Guddi vs Balram Minor Thr Father Ramvilas
2021 Latest Caselaw 3779 MP

     1     THE HIGH COURT OF MADHYA PRADESH
                   Writ Petition No.5876/2015
            Guddi and another Vs. Balram and another

                 Through Video Conferencing
Gwalior, Dated:31/07/2021

         Shri N.K. Gupta, Senior Advocate with Shri SDS Bhadoriya,

Advocate for petitioners.

         Shri Ashish Shrivastava, Advocate for respondents.

         This petition under Article 227 of the Constitution of India has

been filed against the order dated 17/4/2015 passed by Board of

Revenue in Revision No.1295-Three/05, order dated 7/8/2000 passed

by SDO, Mehgaon, District Bhind in case No.28/99-2000/A.M.-

Village-Pachera (Mehgaon) and order dated 27/1/2000 passed by

Naib Tahsildar, Mehgaon in case No.31/97-98 A-6, by which the

application filed by the respondent no.2 for mutation of his name in

respect of all the agricultural land (details of survey numbers have

not been mentioned in the application filed before the Court of Naib

Tahsildar) belonging to Shivdatt on the basis of a "Will" dated

20/4/1998 has been allowed.

2.       According to the petitioners, the respondent no.1 filed an

application on 7/7/1998 for mutation of his name in respect of the

agricultural land belonging to Shivdatt on the ground that he had

executed a registered "Will" dated 20/4/1998 (the "Will" was got

registered after the death of Shivdatt) as the respondent no.1 was

residing with Shivdatt and he was looking after him. It was further
      2     THE HIGH COURT OF MADHYA PRADESH
                   Writ Petition No.5876/2015
            Guddi and another Vs. Balram and another

mentioned that Shivdatt has expired on 27/4/1998 and his cremation

was also done by respondent no.1. It was also mentioned that except

the respondent no.1, there is no other legal heir of Shivdatt.

3.       The petitioners filed an objection pleading inter alia that the

petitioner no.1 is the wife of Late Shivdatt, whereas the petitioner

no.2 (who died during pendency of this writ petition) is the daughter

of Shivdatt. Shivdatt was killed on 27/4/1998 and being the class-I

heir, they are entitled to inherit his property. It appears that the elder

brother of Shivdatt with an intention to grab the property, has

prepared a forged "Will" and has got it registered on 02/6/1998 i.e.,

subsequent to the death of testator with a solitary intention to deprive

the petitioners of their right, whereas the husband of the petitioner

no.1 had died without executing any "Will" and accordingly, it was

prayed that the petitioners have inherited the property being legal

heirs of Shivdatt and they are in possession of the same. Accordingly,

it was prayed that the application filed by the respondent no.1 may be

cancelled.

4.       It appears that the respondent no.1 filed his rejoinder and

denied that the petitioner no.1 is the widow of Shivdatt and petitioner

no.2 is the daughter of Shivdatt. It was admitted that Shivdatt was

killed. It was claimed that the petitioner no.1 is the resident of village

Dholpur, District Jalon and in the year 1992 she had come to village
      3     THE HIGH COURT OF MADHYA PRADESH
                   Writ Petition No.5876/2015
            Guddi and another Vs. Balram and another

Pachora alongwith petitioner no.2 for the purpose of doing labour

work. She was given shelter by Shivdatt and had given a separate

place in his house. The petitioner no.1 used to visit her village

Dholpur. It was denied that the petitioner no.1 was ever married to

Shivdatt and it was also denied that she had ever resided with

Shivdatt as his wife. It was further claimed that the petitioner no.1 in

order to grab the property of Shivdatt had got him killed and now she

has raised an objection by taking a false defence that she is the wife

and the petitioner no.2 is the daughter of Shivdatt. The fact that the

respondent no.2 has created a forged "Will" was denied. It was

further claimed that Shivdatt did not have any wife or children. He

used to remain sick and he was being looked after by the respondent

no.1 as he is the real nephew of Shivdatt. Even the respondent no.1

used to bear the expenses of Shivdatt and accordingly, Shivdatt

started treating respondent no.1 as his son. Thus, out of love and

affection, he had executed a "Will" on 20/4/1998 in the presence of

the witnesses.

