Madhya Pradesh High Court
Ramsakhi vs Mahesh Kumar on 14 October, 2024
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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1 M.P. No. 3952/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 14th OF OCTOBER, 2024
MISC. PETITION No. 3952 of 2024
RAMSAKHI
Versus
MAHESH KUMAR AND OTHERS
Appearance:
Shri Janaklal Soni-
Soni Advocate for petitioner.
Shri Akhilesh Kumar Jain-
Jain Advocate for Caveator.
ORDER
This petition under Article 227 of Constitution of India has been
filed seeking the following reliefs:-
reliefs:
(i) To call for the relevant record pertaining to
the subject matter for kind perusal of this Hon'ble
Court..
(ii) To issue a writ in the nature of certiorari for
quashing the order impugned dt. 15.2.24 Ann.P/1
passed by the Upper Commissioner Sagar Division,
Sagar M.P. in the matter of Case No. 626/A6/2016
626/A6/2016-
17 appeal filed under Section 44 (2) of MPLR Code
1959 as well the order dt. 29.9.10 passed by the
Tahsildar in Case No. 29/A-6/2009-10
29/A 10 with regard
to the land Kh.No.50/1 area 1.173 Hec on the basis
of will dt.17.11.08 upholding the order dt. 27.9.16
passed in case No. 113/Appeal/2012-13
113/Appeal/2012 13 by the SDO
(Rev) Rajnagar Distt: Chhatarpur as per Ann. P/2
maintaining the staus quo over the land in question
and revenue record.
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(iii) Any other relief which this Hon'ble Court
deems fit and proper under the facts and
circumstances of the case may also be passed
together cost of the petition.
2. It is submitted by counsel for petitioner that on the basis of Will
purportedly executed by late Smt. Pyari Bai, the respondents ffiled an
application for mutation of their names. The Tehsildar, Rajnagar,
District Chhatarpur by order dated 29.09.2010 passed in case No. 29/A
29/A-
6/2009-10,
10, allowed the said application and the names of the
respondents were mutated on the basis of so called Will executed by
Late Smt. Pyari Bai.
3. Being aggrieved by the said order, the petitioner preferred an
appeal which was registered as Revenue Case No. 113/Appeal/2012
113/Appeal/2012-13
and the SDO, Rajnagar, District Chhatarpur by order dated 27.09.2016
allowed the appeal
eal and order dated 29.09.2010
29.09.2010 passed by Tehsildar,
Rajnagar was set aside and it was directed that the names of Bhagwan
Das, Ramswaroop and Ramsakhi (petitioner) be recorded in the revenue
records being the legal heirs of Late Smt. Pyari Bai.
4. Being aggrieved
rieved by the said order, respondents preferred an
appeal which has been allowed by Additional Commissioner, Sagar
Division, Sagar by order dated 15.02.2024 passed in Appeal No. 626/A
626/A-
6/2016-17.
5. Challenging the order passed by Additional Commissioner, S
Sagar
Division, Sagar, it is submitted by counsel for petitioner that Division
Bench of this Court in the case of Hariprasad Bairagi Vs.
Others reported in 2022 (1) MPLJ 414 has held
Radheshyam and Others,
that Rules 24 and 32 of mutation Rules do not authorized the revenue
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authorities to go into question of title and decide title by leading
evidence in proceedings. It is submitted that the Supreme Court in the
case of Jitendra Singh v. State of Madhya Pradesh by order dated
06.09.2021 passed in SLP (civil) No.13146/2021 has held that the
mutation proceedings are only for fiscal purposes and the genuiness of
the Will cannot be adjudicated by the Revenue Courts. It is further
submitted that this Court in the case of Anand Kumar Jain And
Jai and Others passed in M.P.
Another Vs. Chandra Kumar Jain
No.4458/2023 decided on 16th of February, 2024 has also taken the
same view.
6. Per contra,, the petition is vehemently opposed by counsel for
counsel for the respondents. It is submitted by counsel for respondents
that the mutation order was set aside on the ground of violation of
Section 165 (7-b)) of MPLR Code.
Code. It is submitted that since the Will has
been executed in favour of her sons,, therefore, it cannot be said that the
Additional Commissioner, Sagar Division, Sagar com
committed any
illegality.
