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(iv) Assailing the said order, an appeal was preferred and the appellate authority i.e. Sub Divisional Officer vide order dated 13.12.2021 set aside the order of Tehsildar dated 13.10.2020 directing the revenue records be corrected and name of persons in whose favour registered will was executed on 28.08.2014 be recorded as owners of the property.

(v) The said order of first appellate authority was further put to test by filing second appeal before the Additional Commissioner on various grounds including the ground that the revenue authority did not have any jurisdiction to give its opinion about the correctness and genuineness of Will and on the basis of Will mutation cannot be done. It was further submitted that on 06.12.2021, although the matter was listed for filing reply to the application filed under Order VII Rule 11 CPC and for arguments, however, not only the application was rejected and right to cross-examine was struck down, but the SDO vide order dated 13.12.2021 set aside the order dated 13.10.2020 and directed that in place of Prabhawati, the name of respondent No.5 be recorded on the basis of Will dated 28.08.2014. The Additional Commissioner while deciding the appeal found the order of SDO dated 13.12.2021 in accordance with law and therefore dismissed the appeal. Ergo, challenging the orders of Additional Commissioner and SDO, the instant petition has been filed.

6. In contrast, Shri Naman Nagrath, learned senior counsel appearing for respondent No.5 submitted that the application filed under Section 109, 110 of Code, 1959 though rejected by the Tehsildar but since that order was fallible, therefore, appeal was preferred before SDO, which was allowed and the order of SDO has been affirmed by the Additional Commissioner. He further submitted that the legal heirs of Prabhawati have not come-forward to raise any objection with respect to the Will executed in favour of respondent No.5. He accentuated that in the decisions, on which reliance has been placed by the petitioner, no Court has seen the impact of amended Section 110 of Code, 1959 in which application of mutation has to be decided within a period of two months if there is no dispute and if there is dispute then within a period of six months. He also submitted that the Will submitted by respondent No.5 was a registered one and if any person is aggrieved therewith can seek declaration challenging the validity of the Will, but application of mutation cannot be brushed aside by the revenue authorities saying that Will is not a document on the basis of which revenue entries can be corrected. According to Shri Nagrath, revenue entries cannot be kept in abeyance and if any declaration is made by the Civil Court, it will have binding effect and revenue entries could be corrected accordingly, but rejection of the application saying that Will is not the document of title, is not justifiable. Focusing on the decisions relied upon at the behest of the petitioner, Shri Nagrath submitted that those decisions do not reveal that the Court has considered the Rules framed by the State Government specifically for the purpose of mutation i.e. known as Madhya Pradesh Bhu-Rajsav Sanhita (Bhu-Abhilekhon Mein Namantaran) Niyam, 2018 (for brevity, "Rules, 2018") and those rules are very specific showing that Will is a document of acquisition of lease hold rights. The other documents, according to Shri Nagrath, have also been mentioned in the Rules, 2018, on the basis of which, mutation can be done. Emphasizing on the decision of this Court in W.P.No.16920/2021 (Lokmani Jain v. Akhilesh Kumar Jain and another), Shri Nagrath submitted that in this decision, the Court after considering the impact of Rules, 2018, came to hold that on the basis of Will, mutation can be made and the revenue authorities, at the threshold, cannot reject the mutation application saying that Will is not a document on the basis of which mutation can be made.

9. Looking to the existing situation when views of the Courts are distinct to each other inasmuch as in some of the cases it has been observed that mutation cannot be made on the basis of Will and conversely in some cases it has been held that application of mutation, if submitted on the basis of Will, it cannot be rejected by the revenue authorities only on the ground that on the basis of Will, mutation cannot be done.

10. With utmost respect, it is indispensable to delve deep in the case of Jitendra Singh (supra), wherein it is apparent that the application for mutation was submitted in the year 2011, but at that time Rules, 2018 were not in force. The date of application of mutation would be decisive on the question of applicability of law and rules. The case before the High Court and the Supreme Court pertained to much before introduction of Rules, 2018. The prevalent law and rules pertaining to mutation did not provide for mutation based on Will, however, after Rules, 2018, it became permissible and as such law laid down not considering the Rules, 2018 cannot be held to be a binding precedent on the face of change in law. As per the amended provisions of Section 109 of Code, 1959 - 'report acquisition of such right within 6 months from the date of such acquisition; crystallization of rights on the basis of Will by Civil Court is long and tedious process taking years and mutation cannot be kept at abeyance till that time'. Notably, Rules, 2018 mentions 'Will'; self attested copy of Will sufficient for mutation; if any person disputing the Will, can approach the Civil Court; but till that time revenue records cannot be kept in vacuum; further, upon death of testator, mutation to be made in favour of person in whose name the Will is and eventually if Civil Court passes judgment-decree holding Will to be proved or not proved, the said judgment/order will be binding on revenue Court and the mutation entries would be altered accordingly. Since the Rules, 2018 superseded all earlier notifications and rules in regard to mutation, therefore, the impact of supersession has to be seen. Albeit, a notification was issued on 26.05.2023 by the Chief Secretary of the State on the basis of earlier decisions of the High Court and the Supreme Court, directing the Collectors to issue appropriate instructions to revenue officers in respect of mutation but that notification is in omission of provision of Rules, 2018 and in my opinion it is not enforceable because Rules, 2018 are there in force and the Rules cannot be clarified by way of notification.

12. Before the Supreme Court, in the case of Jitendra Singh (supra), the Will on the basis of which mutation was sought, was disputed by the other legal heirs of the executant of such Will. In such fact situation, the Supreme Court held that the party who is claiming his right or title on the basis of such Will, has to approach civil court and get his right crystallized, and only thereafter mutation entry can be made. In this case, the Supreme Court did not hold that, that Will is not a document of title and on the basis thereof, mutation cannot be made.