the case.
(32) Since the civil suit is already pending between the parties, therefore also, even a single word on the merits of the case by this Court will prejudice the parties. Since this Court has already held that the Tahsildar has no jurisdiction to entertain an application for mutation on the basis of a ''Will'', as a natural consequence, the order dated 10/10/2002 passed by Tahsildar, Tahsil Gwalior in Case HIGH COURT OF MADHYA PRADESH 14 MP 2692 of 2020 Ranjit alias Bhaiyu Mohite Vs. Smt. Nandita Singh & Ors. No.89/01-02/A-6, order dated 07/12/2018 passed by SDO, Lashkar, District Gwalior in Case No.68/2016-17/Appeal and order dated 10/06/2020 passed by Additional Commissioner, Gwalior Division, Gwalior in Case No.109/18-19/Appeal are hereby set aside. (33) The Tahsildar is directed to delete the name of respondent No. 1 from the revenue record with immediate effect. The Tahsildar, Tahsil Gwalior is directed to mutate the name of the legal heirs of Late Vijay Singh Rao Mohite as per Hindu Succession Act. If the legal heirs are not available, then the Tahsildar, Tahsil Gwalior is directed to record the name of the State Government.
(34) The mutation either in the name of legal heir or in the name of State Government shall be subject to the outcome of the civil suit, which is pending between the parties. It is further directed that in case, if the names of the legal heirs of Late Vijay Singh Rao Mohite or the State Government are mutated, then neither the legal heirs nor the State Government would create any third party right in the property and status quo shall be maintained till the final adjudication by the Civil Court.
(35) With the aforesaid observations, this petition is finally disposed of.
(G. S. Ahluwalia) Judge MKB MAHENDRA KUMAR BARIK 2021.02.18 VALSALA VASUDEVAN 2018.10.26 15:14:29 -07'00' 11:11:56 +05'30'