7. Heard learned counsel for parties.
8. The Supreme Court in the case of Jitendra Singh (supra) has
held as under:-
"6. Right from 1997, the law is very clear. In
the case of Balwant Singh v. Daulat Singh
(D) By Lrs., reported in (1997)
(1997) 7 SCC 137,
this Court had an occasion to consider the
effect of mutation and it is observed and held
that mutation of property in revenue records
neither creates nor extinguishes title to the
property nor has it any presumptive value on
title. Such entries
entries are relevant only for the
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purpose of collecting land revenue. Similar
view has been expressed in the series of
decisions thereafter.
6.1 In the case of Suraj Bhan v. Financial
Commissioner, (2007) 6 SCC 186, it is
observed and held by this Court that an entry
in revenue records does not confer title on a
person whose name appears in record record-of-
rights. Entries in the revenue records or
jamabandi have only "fiscal purpose", i.e.,
payment of land revenue, and no ownership is
conferred on the basis of such entries. It is
further observed that so far as the title of the
property is concerned, it can only be decided
by a competent civil court. Similar view has
been expressed in the cases of Suman Verma
v. Union of India, (2004) 12 SCC 58;
Faqruddin v. Tajuddin
Tajuddin (2008) 8 SCC 12;
Rajinder Singh v. State of J&K, (2008) 9 SCC
368; Municipal Corporation, Aurangabad v.
State of Maharashtra, (2015) 16 SCC 689; T.
Ravi v. B. Chinna Narasimha, (2017) 7 SCC
342; Bhimabai Mahadeo Kambekar v. Arthur
Import & Export Co., (2019)
(2019) 3 SCC 191;
Prahlad Pradhan v. Sonu Kumhar, (2019) 10
SCC 259; and Ajit Kaur v. Darshan Singh,
(2019) 13 SCC 70."
9. The Division Bench of this Court in the case of Hariprasad
Bairagi (supra) has held as under:-
under:
"9.
9. Appellant has raised the ground of application of
Chapter IV (Mutations in the Khasra) of Rules
Regarding Record of Rights framed under the
provisions of MPLRC in which he placed reliance
over Rule 24 and 32. Relevant rules are reproduced
hereinbelow for ready reference :-
:
"24. The Patwari shall maintain a register in
Form E in which he shall enter villagewise
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every change in ownership of land due to
transfers by registered deeds, inheritance,
survivourship, bequest or lease reported to him
under section 109 or which come to his notice
from intimations received from Gram
Panchayat or from any other source.
32. Disputes shall be decided summarily by the
Tahsildar on the basis of title and not
possession. Any transfer by a person whose
name is not recorded in the Khasra shall not
be admitted in mutation by the Tahsildar. The
order shall contain the names of the parties
and witnesses and a brief summary of the
evidence produced by either side together with
the Tahsildar findings thereon."
These rules are provided in Chapter IV of said Rules
which deals regarding Mutations in the Khasra
Khasra. On
close scrutiny, it appears that it does not deal in
respect of ouster of jurisdiction of Civil Courts from
adjudication of Title. It only talks about maintenance
of register by Patwari in which every change in
ownership
wnership of land due to various modes of Transfers
gets recorded and other rules indicate the mechanism
for Recording such Rights.
10. So far as Rule 32 is concerned, it does not talk
about disputes arising out of respective rights of
parties but it contemplates
contemplates disputes in respect of
recording entries in Khasra while undertaking
mutation proceedings. Therefore, summary enquiry
by Tahsildar is being envisaged.
11. Rules 24 and 32 of Rules Regarding Record of
Rights (under M. P. Land Revenue Code) do not
contemplate
template adjudication of title by Tahsildar. It is
meant for recording "Consequence of Adjudication"
and "Transfer of Ownership" for mutation purpose.
