Ramesh Singh vs Hotam Singh
2021 Latest Caselaw 2418 MP

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                      THE HIGH COURT OF MADHYA PRADESH
                           M.P. No.2989/2020
                     (Ramesh Singh & Anr. vs. Hotam Singh & Ors.)

Gwalior, Dated : 16.06.2021

      Heard through videoconferencing.

      Shri Rohit Bansal along with Shri Abhishek Singh Bhadoriya,

counsel for the petitioners.

      Shri L.P. Shrivastava, counsel for the respondent No.1.

Shri Ravindra Singh, counsel for the respondent No.2.

With the consent of the parties, the matter is finally heard through

videoconferencing.

Challenge being made to the order dated 21.10.2020 passed by the

Additional Commissioner Gwalior Division dismissing the appeal of the

petitioner which was filed against the order dated 17.06.2019 passed by

SDO Bhitarwar, whereby confirming the order dated 25.10.2018 passed

by the Tahsildar regarding for mutation of the respondent No.1 which is

claimed on the basis of the will executed by mother Vaikunthi Bai.

It is alleged that the Will was stated to be disputed by the

petitioners and with respect to the same the legal position is settled by

this Court in various judgments one of being in M.P. No. 23/21 dated

16.02.2021 (Kusum Bai and another Vs. Ummedi Bai ), wherein this

Court has passed a detailed order considering the judgments passed by

the Hon'ble Supreme Court. It is argued that the mother of the petitioners

Vaikunthi Bai and respondents No. 1 to 3 were recorded Bhumiswami

and possession holder of the land bearing survey No. 1138 area being

1.535 hectare situated in village Pipraua, Tahsil Chinor, Distt. Gwalior

which was purchased in the name of Vaikunthi Bai after the sale of land

THE HIGH COURT OF MADHYA PRADESH M.P. No.2989/2020 (Ramesh Singh & Anr. vs. Hotam Singh & Ors.)

which was belonging to the joint family Vaikunthi Bai passed away on

25.6.2018. Thereafter, a Will was got prepared in favour of respondent

No.1 Hotam Singh. On the basis of which, the respondent No.1 moved an

application for mutation of his name in place of deceased Vaikunthi Bai

despite of the fact that all other legal heirs of Vaikunthi Bai were alive.

The learned Tahsildar has directed for recording the name of respondent

No.1 in place of the deceased Vaikunthi Bai and passed a final order on

25.10.2018. Thereafter, the petitioners have also filed an application for

mutation of name of all the legal heirs Ramesh Singh, Dharamveer

Singh, Hotam Singh, Kapoori Bai and Susheela Bai in place of deceased

Vaikunthi Bai and at that time which was refused to be entered into by

the Tahsildar pointing out the fact that on earlier occasion the mutation

has already done on the basis of the Will produced by Hotam Singh and

the application was rejected. After getting information with respect to the

earlier mutation proceedings, the order dated 25.10.2018 was put to

challenge by the petitioners before the SDO, but the appeal was

dismissed. Thereafter, the challenge was made to the Additional

Commissioner, but the same was again dismissed. It is submitted that

once the Will in question is disputed by the other family members then

the Revenue Authorities are having no right to get the mutation done on

the basis of the alleged Will. It is for the civil courts to consider the

genuineness of the Will and the person claiming the mutation on the

basis of the Will is required to get the probate from the concerning court

and get the Will examined by the civil courts. The Division Bench of this

THE HIGH COURT OF MADHYA PRADESH M.P. No.2989/2020 (Ramesh Singh & Anr. vs. Hotam Singh & Ors.)

Court in W.A. No.1916/2019 vide order dated 14.02.2020 (Murari and

Another Versus State of MP and Others) has dealt with the same

proposition and it was held that it is only the civil courts jurisdiction to

check the genuineness of the Will. Similar propositions have been laid

down in Dharamveer Singh & Ors. vs. Rustam Singh & Ors., 2021 (1)

RN 25, Ajay Singh vs. Smt. Rama Bai & Ors. 2021 (1) RN 28,

Rasool Khan (dead) thr. Lrs. and Ors. vs. Abdul Aziz Khan, 2021 (1)

RN 174 and Murari and another Vs. State of M.P. and others

reported in 2020 (4) MPLJ 139. In such circumstances, the impugned

orders are unsustainable and deserves to be set aside.

Per contra, counsel for the respondents have opposed the

contention and have submitted that the authorities have issued notices

and followed the procedure as required for mutation of the land in

question provided under 110 of MPLRC and being satisfied with the

genuineness of the Will has passed the orders for mutation. But they

could not dispute the proposition that the revenue authorities have no

jurisdiction to check the genuineness of the Will, is being held by the

courts recently in large number of judgments. In such circumstances, the

judgments passed by the Division Bench in Murari's case (supra) as

well as by this Court in Kusum Bai's case (supra) is applicable to the

facts and circumstances of the present case. The relevant portion of the

judgment reads as under :-

"6. The controversy involved in the present matter relates to title based on will, which is purely subject matter of Civil Court and can only be decided by the Civil Court, with the help of evidence adduced before it, by examining the attesting

THE HIGH COURT OF MADHYA PRADESH M.P. No.2989/2020 (Ramesh Singh & Anr. vs. Hotam Singh & Ors.)

witnesses. It is also held in Rajinder Singh and Another vs. Financial Commissioner (decided by Punjab & Haryana High Court in Writ Petition No. 3821/2011) that validity of will can be decided by the Civil Court, which is the exclusive domain of Civil Court and this cannot be decided by the Revenue Courts."

Accordingly, considering the settled legal proposition, the

impugned orders are unsustainable and are hereby set aside. The

judgments passed by the Division Bench as well as by this Court in the

aforesaid cases are applicable to the facts and circumstances of the

present case with full force. The respondents who are claiming the

benefit of mutation on the basis of the Will are at liberty to get probate of

the Will from the competent civil courts and thereafter get their names

mutated in the revenue records.

With the aforesaid observations, the petition is allowed and

disposed of. No order as to cost.

(VISHAL MISHRA) JUDGE van SMT VANDANA VERMA 2021.06.18 18:18:56

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