Jayan Govindrao Maind And 2 Others vs The Addiional Commissioner, ...
2021 Latest Caselaw 16675 Bom

                            1            26.WP.1153-2019 JUDGMENT.odt




    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
              NAGPUR BENCH : NAGPUR

            WRIT PETITION NO. 1153 OF 2019

1. Jayant Govindrao Maind,
   Age : 45 years, Occ. Agriculturist


2. Narendra Govindrao Maind,
   Age : 43 years, Occ. Agriculturist,

    Both r/o Krishna Krupa Colony,
    Chandur Railway, Taluka Chandur
    Railway, District Amravati.


3. Sandeep Govindrao Maind,
   Age : 40 years, Occ. Agriculturist,
   R/o. Durganagar, Morshi,
   Taluka Morshi, District Amravati.        PETITIONERS


          ...Versus...


1. The Additional Commissioner,
   Amravati Dn, Amravati.


2. The Additional Collector
   District Amravati.


3. Panchfula w/o Janardhan Bakale
   Age 78 Years, Occ. Household,
   R/o. Amla Vishveshwar,
   Taluka Chandur Railway,
   Dist. Amravati.
                                2              26.WP.1153-2019 JUDGMENT.odt




 4. Praful Janardhan Bakale,
    Age : Adult, Occ. Business,
    R/o. House of Mr. Raju Langde,
    Khadakpura, Chandur Railway,
    District Amravati.


 5. Talathi, Saza: Chandur Railway,
    Part-1, Tahsil : Chandur Railway,
    District Amravati.                           RESPONDENTS
-----------------------------------------------
Mr. S.S. Joshi, Advocate for the Petitioners.
Mr. A.A. Madiwale, AGP for Respondent Nos. 1, 2 & 5/State.
Mr. K.J. Topale, Advocate for Respondent Nos. 3 & 4.
-----------------------------------------------

                   CORAM : AVINASH G. GHAROTE, J.

                   DATED     : 2nd DECEMBER, 2021.

ORAL JUDGMENT :-




            Heard.

2. Rule, Rule made returnable forthwith. Heard finally

with the consent of the learned counsel for the rival parties.

3. The petition challenges the order dated 28.02.2018

passed by the respondent No. 2, whereby the order of the Sub

Divisional Officer, Chandur Railway dated 31.12.2016 in appeal 3 26.WP.1153-2019 JUDGMENT.odt

as well as the order of the Tahsildar, Chandur Railway dated

06.11.2015, directing mutating to be effecting as per the Will

dated 12.12.1988 of late Radhabai Motiramji Maind, has been

quashed and set-aside and so also the order passed by the

respondent No.1 dated 23.01.2019 maintaining the order of the

respondent No. 2.

4. It is contended by Mr. Joshi, learned counsel for the

petitioners, that the property in question, was owned and

possessed by Radhabai during her lifetime, who had executed a

Will on 12.12.998. Since Radhabai passed away on 14.02.1991,

the name of her son Govindrao Maind alone was mutated in the

revenue records on 28.03.1991. However, Govindrao Maind

himself on 31.08.2009, filed an application for mutation of the

names of the legatees as per the Will dated 12.12.1988. The

Tahsildar, Chandur Railway after making an enquiry, came to

the prima-facie conclusion that the Will complied with the

requirement of law, and therefore, by his order dated

30.09.2009 directed mutation of the names of the legatees

under the Will dated 12.12.1988. This order dated 30.09.2009,

was challenged in appeal by Panchfulabai, the daughter of 4 26.WP.1153-2019 JUDGMENT.odt

Radhabai, in which, the learned Sub Divisional Officer, Chandur

Railway by the order dated 20.05.2013 set-aside the order

dated 30.09.2009 and remanded the matter back, directing the

Tahsildar, Chandur Railway to conduct an enquiry regarding the

legal heirs of late Radhabai.

5. The learned Tahsildar, Chandur Railway on remand

by an order dated 06.11.2015, directed that the names of the

legatees under the Will dated 12.12.1988 be mutated and

Panchfulla, the respondent No.3, should approach the Civil

Court, in case, she had a claim against the Will.

6. The order of the learned Tahsildar, Chandur Railway

dated 06.11.2015, was challenged before the Sub Divisional

Officer, Chandur Railway in appeal who vide his order dated

31.12.2016, rejected the appeal. The respondent No.2, in

further appeal by his order dated 28.02.2018, allowed the

appeal by directing the mutation of the names of the legal heirs,

which order has been maintained by the Divisional

Commissioner/respondent No.1 by his order dated 23.01.2019,

rejecting the revision.