Summary proceedings as contemplated in Rule 32
are only for the purpose of recording of rights of
parties.. It nowhere, gives authority to Tahsildar to go
into the question of title and decide the title by
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leading evidence in the proceedings. Tahsildar on his
own accord cannot record evidence and decide the
title arising out of Will. It is the domain of Civil
Courts only and understandably so because Civil
Court has all necessary tools of adjudication like
proper pleadings, summoning of witnesses, recording
of evidence, marshaling and appreciation of evidence
and other ancillary mechanism along with trained
judicial
icial minds. Full Bench of this Court in the case of
Ramgopal Kanhaiyalal vs. Chetu Batte Batte, 1976
M.P.L.J. (F.B.) 325 AIR 1976 MP 160 categorically
held in somewhat similarly pleaded facts as under:
under:-
"Determination of the question of title is the
province of the Civil Court and unless there is
any express provision to the contrary,
exclusion of the jurisdiction of the Civil Court
cannot be assumed or implied. The scheme of
the Code consistently preserves the jurisdiction
of the Civil Court to decide questions of title
and that jurisdiction is not excluded."
The Full Bench of this Court taken into account
sections 250 and 257 of MPLRC while considering
this aspect. Decision of Full Bench of this Court is
found to be a good law by Hon'ble Apex Court in the
case of Rohini Prasad and ors. vs. Kasturchand and
anr., AIR 2000 SC 1283.
12. Recently, in the case of Murari and anr. vs. State
of M. P. and ors., 2020(4) M.P.L.J. 139 coordinate
Division Bench of this Court held that 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 Will if
one party approaches to it because they have a
remedy to approach the Civil Court for declaration of
their title.
13. Similarly,
Similarly, learned writ Court does not falter when
it mandates that any proceedings between the parties
as contemplated under section 31 of MPLRC does
not take into its ambit the question of adjudication of
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title of parties on the basis of a Will. It contemplates
a situation where application for mutation is a
proceeding where all legal heirs are brought on
record after the death of owner of the agriculture
holding. It does not contemplate adjudication of title.
Therefore, on this count also, learned writ Court is
right in its approach while relegating the parties to
the civil Court, if they desire so, to get the Will tested
on the altar of evidence to be led in civil suit before
competent civil Court."
Court.
10. This Court in the case of Anand Kumar Jain (supra) has held as
under:-
"16. There is no doubt that a title can be acquired
by virtue of Will and once the title can be acquired,
then the name can also be mutated in the revenue
records irrespective of fact as to whether there is any
rule in that regard or not? Even otherwise as per
Niyam, 2018, the names can be mutated on the basis
of Will.
17. It is the case of petitioner that in case if
somebody is aggrieved by Will, then he has to file a
civil suit challenging the Will. The aforesaid
submission made by counsel
counsel for applicant cannot be
accepted. If somebody wants to take advantage of a
document, then first of all, he has to prove the same
in accordance with law. Sections 67 and 68 of
Evidence Act prescribe the requirements and nature
of proof which must be satisfied
satisfied by the parties, who
relies on a document in the Court of law.
18. It is well established principle of law that
party propounding a Will or otherwise making a
claim under a Will is under obligation to prove the
document. Unlike other document Will is a document
which speaks from the death of testator and the
testator, who has already migrated to the other world
cannot appear and depose as to whether he has
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executed such document or not? The propounder is
required to show by satisfactory evidence that W Will
was signed by testator, that testator at the relevant
time was in a sound and disposing state of mind, that
he understood the nature and effect of dispositions
and had put his signature on the document of his own
volition.
19. Furthermore, Will may be surrounded by
suspicious circumstances and burden is on the
propounder of the Will not only to prove the
document but to remove all the suspicious
circumstances. The Supreme Court in the case of H.
Venkatachala Iyengar v. B.N. Thimmajamma and
others reported
rep in AIR 1959 SC 443 has held as
under:
"
"18. What is the true legal position in
the matter of proof of wills? It is well
well-
known that the proof of wills presents a
recurring topic for decision in courts and
there are a large number of judicial
pronouncements on the subject. The
pronouncements
party propounding a will or otherwise
making a claim under a will is no doubt
seeking to prove a document and, in
deciding how it is to be proved, we must
inevitably refer to the statutory
provisions which govern the proof of
documents. Sections 67 and 68 of the
documents.
Evidence Act are relevant for this
purpose. Under Section 67, if a
document is alleged to be signed by any
person, the signature of the said person
must be proved to be in his handwriting,
and for proving such a handwriting under
Sections 45 and 47 of the Act the
opinions of experts and of persons
acquainted with the handwriting of the
person concerned are made relevant.
