Anand Choudhary vs The State Of Madhya Pradesh
2023 Latest Caselaw 16545 MP

                                    1


       THE HIGH COURT OF MADHYA PRADESH
                  AT JABALPUR
                          W.P. No.3499 of 2022
      (ANAND CHOUDHARY Vs THE STATE OF MADHYA PRADESH AND OTHERS)



Dated : 07.10.2023
     Dr. (Smt.) Rashmi Pathak - Advocate and Shri Pranay Pathak -
Advocate for the petitioner.
      Shri Deepak Tiwari - Panel Lawyer for respondents No.1 to 4.
      Shri Naman Nagrath - Senior Advocate with Shri Utkarsh Kumar
Shankar - Advocate and Shri Sanjiv Kumar Mishra - Advocate for
respondent No.5.
__________________________________________________________
Reserved on: 17.07.2023
Pronounced on: 07.10.2023
This petition having been heard and reserved for orders, coming on for
pronouncement this day, the Court pronounced the following:
                               ORDER

Heard.

2. This petition is filed under Article 226/227 of the Constitution of India seeking to quash the order dated 12.01.2022 passed by respondent No.2 and also order dated 13.12.2021 passed by respondent No.3 and further seeking to quash all subsequent proceedings being illegal and without jurisdiction.

3. The succinct portrayal of the facts is as under:-

(i) An application under Section 109 and 110 of M.P. Land Revenue Code, 1959 (in short "Code, 1959") was filed in respect of the land situated at Mauja Rohona, Tehsil and District Hoshangabad

comprised in Khasra No.11, 124/1, 124/2, 135/1, 137/1, 178/1, 258, 272/1, 293, 294, 416 total area 23.036 hectare, which is said to be disputed land. In revenue records, the said land was originally recorded in the name of Krishnadas s/o Purnachand and three daughters of Purnachand namely Parwati Bai, Uma Bai and Prabhawati Bai.

(ii) Out of said land, Prabhawati Bai w/o. Harsh Mukharjee has executed a Will bequeathing her one-fourth share in the said property vide Will dated 28.08.2014 which was duly got registered. On 29.04.2015. Prabhawati breathed her last and as such application was moved for recording the names in the revenue record on the basis of will dated 28.08.2014.

(iii) The Court of Tehsildar vide order dated 13.10.2020 rejected the application of mutation finding that the land was joint and ancestral property, therefore, the question of title was involved.

(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.

4. The principal thrust of challenge is that when Tehsildar has rejected the application of mutation on the ground that sanctity of the Will cannot be determined by the revenue authority, there was no reason for entertaining the application by SDO and its approval by the Additional Commissioner and as such they have entered into the field determining the question of title by holding that Will dated 28.08.2014 is proper.

5. Learned counsel for the petitioner sanguinely submitted that there were seven record holders and their names were recorded in the concerning land records since long but without affording any opportunity to the record holders, impugned order was passed by SDO which is definitely hit by the principle of natural justice. Further, it was submitted that the Will produced by respondent No.5 was forged one but without considering that aspect, the revenue authorities i.e. SDO and Additional Commissioner acted illegally in allowing the application of mutation whereas the said question could have been adjudicated by the Civil Court. Pinpointing the settled legal position already put to rest, learned counsel for the petitioner submitted that mutation cannot be

made on the basis of Will and therefore Tehsildar had rightly rejected the application. To reinforce, she placed reliance on the decision of the Supreme Court rendered on 06.09.2021 in SLP (Civil) No.13146/2021 (Jitendra Singh v. The State of Madhya Pradesh & Ors.) wherein it has been held that mutation of name of a beneficiary on the basis of Will is not permissible. She also relied upon decisions of this Court in W.P.No.11871/2021 (Rajkumar Sharma & Ors. v. Manjesh Kumar) and M.P.No.23/2021 (Kusum Bai and Anr. v. Ummedi Bai).

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.

7. Indeed, on meticulous perusal of the decisions placed before this Court, I find that the view expressed therein are distinct.

8. To demystify, I feel it comfortable to make a listicle / parawise differentiation, as under:-

(a) In M.P.No.6597/2019 (Dr. Rajdeep Kapoor v. Mohd. Sarwar Khan) decided by order dated 06.01.2021 the Court has found that the mutation can be effected on the basis of Will. An SLP preferred against this order i.e. SLP No.1766/2021 decided on 11.02.2021 with a

direction to decide the suit expeditiously. Meaning thereby, the view taken by the High Court remained undisturbed.

(b) In W.P.No.2578/2022 (Geeta Paliwal & others v. Sitaram and others), an order was passed on 15.03.2023 taking a view that mutation cannot be effected on the basis of Will.

(c) W.P.No.16920/2021 (Lokmani Jain, supra) decided vide order dated 22.10.2021 taking a view that mutation can be effected on the basis of Will. Countering such order, an appeal i.e. W.A.No.1174/2021 was filed, which was admitted by the Division Bench vide order dated 16.12.2021 and also issued interim direction to the parties to maintain status quo with regard to the entries in the revenue records.