5.       The Naib Tahsildar, Mehgaon by order dated 27/1/2000 after

recording the statements of the witnesses, rejected the objection filed

by the petitioners and allowed the application thereby mutating the

name of respondent no.1-Balram.

6.       The petitioners being aggrieved by the order of Naib Tahsildar,
      4     THE HIGH COURT OF MADHYA PRADESH
                   Writ Petition No.5876/2015
            Guddi and another Vs. Balram and another

preferred an appeal before the Court of SDO, Mehgaon, District

Bhind. The said appeal was rejected by order dated 7/8/2000.

7.       Being aggrieved by the order of SDO, Mehgaon, the

petitioners no.1 and 2 preferred an appeal before the Court of

Additional Commissioner, Chambal Division, Morena, which was

registered as Appeal No.16/2000-2001/Appeal. The said appeal was

allowed by order dated 30/6/2005 and the matter was remanded back

after adjudicating upon the suspicious circumstances attached to a

"Will".

8.       Being aggrieved by the order of Additional Commissioner, the

respondent no.1-Balram and respondent no.2-Ramvilas (respondent

no.2 A, B and C are the legal representatives of Ramvilas) preferred a

revision before the Board of Revenue and by the impugned order, the

Board of Revenue has allowed the revision and has set aside the

order dated 30/6/2005 passed by the Additional Commissioner,

Chambal Division, Morena and has upheld the order passed by the

Naib Tahsildar, Mehgaon and SDO, Mehgaon.

9.       Challenging the order passed by the Board of Revenue, it is

submitted by the counsel for the petitioners that although the appeal

was filed by the petitioners no.1 and 2 (who died during the

pendency of writ petition) before the Court of Additional

Commissioner, Chambal Division, Morena, but the petitioner no.2-
    5     THE HIGH COURT OF MADHYA PRADESH
                 Writ Petition No.5876/2015
          Guddi and another Vs. Balram and another

Ku. Sangeeta was not impleaded as a party before the Board of

Revenue. It is further submitted that it is well established principle of

law that the application for mutation of name on the basis of "Will" is

not maintainable before the revenue authorities and if a beneficiary

wants to take advantage of the "Will", whether registered or

unregistered, then he has to approach the Civil Court for declaration

of his title. It is further submitted that even otherwise, the respondent

no.1 was aged about 9 years on the day when the "Will" was

executed. However, in the rejoinder filed before the Tahsildar, it was

mentioned that it was the respondent no.1 who was bearing the

expenses of Shivdatt and the respondent no.1 was looking after the

welfare of Shivdatt, which is not possible, as the respondent no.1 was

only 9 years old. It is further submitted that the respondents had filed

certain documents before the Board of Revenue for the first time and

without recording any evidence or without remanding the matter back

for recording the evidence on the basis of additional documents

which were filed by the respondents, the Board of Revenue has relied

upon the documents filed by the respondents and has held that the

petitioner no.1 is not entitled to inherit the property of her husband

Shivdatt on the ground that she has remarried. It is further submitted

that the petitioner no.2 was alive during pendency of the revision

before the Board of Revenue and she had her share in the property,
       6     THE HIGH COURT OF MADHYA PRADESH
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             Guddi and another Vs. Balram and another

which has been conveniently ignored by the Board of Revenue.