Section 68 deals with the proof of the
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execution of the document required by
law to be attested; and it provides
provides that
such a document shall not be used as
evidence until one attesting witness at
least has been called for the purpose of
proving its execution. These provisions
prescribe the requirements and the nature
of proof which must be satisfied by the
party who relies on a document in a court
party
of law. Similarly, Sections 59 and 63 of
the Indian Succession Act are also
relevant. Section 59 provides that every
person of sound mind, not being a minor,
may dispose of his property by will and
the three illustrations
illustrations to this section
indicate what is meant by the expression
"a person of sound mind" in the context.
Section 63 requires that the testator shall
sign or affix his mark to the will or it
shall be signed by some other person in
his presence and by his direction
direction and that
the signature or mark shall be so made
that it shall appear that it was intended
thereby to give effect to the writing as a
will. This section also requires that the
will shall be attested by two or more
witnesses as prescribed. Thus the
question as to whether the will set up by
question
the propounder is proved to be the last
will of the testator has to be decided in
the light of these provisions. Has the
testator signed the will? Did he
understand the nature and effect of the
dispositions in the will?
will? Did he put his
signature to the will knowing what it
contained? Stated broadly it is the
decision of these questions which
determines the nature of the finding on
the question of the proof of wills. It
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would prima facie be true to say that the
will has to be proved like any other
document except as to the special
requirements of attestation prescribed by
Section 63 of the Indian Succession Act.
As in the case of proof of other
documents so in the case of proof of
wills it would be idle to expect proof
with mathematical certainty. The test to
with
be applied would be the usual test of the
satisfaction of the prudent mind in such
matters.
19. However, there is one important
feature which distinguishes wills from
other documents. Unlike other
documents the will speaks
speaks from the death
of the testator, and so, when it is
propounded or produced before a court,
the testator who has already departed the
world cannot say whether it is his will or
not; and this aspect naturally introduces
an element of solemnity in the decision
decision
of the question as to whether the
document propounded is proved to be the
last will and testament of the departed
testator. Even so, in dealing with the
proof of wills the court will start on the
same enquiry as in the case of the proof
of documents.
documents. The propounder would be
called upon to show by satisfactory
evidence that the will was signed by the
testator, that the testator at the relevant
time was in a sound and disposing state
of mind, that he understood the nature
and effect of the dispositions and put his
signature to the document of his own
free will. Ordinarily when the evidence
adduced in support of the will is
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disinterested, satisfactory and sufficient
to prove the sound and disposing state of
the testator's mind and his signature as
required by law, courts would be
required
justified in making a finding in favour of
the propounder. In other words, the onus
on the propounder can be taken to be
discharged on proof of the essential facts
just indicated.
20. There may, however, be cases in
which the execution
execution of the will may be
surrounded by suspicious circumstances.
The alleged signature of the testator may
be very shaky and doubtful and evidence
in support of the propounder's case that
the signature, in question is the signature
of the testator may not remove the doubt
created by the appearance of the
signature; the condition of the testator's
mind may appear to be very feeble and
debilitated; and evidence adduced may
not succeed in removing the legitimate
doubt as to the mental capacity of the
testator; the dispositions made in the will
testator;
may appear to be unnatural, improbable
or unfair in the light of relevant
circumstances; or, the will may
otherwise indicate that the said
dispositions may not be the result of the
testator's free will and mind. In such
cases the court would naturally expect
that all legitimate suspicions should be
completely removed before the
document is accepted as the last will of
the testator. The presence of such
suspicious circumstances naturally tends
to make the initial onus very heavy; and,
unless it is satisfactorily discharged,
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courts would be reluctant to treat the
document as the last will of the testator.
It is true that, if a caveat is filed alleging
the exercise of undue influence, fraud or
coercion in respect of the execution
execution of
the will propounded, such pleas may
have to be proved by the caveators; but,
even without such pleas circumstances
may raise a doubt as to whether the
testator was acting of his own free will in
executing the will, and in such
circumstances, it would
would be a part of the
initial onus to remove any such
legitimate doubts in the matter.
