Ku. Mohita Patel vs Ram Singh
2021 Latest Caselaw 2920 MP

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         THE HIGH COURT OF MADHYA PRADESH
                     MP-532-2018
                     (KU. MOHITA PATEL Vs RAM SINGH)


                    Through Video Conferencing

Gwalior, Dated : 02/07/2021

      Shri N.K. Gupta, Senior Counsel with Shri Sanjay Sharma and

Shri Samar Ghuraiya, Counsel for petitioner.

      Shri Amit Lahoti, Counsel for respondent.

This petition under Article 227 of the Constitution of India has

been filed against the orders dated 12.01.2017 and 31.10.2017 passed

by Board of Revenue in Revision No.2360-,d/2016 and Review

No.713-,d/2017.

The necessary facts for disposal of the present petition in short

are that the land in dispute i.e. khasra No. 405/1 area 4.298 hectare

situated at village Dholkhedi Patwari Halka No.34 Tahsil and District

Vidisha belongs to one Dilip Singh.

The petitioner is the sister of Akhilesh Patel. It is the case of

petitioner that Dilip Singh had executed a will in favour of Akhilesh

Patel and Akhilesh Patel in his turn executed a will in her favour. It is

submitted that although the review was filed before the Board of

Revenue by Akhilesh Patel but now Akhhilesh Patel is no more.

It is the case of petitioner that Akhilesh Patel after the death of

Dilip Singh filed an application for mutation of his name on the basis

of "will". An objection was raised by respondent to the application

THE HIGH COURT OF MADHYA PRADESH MP-532-2018 (KU. MOHITA PATEL Vs RAM SINGH)

filed by Akhilesh Patel. The application filed by Akhilesh Patel was

rejected and objection filed by respondent was allowed and the name

of respondent was directed to be mutated in revenue records.

Thereafter Akhilesh Patel preferred an appeal before SDO Vidisha

along-with an application u/s. 5 of Limitation Act. The delay was

condoned by appellate authority by order dated 10.06.2016.

The respondent preferred a revision before the Board of

Revenue against the interim order dated 10.06.2016 by which the

delay was condoned by SDO Vidisha. The said revision was allowed

by Board of Revenue by order dated 12.01.2017 passed in case No.

Revision No. 2360-,d/2016 and an interim order dated 10.06.2016

by which the delay in filing the appeal was condoned, was set-aside.

Being aggrieved by the order passed by the Board of Revenue,

Akhilesh Patel preferred a review which too has been dismissed by

order dated 31.10.2017 passed in review No. 713-,d/2017 (review).

The counsel for the parties fairly conceded that this Court in

the case of Ramkali Vs. Banmali reported in 2021 SCC online MP

359 and by order dated 16.02.2021 in M.P. No. 2692/2020 (Ranjit

alias Bhaiyu Vs. Smt. Nandita Singh and Ors.) has held that

revenue authorities have no authority to mutate the name of person

who is claiming his title on the basis of a "will". It has also been held

THE HIGH COURT OF MADHYA PRADESH MP-532-2018 (KU. MOHITA PATEL Vs RAM SINGH)

that if a beneficiary wants to claim his title over the property on the

basis of a "will" then he has to approach the civil Court for the said

purpose. It is further submitted that the Division Bench of this Court

in the case of Murari Vs. State of M.P. reported in 2020 (4) MPLJ

139 has already upheld the view taken by this Court.

However, it is submitted by counsel for the parties that the

respondent as well as Akhilesh Patel and the petitioner are related to

each-other. The petitioner by referring to the "will" executed in

favour of the respondent which has been placed on record, submitted

that it is clear from the "will" that Dilip Singh had three wives, six

sons and ten daughters. The respondent as well as Akhilesh Patel

represent different branches of Dilip Singh from different wives. It is

further submitted that even otherwise by the so called "will" executed

by Dilip Singh in favour of respondent, a small portion of the

property was bequeathed to him. The respondent by manipulating the

record, has got his name mutated in respect of larger portion of

property which was never bequeathed to him.

Per Contra, it is not disputed by counsel for respondent that

Dilip Singh had three wives, six sons and ten daughters.

Under these circumstances, this Court is of the opinion that if

any of the party wants to take advantage of the "will" executed by

THE HIGH COURT OF MADHYA PRADESH MP-532-2018 (KU. MOHITA PATEL Vs RAM SINGH)

Dilip Singh, then he has to approach the Civil Court for declaration

of his/their title. However, since Dilip Singh has not died issue-less

and has been survived by his legal heirs and it is also well established

principle of law that even illegitimate child has share in the property,

therefore, it is clear that names of all the legal heirs should be

mutated.

Under these circumstances, when arguable questions of facts

and law are to be decided in appeal pending before the SDO, this

Court is of the considered opinion that the Board of Revenue should

not have interfered with the order dated 10.06.2016 by which the

delay in filing the appeal was condoned. Further when the competent

authority has exercised it's discretion by condoning the delay, then

such discretion should not be overturned except in exceptional

circumstances.

Accordingly, in the light of judgment passed by this Court in

case of Ramkali (Supra), Ranjit (Supra) & Murari (Supra), order

dated 12.01.2017 passed in case number Revision No. 2360-,d/2016

as well as order dated 31.10.2017 passed in Review No. 713-,d/2017

passed by the Board of Revenue are hereby set-aside. The order dated

10.06.2016 passed by SDO Vidisha is hereby restored.

The SDO Vidisha is directed to ignore the "wills" relied upon

THE HIGH COURT OF MADHYA PRADESH MP-532-2018 (KU. MOHITA PATEL Vs RAM SINGH)

by both the parties and SDO Vidisha is directed to mutate the names

of all the legal heirs of Dilip Singh including all his sons and

daughters.

If any of the party wants to establish their title on the strength

of the "will" executed by Dilip Singh or Akhilesh Patel, then they are

free to approach the Civil court for declaration of title.

It is needless to say that in case if civil suit is filed, then the

mutation done in favour of all the legal heirs shall be subject to

outcome of the said civil suit.

With aforesaid observations, this petition is finally disposed of.

(G.S. Ahluwalia) Judge

Aman AMAN TIWARI 2021.07.06 20:45:44 +05'30'