10.       Per contra, the petition is vehemently opposed by the counsel

for the respondents. It is submitted by Shri Shrivastava that the

petitioner no.1 has married one Puttu Singh in the year 1998 and at

present she is having three children and, therefore, the Board of

Revenue has not committed any mistake in relying upon the

documents which were filed for the first time before the Board of

Revenue. However, it was submitted by Shri Shrivastava that

although the petitioner no.2 was alive at the relevant time, but by

mistake she was not impleaded as respondent before the Board of

Revenue. It is submitted that had any objection in this regard was

taken by the petitioners, then that mistake could have been corrected

before the Board of Revenue itself, but as the objection was not

raised at the earliest, therefore, now the petitioners cannot raise that

objection.

11.       Heard learned counsel for the parties.

12.       From the order of the Board of Revenue, it appears that a

specific stand was taken by the respondents that even if the petitioner

no.1 is considered to be the legally wedded wife of Shivdatt, but

since she has remarried and performed second marriage with one

Puttu Singh and is now having three children, therefore, she is not

entitled for any share in the property after her remarriage. If the
       7     THE HIGH COURT OF MADHYA PRADESH
                    Writ Petition No.5876/2015
             Guddi and another Vs. Balram and another

rejoinder which was filed by the respondents before the Tahsildar is

considered, then it is clear that the original case of the respondents

was that the petitioner no.1 is not the wife of Shivdatt and petitioner

no.2 (Ku. Sangeeta) is not the daughter of Shivdatt. However, before

the Board of Revenue the respondents took a somersault and started

claiming that in the year 1998 the petitioner no.1 has performed

second marriage with Puttu Singh and on account of her remarriage,

now she does not have any right or share in the property of Shivdatt.

Both the stands are self contradictory to each other. If the petitioner

no.1 was not the wife of Shivdatt, then there was no question of

remarriage and the question of remarriage would arise only if it is

considered that the petitioner no.1 was the legally wedded wife of

Shivdatt.

13.       Be that whatever it may.

14.       The crux of the matter is that the respondents had filed an

application under Order 41 Rule 27 of CPC before the Board of

Revenue thereby filing certain documents which were not the part of

record of the court below. Under these circumstances, the Board of

Revenue could have either recorded the evidence on his own or

should have remanded the matter to the Court of Tahsildar for

recording of evidence in the light of the additional documents /

evidence filed by the respondents before the Board of Revenue.
       8     THE HIGH COURT OF MADHYA PRADESH
                    Writ Petition No.5876/2015
             Guddi and another Vs. Balram and another

Furthermore, the respondents have not given any plausible

explanation as to why the documents which were filed for the first

time before the Board of Revenue were not filed before the Court of

Naib Tahsildar or SDO or Additional Commissioner. Order 41 Rule

27 of CPC castes a duty upon a party filing additional evidence to

establish that notwithstanding the exercise of due diligence, such

additional evidence was not within his knowledge or could not, after

the exercise of due diligence, be produced by him at the time when

the order appealed against was passed. Further order 41 Rule 27 CPC

requires that if a Court allows an additional evidence, then it shall

record the reasons for its admission. Neither the petitioners nor the

respondents have filed the order-sheets to show that what reasons

were assigned by the Board of Revenue for taking the documents on

record. However, generally the application under Order 41 Rule 27

CPC is taken up for consideration at the time of final hearing. Even

in the impugned order dated 17/4/2015 the Board of Revenue has not

clarified that by which order the additional evidence filed by the

respondents was admitted and has not given any reason in the

impugned order as to why the additional evidence produced by the

respondents was not filed before the Court at the first instance.

15.       Be that whatever it may.

16.       Order 41 Rule 28 CPC reads as under:-
       9     THE HIGH COURT OF MADHYA PRADESH
                    Writ Petition No.5876/2015
             Guddi and another Vs. Balram and another

                      "28. Mode      of    taking     additional
                evidence.- Wherever additional evidence is
                allowed to be produced, the Appellate Court may
                either take such evidence, or direct the Court
                from whose decree the appeal is preferred, or any
                other subordinate Court, to take such evidence
                and to send it when taken to the Appellate
                Court."