21. Apart from the suspicious
circumstances to which we have just
referred, in some cases the wills
propounded disclose another infirmity.
Propounders themselves take a
prominent part in the execution of the
wills which confer on them substantial
benefits. If it is shown that the
propounder has taken a prominent part in
the execution of the will and has
received substantial benefit under it, that
itself is generally treated as a suspicious
circumstance attending the execution of
the will and the propounder is required to
remove the said suspicion by clear and
satisfactory evidence. It is in connection
with wills that present such suspicious
circumstances that decisions of English
courts often mention the test of the
satisfaction of judicial conscience. It may
bee that the reference to judicial
conscience in this connection is a
heritage from similar observations made
by ecclesiastical courts in England when
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they exercised jurisdiction with reference
to wills; but any objection to the use of
the word "conscience" in this context
would, in our opinion, be purely
technical and academic, if not pedantic.
The test merely emphasizes that, in
determining the question as to whether
an instrument produced before the court
is the last will of the testator, the court is
deciding a solemn question and it must
deciding
be fully satisfied that it had been validly
executed by the testator who is no longer
alive.
22. It is obvious that for deciding
material questions of fact which arise in
applications for probate or in actions on
wills, no
no hard and fast or inflexible rules
can be laid down for the appreciation of
the evidence. It may, however, be stated
generally that a propounder of the will
has to prove the due and valid execution
of the will and that if there are any
suspicious circumstances
circumstances surrounding
the execution of the will the propounder
must remove the said suspicions from the
mind of the court by cogent and
satisfactory evidence. It is hardly
necessary to add that the result of the
application of these two general and
broad principles
principles would always depend
upon the facts and circumstances of each
case and on the nature and quality of the
evidence adduced by the parties. It is
quite true that, as observed by Lord Du
Parcq in Harmes v. Hinkson [(1946) 50
CWN 895] "where a will is charged
charged with
suspicion, the rules enjoin a reasonable
scepticism, not an obdurate persistence
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in disbelief. They do not demand from
the Judge, even in circumstances of
grave suspicion, a resolute and
impenetrable incredulity. He is never
required to close his mind to the truth". It
would sound platitudinous to say so, but
it is nevertheless true that in discovering
truth even in such cases the judicial mind
must always be open though vigilant,
cautious and circumspect.
**** **** ****
29. According to the decisions
ions
in Fulton v. Andrew [(1875) LR 7 HL
448] "those who take a benefit under a
will, and have been instrumental in
preparing or obtaining it, have thrown
upon them the onus of showing the
righteousness of the transaction". "There
is however no unyielding rule of law
(especially where the ingredient of fraud
enters into the case) that, when it has
been proved that a testator, competent in
mind, has had a will read over to him,
and has thereupon executed it, all further
enquiry is shut out". In this case, th the
Lord Chancellor, Lord Cairns, has cited
with approval the well known
well-known
observations of Baron Parke in the case
of Barry v. Butlin [(1838) 2 Moo PC
480, 482] . The two rules of law set out
by Baron Parke are:"first, that the onus
probandi lies in every case upon the
party propounding a will; and he must
satisfy the conscience of the court that
the instrument so propounded is the last
will of a free and capable testator"; "the
second is, that, if a party writes or
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prepares a will under which
which he takes a
benefit, that is a circumstance that ought
generally to excite the suspicion of the
court and calls upon it to be vigilant and
zealous in examining the evidence in
support of the instrument in favour of
which it ought not to pronounce unless
the
he suspicion is removed, and it is
judicially satisfied that the paper
propounded does express the true will of
the deceased". It is hardly necessary to
add that the statement of these two rules
has now attained the status of a classic
on the subject and it it is cited by all text
books on wills. The will propounded in
this case was directed to be tried at the
Assizes by the Court of Probate. It was
tried on six issues. The first four issues
referred to the sound and disposing state
of the testator's mind and the fifth to his
knowledge and approval of the contents
of the will. The sixth was whether the
testator knew and approved of the
residuary clause; and by this last clause
the propounders of the will were made
the residuary legatees and were
appointed executors.
executors. Evidence was led at
the trial and the Judge asked the opinion
of the jurors on every one of the issues.