5 26.WP.1153-2019 JUDGMENT.odt

7. Mr. Joshi, learned counsel for the petitioners

submits, that in case an application for mutation is made on the

basis of a Will, the duty of the Tahsildar, Chandur Railway is

only to determine on a prima-facie basis, the existence of the

Will and its compliance with the requirements of law, and

thereafter, direct mutation, which has been done by the

Tahsildar, Chandur Railway in the present case. It is his

contention that in case the respondent No. 3 had any dispute

with the Will, the only option available to her was to file a suit

before the Civil Court laying a challenge to the Will. However

instead of doing that, the appeal was filed before the Additional

Collector/respondent No.2, who set-aside the order directing

mutation entries to be taken on the basis of the Will and

directed the mutation to be made of the names of the natural

legal heirs. He submits, that neither the respondent No. 2 nor

respondent No.3, were legally entitled, to ignore the Will or for

that matter, to decide anything regarding the legality and

validity of the Will and once the learned Tahsildar, Chandur

Railway had found the Will to be prima-facie proper, any

challenge thereto would be open only before the Civil Court by

virtue of a properly instituted suit. He therefore submits, that 6 26.WP.1153-2019 JUDGMENT.odt

the orders passed by the respondent Nos. 1 and 2, cannot be

sustained.

8. Mr. Topale, learned counsel for respondent Nos.3 &

4 submits, that though the Tahsildar, Chandur Railway by his

order dated 06.11.2015 had directed the respondent No.3 to

approach the Civil Court regarding her claim in distinction to

the Will dated 12.12.1988, the same has not been done. He

however submits, that the respondent Nos.1 and 2 are not

denuded of their authority to decide regarding the legality and

validity of the Will, and therefore, supports the orders passed by

them.

9. It is a settled position of law, that the entries in the

revenue records are only for the fiscal purpose and do not

confer any right and title upon the parties. When a Will was

propounded by the legatees before the Tahsildar, Chandur

Railway, he had merely to prima-facie consider the existence of

the document and the requirements of law in that regard as

contemplated by Section 63 of the Indian Succession Act being

satisfied. That having been done by the Tahsildar, Chandur 7 26.WP.1153-2019 JUDGMENT.odt

Railway, the entry on that basis, could not have been set-aside,

on the ground that the respondent No.3 was also claiming a

right in the property being one of the legal heir of late

Radhabai. Any such claim, raising a challenge to the Will or for

that matter, the legality and validity of the Will could only have

been decided by the Civil Court by a properly instituted suit,

which had been so directed by the learned Tahsildar, Chandur

Railway in his order dated 06.11.2015. Reliance placed on

Ramkali Vs Banmali and Another, 2021, SCC OnLine MP 359 , by

Mr. Topale, learned counsel for respondent Nos. 3 & 4, which

holds that the revenue authorities have no jurisdiction, to

decide the correctness and genuineness of Will and in case there

is a challenge, the same has to be decided by the Civil Court of

competent jurisdiction, in a suit, infact supports what has been

stated above. No doubt that in such a suit the burden would be

upon the propounder to establish the legality and validity of the

'Will'.

10. Considering the facts of the present case, in my

considered opinion, the orders dated 28.02.2018 and

23.01.2019, passed by the respondent Nos.1 and 2 cannot be 8 26.WP.1153-2019 JUDGMENT.odt

sustained, as they do not having any powers to decide the

legality and validity of the Will dated 12.12.1988. They are

therefore, quashed and set-aside and the order passed by the

learned Tahsildar, Chandur Railway dated 06.11.2015, as

confirmed by the Sub Divisional Officer, Chandur Railway in

appeal on 31.12.2016, is restored. The petition is accordingly

allowed in the above terms with no order as to costs.

11. Needless to mention, that it would be permissible

for the respondent No.3, to raise a substantive challenge to the

legality and validity of the Will before the Civil Court in a

properly instituted proceedings.

12. Rule is made absolute.

13. Pending application/s, if any, shall stand disposed of

accordingly.

( AVINASH G. GHAROTE, J.) S.D.Bhimte

Signed By:SHRIKANT DAMODHAR BHIMTE

Signing Date:04.12.2021 14:36