17.       Thus, it is clear that whenever any additional evidence is

allowed to be produced, then the Appellate Court may either take

such evidence or direct the Court from whose decree / order the

appeal has been preferred or any other subordinate Court to take such

evidence and to send it, when taken, to the Appellate Court.

18.       In the present case, admittedly the provisions of Order 41 Rule

28 CPC have not been complied with by the Board of Revenue.

Under these circumstances, this Court is of the considered opinion

that the Board of Revenue has committed a material illegality by

considering the additional evidence without following the mandatory

provisions of Order 41 Rule 28 of CPC.

19.       Further, this Court in the case of Ramkali vs. Banmali and

Another reported in 2021 SCC OnLine MP 359 has held as under:-

                ''5.................It is further submitted that this Court
                by order dated 17/9/2019 passed in the case of
                Murari and another Vs. State of M.P. in Writ
                Petition No.19089/2019 had held that the 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 a "Will" and they have a
 10   THE HIGH COURT OF MADHYA PRADESH
             Writ Petition No.5876/2015
      Guddi and another Vs. Balram and another

      remedy to approach the Civil Court for declaration
      of their title. The said order passed by this Court
      was subject to challenge in Writ Appeal
      No.1916/2019, which was dismissed by the
      Division Bench of this Court by order dated
      14/2/2020 in the case of Murari and another Vs.
      State of M.P. reported in 2020 (4) MPLJ 139.
                    *******

8. This Court by order dated 16/2/2021 passed in MP No.2692/2020 (Ranjit alias Bhaiyu Mohite vs. Smt. Nandita Singh) has held as under:-

             "(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. 11 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.5876/2015 Guddi and another Vs. Balram and another

(21) Section 178 of MPLR Code reads as under:-

"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 12 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.5876/2015 Guddi and another Vs. Balram and another

Section 178(1) of MPLR Code makes it clear as noon day that question of determination of title is beyond jurisdiction of the revenue 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."

9. Further, the similar view which was taken by this Court on the earlier occasion has also been affirmed by the Division Bench of this Court in the Writ Appeal in the case of Murari (supra). Thus, it is clear that the revenue authorities have no jurisdiction to decide the correctness and genuineness of a "Will" and if the propounder of the "Will" wants to take 13 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.5876/2015 Guddi and another Vs. Balram and another

advantage of the "Will", then he has to get his title declared from the Civil Court of competent jurisdiction.

10. It is next contended by the counsel for the petitioner that the "Will" purportedly executed by Shivcharanlal is a forged "Will".

11. So far as the contention of the counsel for the petitioner with regard to the nature of the "Will" is concerned, this writ petition has arisen out of a revenue proceeding and once this Court has held that the revenue authorities have no jurisdiction to adjudicate the correctness and genuineness of a "Will", then any observation on the genuineness of the "Will" would certainly prejudice the case of the respondents in case if they prefer a Civil Suit for declaration of their title. Even, after holding that the revenue authorities have no jurisdiction to mutate the names of respondents on the strength of a "Will", it is also not expected from this Court to make any observation on the genuineness and correctness of the "Will".''

20. There is a dispute as to whether the petitioner no.1 is the

widow of Shivdatt or not and whether petitioner no.2 (whose name

has been deleted during the pendency of this petition on account of

her death) was the daughter of Shivdatt or not. As already pointed

out, by filing the additional evidence before the Board of Revenue,

the respondents have claimed that even if the petitioner no.1 is

treated to be the legally wedded wife of Shivdatt, but still she is not

entitled for any share in the property as she has remarried in the year

1998. A self contradictory stand was taken by the respondents before

the Board of Revenue that even if it was presumed that the petitioner 14 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.5876/2015 Guddi and another Vs. Balram and another

no.1 is the legally wedded wife of Shivdatt, still she is no more

entitled for her share. Thus, the initial stand of the respondents

against petitioner no.2-Late Ku. Sangeeta that she is not the daughter

of Shivdatt also comes under a cloud. It is not the case of the

respondents that petitioner no.2-Late Ku. Sangeeta had already

expired before institution of revision before the Board of Revenue.