The jurors found in favour of the
propounders on the first five issues and
in favour of the opponents on the sixth. It
appears that no leave to set set aside the
verdict and enter judgment for the
propounders notwithstanding the verdict
on the sixth issue was reserved; but when
the case came before the Court of
Probate a rule was obtained to set aside
the verdict generally and have a new trial
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or to set aside the verdict on the sixth
issue for misdirection. It was in dealing
with the merits of the finding on the sixth
issue that the true legal position came to
be considered by the House of Lords.
The result of the decision was that the
rule obtained for a new trial was
discharged, the order of the Court of
Probate of the whole will was reversed
and the matter was remitted to the Court
of Probate to do what was right with
regard to the qualified probate of the
will.
30. The same principle was emphasized
by the Privy Council in Vellasawmy
Servai v. Sivaraman Servai [(1929) LR
57 IA 96] where it was held that, where a
will is propounded by the chief
beneficiary under it, who has taken a
leading part in giving instructions for its
preparation and in procuring its
execution, probate should not be granted
unless the evidence removes suspicion
and clearly proves that the testator
approved the will.
31. In Sarat Kumari Bibi v. Sakhi
Chand [(1928) LR 56 IA 62] the Privy
Council made it clear that "the principle
which requires the propounder to remove
which
suspicions from the mind of the Court is
not confined only to cases where the
propounder takes part in the execution of
the will and receives benefit under it.
There may be other suspicious
circumstances attending on the execution
of the will and even in such cases it is the
duty of the propounder to remove all
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clouds and satisfy the conscience of the
court that the instrument propounded is
the last will of the testator". This view is
supported by the observations made by
Lindley and Davey, L. JJ.,
in Tyrrell v. Painton [(1894) P 151, 157,
159].
159]. "The rule
in Barry v. Butlin [(1838) 2 Moo PC
480, 482] , Fulton v. Andrew [(1875) LR
7 HL 448] and Brown v. Fisher [(1890)
63 LT 465] , said Lindley, L.J., "is not in
my mind confined
confined to the single case in
which the will is prepared by or on the
instructions of the person taking large
benefits under it but extends to all cases
in which circumstances exist which
excite the suspicions of the court".
32. In Rash Mohini Dasi v. Umesh
C
Chunder Biswas [(1898) LR 25 IA 109]
it appeared that though the will was
fairly simple and not very long the
making of it was from first to last the
doing of Khetter, the manager and
trusted adviser of the alleged testator. No
previous or independent intention
intention of
making a will was shown and the
evidence that the testator understood the
business in which his adviser engaged
him was not sufficient to justify the grant
of probate. In this case the application
for probate made by the widow of
Mohim Chunder Biswas
Biswas was opposed on
the ground that the testator was not in a
sound and disposing state of mind at the
material time and he could not have
understood the nature and effect of its
contents. The will had been admitted to
the probate by the District Judge but tthe
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High Court had reversed the said order.
In confirming the view of the High Court
the Privy Council made the observations
to which we have just referred.