(d) W.P.No.9755/2021 (Late Shri Quazi Salauddin & Ors. v. The State of M.P. & Ors.) decided on 07.07.2023 taking a view that mutation can be effected on the basis of Will.

(e) M.P.No.4708/2023 (Smt. Urmila v. Kriparam & another) decided on 25.08.2023 taking a view that mutation cannot be effected on the basis of Will and held that the view taken by this Court in Lokmani Jain (supra) [W.P.No.16920/2021] is per incuriam because the Court has not considered the judgment of Supreme Court in re Jitendra Singh (supra). Albeit, the Supreme Court, in my opinion, in the case of Jitendra Singh (supra) affirmed the order passed by the High Court, however in the said order of Supreme Court, Rules, 2018 were not considered. It appears that the same was done in ignorance to the applicable rules and as such the view of the Supreme Court cannot be said to be holding the field and has no binding precedent.

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.

11. While dealing with the subject in question as to whether a revenue authority is authorized in law to pass an order of mutation on the basis of a Will, a reference is necessarily to be made to the substituted Sections 109 and 110 of the Code, 1959 made by Madhya Pradesh Act No.23 of 2018 and the Rules, 2018 framed under clause (xxiii) of Subsection (2) of Section 258 read with Section 109 and 110 of the Code, 1959 which were published in M.P. Rajpatra dated 04.01.2019. Under Section 109 ibid a person lawfully acquiring any right or interest in land is required to report his acquisition of such right within six months from the date of such acquisition in the form which has been prescribed. Under Rule 3(1) of 2018 Rules report of a right or interest acquited in a land by a person under subsection(1) of Section 109 shall be made in Form 1, in case of acquisition of Bhumiswami right or interest. Para 4 of such form is quoted hereinunder:-

"4. Mode of Acquisition of Bhumiswami right/interest:-

S.    Mode                 Required Document (Self attested      Please tick


No                           copies to be attached)                      (right mark) if
.                                                                        attached

1.   By inheritance          1. Death Certificate of suitable proof of
                             death of the deceased Bhumiswami.
                             2. Family tree/List of heirs and their
                             shares

2.   By will                 Will

3.   By purchase             Registered Sale Deed

4.   By gift                 Registered Gift Deed

5.   By exchange of land     Registered deed of exchange

6.   By decree of Court      Decree of the Court

7.   By land acquisition     Award passed

8.   By land allotment       Order of the land allotment

9.   By renouncing claims in Release deed
     land

10. By any other mode (not   Relevant document
    mentioned above)

The aforesaid provisions are mandatory in nature. In face of such provisions, it can legitimately be held that the revenue authority mentioned in the provision has the power and jurisdiction to effect a mutation on the basis of the Will. It is however a different matter that in case of dispute or contest as regards the validity and enforceability of the Will, a revenue authority may direct the person concerned to approach the civil court for proper adjudication and an entry as regards mutation would be made only after the decision of the civil court, but to say that mutation on the basis of Will is not altogether permissible cannot be said to be correct.

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. In the said decision, sections 109 and 110 of the Code, 1959 as also Rules, 2018 wee not referred and therefore there was no occasion for the Supreme Court to interpret the said statutory provisions. The judgment of the Supreme Court cannot be referred to or relied upon for the purposes which it did not decide. In this view of the matter, the power of revenue court to effect mutation on the basis of Will flows from the statutory provisions, as mentioned above, but in case of dispute, a person can be directed to seek his remedy in a civil court by filing title suit.

13. Obviously, an ambiguity has drifted to the surface. inasmuch as, in M.P.No.4708/2023 (supra) the view expressed by the coordinate Bench holding my view (in W.P.No.16920/2021) per incuriam that too on the fulcrum of judgment of the Supreme Court in the case of Jitendra Singh (supra), although the view of Supreme Court has no binding effect for the reason elaborately set-forth that the Supreme Court has not taken note of Rules, 2018.

14. In the given scenario, taking strength of the law laid down by the Special Bench of this Court in re Jabalpur Bus Operators Association and others v. State of M.P. and others (2003) 1 MPLJ

513 holding that in case of conflict between two decisions by the equal strength of Bench, matter can be referred to larger Bench, I deem it apposite to seek for answer of the following question by the larger Bench:-

"As to whether, Tehsildar can reject the application of mutation, at threshold, on the ground that it is based upon 'Will' taking aid from the decisions previously rendered without considering the provisions of Rules viz. Madhya Pradesh Bhu-

Rajsav Sanhita (Bhu-Abhilekhon Mein Namantaran) Niyam, 2018 framed by the State Government vis-a-vis mutation."

15. In such circumstance, I request the Registrar (Judicial) to place the matter before Hon'ble The Chief Justice for constituting a larger Bench to answer the above referred question.

16. Adjourned sine die awaiting answer by the larger Bench.

(SANJAY DWIVEDI) JUDGE

sudesh SUDESH KUMAR SHUKLA 2023.10.07 15:19:30 +05'30'