IA No.3989/2018 was filed for deleting the name of petitioner no.2-

Ku. Sangeeta on the ground that during the pendency of this petition,

she has expired. The fact that the petitioner no.2 expired during the

pendency of the petition was not disputed by the respondents and

accordingly, the name of petitioner no.2 was directed to be deleted by

order dated 14/1/2020. Therefore, it is clear that although the

petitioner no.1 and her daughter Ku. Sangeeta (petitioner no.2) had

filed an appeal before the Court of Additional Commissioner,

Chambal Division, Morena, but still for the reasons best known to the

respondents, they did not implead Ku. Sangeeta (petitioner no.2) as

respondent before the Board of Revenue. If the petitioner no.2-Ku.

Sangeeta is the daughter of Shivdatt, then she has a share in the

property being the class-1 heir of Shivdatt and, therefore, she was a

necessary party and non-impleading of Ku. Sangeeta before the

Board of Revenue has vitiated the proceedings of Revision No.1295-

Three/05. On this ground also, the order dated 17/4/2015 passed by 15 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.5876/2015 Guddi and another Vs. Balram and another

the Board of Revenue in Revision No.1295-Three/05 is liable to be

set aside.

21. Accordingly, this Court is of the considered opinion that:-

i- the respondent no.1 was only 9 years of age at the time

of execution of Will by Shivdatt and, therefore, the

contention of the respondents in the rejoinder that it was

the respondent no.1 who was looking after Shivdatt and

he was bearing the expenses of Shivdatt cannot be

accepted. There is nothing on record that how the

respondent no.1, who was only 9 years of age, can bear

the expenses of Late Shivdatt and how he can look after

him;

ii- the respondents themselves have taken a self

contradictory stand with regard to the status of petitioner

no.1;

iii- although Late Ku.-Sangeeta (petitioner no.2, who died

during the pendency of the petition) had also challenged

the order passed by the SDO by filing an appeal before

the Court of Additional Commissioner, Chambal

Division, Morena, but for the reasons best known to the

respondents, she was not impleaded as a party before the

Board of Revenue;

16 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.5876/2015 Guddi and another Vs. Balram and another

iv- if Late Ku. Sangeeta is the daughter of Shivdatt, then

being a class-1 heir, she is entitled for her share and,

therefore, she is not only the necessary party before the

Board of Revenue, but as she had challenged the order

of SDO, therefore on this count she should have been

impleaded as respondent.

v- although respondents are right in making the submission

that since no such objection with regard to non-joinder

of necessary party was raised before the Board of

Revenue otherwise they could have corrected their

mistake, but as Ku. Sangeeta had challenged the order of

SDO before the Additional Commissioner, therefore, the

revision itself was not properly drafted and the question

as to whether any opportunity should have been granted

to the respondent does not arise.

vi- This Court in the case of Ramkali (supra) has already

held that the Revenue Courts have no jurisdiction to

entertain an application for mutation on the basis of a

"Will" and if the beneficiary of a "Will" wants to take

advantage of a "Will", then he has to approach the Civil

Court for establishing his title;

22. Therefore, if the non-joinder of necessary party is considered 17 THE HIGH COURT OF MADHYA PRADESH Writ Petition No.5876/2015 Guddi and another Vs. Balram and another

in the light of the judgment passed by this Court in the case of

Ramkali (supra), this Court is of the considered opinion that in view

of the above-mentioned infirmities, the order dated 17/4/2015 passed

by the Board of Revenue cannot be given the stamp of approval and

accordingly, it is quashed.

23. With aforesaid, the petition is hereby allowed.

(G.S. Ahluwalia) Judge Arun*

ARUN KUMAR MISHRA 2021.08.02 19:37:32 +05'30'