33. The case of Shama Charn
Kundu v. Khettromoni Dasi [(1899) ILR
27 Cal 522] on the other hand, was the
case of a will the execution of which was
held to be not surrounded by any
suspicious circumstances. Shama Charn,
the propounder of the will, claimed to be
the adopted son of the testator. He and
three others were appointed executors of
the will. The testator left no natural son
but two daughters and his widow. By his
will the adopted son obtained substantial
benefit. The probate of the will with the
exception of the last paragraph was
granted to Shama Charn by the trial
Judge; but, on appeal the application
application for
probate was dismissed by the High Court
on the ground that the suspicions
attending on the execution of the will
had not been satisfactorily removed by
Shama Charn. The matter was then taken
before the Privy Council; and Their
Lordships held that,
that, since the adoption of
Shama Charn was proved, the fact that
he took part in the execution of the will
and obtained benefit under it cannot be
regarded as a suspicious circumstance so
as to attract the rule laid down by
Lindl
Lindley, L.J.,
in Tyrrell v. Painton [(1894) P 151, 157,
159] . In Bai Gungabai v. Bhugwandas
Valji [(1905) ILR 29 Bom 530] the Privy
Council had to deal with a will which
was admitted to probate by the first
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court, but on appeal the order was varied
by excluding therefrom certain passages
passages
which referred to the deed-poll
deed poll executed
on the same day by the testator and to the
remuneration of the solicitor who
prepared the will and was appointed an
executor and trustee thereof. The Privy
Council held that "the onus was on the
solicitor to satisfy
satisfy the court that the
passages omitted expressed the true will
of the deceased and that the court should
be diligent and zealous in examining the
evidence in its support, but that on a
consideration of the whole of the
evidence (as to which no rule of law
prescribed the particular kind required)
and of the circumstances of the case the
onus was discharged". In dealing with
the question as to whether the testator
was aware that the passages excluded by
the appeal court from the probate formed
part of the instrument, the Privy Council
examined the evidence bearing on the
point and the probabilities. In conclusion
Their Lordships differed from the view
of the appeal court that there had been a
complete failure of the proof that the
deed
deed-poll correctly represented
sented the
intentions of the testator or that he
understood or approved of its contents
and so they thought that there were no
grounds for excluding from the probate
the passages in the will which referred to
that deed. They, however, observed that
it would
would no doubt have been more
prudent and business-like
business like to have
obtained the services of some
independent witnesses who might have
been trusted to see that the testator fully
NEUTRAL CITATION NO. 2024:MPHC--JBP:51280
understood what he was doing and to
have secured independent evidence that
clause 26 in particular was called to the
testator's attention. Even so, Their
Lordships expressly added that in
coming to the conclusion which they had
done they must not be understood as
throwing the slightest doubt on the
principles laid down
in Fulton v. Andrew [(1875) LR 7 HL
448] and other similar cases referred to
in the argument."
20. The Supreme Court in the case of Surendra
Pal and others v. Dr. (Mrs.) Saraswati Arora and
another,, reported in (1974) 2 SCC 600 has held that
propounder has to show that the WillWill was signed by
testator, that he was at the relevant time in a sound
disposing state of mind, that he understood the nature
and effect of the dispositions, that he put his
signature to the testament of his own free Will, that
he has signed it in the presence
presence of the two witnesses
who attested it in his presence and in the presence of
each other. Once these elements are established, the
onus which rests on the propounder is discharged.
Furthermore, there may be cases in which the
execution of the Will itself itself is surrounded by
suspicious circumstances, such as, where the
signature is doubtful, the testator is of feeble mind or
is overawed by powerful minds interested in getting
his property, or where in the light of relevant
circumstances the dispositions appears
appears to be the
unnatural, improbable and unfair, or where there are
other reasons for doubting that the dispositions of the
Will are not the result of testator's free Will and
mind. It has also been held that in all such cases
where there may be legitimate suspicious
circumstances those must be reviewed and
satisfactorily explained before the Will is accepted
NEUTRAL CITATION NO. 2024:MPHC--JBP:51280
and the onus is always on the propounder to explain
them to the satisfaction of the Court before it could
be accepted as genuine.
21. The Supreme Court in the case of Gorantla
Thataiah v. Thotakura Venkata Subbaiah and
others,, reported in AIR 1968 SC 1332 has held as it
is for those who propound the Will to prove the
same.
22. The Supreme Court in the case of Murthy
and others v. C. Saradambal and others,, reported
in (2022) 3 SCC 209 has held that intention of
testator to make testament must be proved, and
propounder of Will must examine one or more
attesting witnesses and remove all suspicious
circumstances with regard to execution of Will. It has
been held as under:
"31. One of the celebrated decisions of
this Court on proof of a will,
in H. Venkatachala Iyengar v. B.N.
Thimmajamma [H. H. Venkatachala
Iyengar v. B.N. Thimmajamma,, AIR
1959 SC 443] is in H. Venkatachala
Iyengar v. B.N. Thimmajamma, wherein rein
this Court has clearly distinguished the
nature of proof required for a testament
as opposed to any other document. The
relevant portion of the said judgment
reads as under: (AIR p. 451, para 18)
"18.. ... The party propounding a
will or otherwise making a claim
under a will is no doubt seeking to
prove a document and, in deciding
how it is to be proved, we must
inevitably refer to the statutory
provisions which govern the proof
of documents. Sections 67 and 68 of
the Evidence Act are relevant for
NEUTRAL CITATION NO. 2024:MPHC--JBP:51280
this purpose. Under Section 67, if a
document is alleged to be signed by
any person, the signature of the said
person must be proved to be in his
handwriting, and for proving such a
handwriting under Sections 45 and
47 of the Act the opinions of experts
and of persons acquainted with the
handwriting of the person concerned
are made relevant. Section 68 deals
with the proof of the execution of
the document required by law to be
attested; and it provides that such a
document shall not be used as
evidence until one attesting witness
at least has been called for the
purpose of proving its execution.
These provisions prescribe the
requirements and the nature of proof
which must be satisfied by the party
who relies on a document in a court
of law. Similarly, Sections 59 and
63 of the Succession Act are also
relevant. Section 59 provides that
every person of sound mind, not
being a minor, may dispose of his
property by will and the three
illustrations to this section indicate
cate
what is meant by the expression "a
person of sound mind" in the
context. Section 63 requires that the
testator shall sign or affix his mark
to the will or it shall be signed by
some other person in his presence
and by his direction and that the
signature
ure or mark shall be so made
that it shall appear that it was
intended thereby to give effect to
the writing as a will. This section
NEUTRAL CITATION NO. 2024:MPHC--JBP:51280
also requires that the will shall be
attested by two or more witnesses as
prescribed. Thus, the question as to
whether the will set up by the
propounder is proved to be the last
will of the testator has to be decided
in the light of these provisions. Has
the testator signed the will? Did he
understand the nature and effect of
the dispositions in the will? Did he
put his signature ure to the will
knowing what it contained? Stated
broadly it is the decision of these
questions which determines the
nature of the finding on the question
of the proof of wills. It would prima
facie be true to say that the will has
to be proved like any other her
document except as to the special
requirements of attestation
prescribed by Section 63 of the
Indian Succession Act. As in the
case of proof of other documents so
in the case of proof of wills it would
be idle to expect proof with
mathematical certainty. y. The test to
be applied would be the usual test of
the satisfaction of the prudent mind
in such matters."
32. In fact, the legal principles with
regard to the proof of a will are no longer
res integra. Section 63 of the Succession
Act, 1925 and Section 68 68 of the
Evidence Act, 1872, are relevant in this
regard. The propounder of the will must
examine one or more attesting witnesses
and the onus is placed on the propounder
NEUTRAL CITATION NO. 2024:MPHC--JBP:51280
to remove all suspicious circumstances
with regard to the execution of the will.
33. In the abovenoted case, this Court
has stated that the following three
aspects must be proved by a propounder:
Bharpur
(Bharpur Singh case [Bharpur
Bharpur
Singh v. Shamsher Singh,, (2009) 3 SCC
687 : (2009) 1 SCC (Civ) 934] , SCC p.
696, para 16)
"16. ... (i) that the will was
signed by the testator in a sound and
disposing state of mind duly
understanding the nature and effect
of disposition and he put his
signature on the document of his
own free will, and
(ii)) when the evidence adduced
in support of the will is
disinterested,
ted, satisfactory and
sufficient to prove the sound and
disposing state of the testator's mind
and his signature as required by law,
courts would be justified in making
a finding in favour of propounder,
and
(iii)) if a will is challenged as
surrounded by suspicious
uspicious
circumstances, all such legitimate
doubts have to be removed by
cogent, satisfactory and sufficient
evidence to dispel suspicion. In
other words, the onus on the
propounder can be taken to be
discharged on proof of the essential
facts indicated therein."
34. In Jaswant Kaur v. Amrit
Kaur [Jaswant Kaur v. Amrit Kaur Kaur,
NEUTRAL CITATION NO. 2024:MPHC--JBP:51280
(1977) 1 SCC 369] , this Court pointed
out that when a will is allegedly
shrouded in suspicion, its proof ceases to
be a simple lis between the plaintiff and
the defendant. What generally is an
adversarial proceeding, becomes in such
cases, a matter of the court's conscience
and then, the true question which arises
for consideration is, whether, the
evidence let in by the propounder of the
will is such as would satisfy the
conscience of the court that the will was
conscience
duly executed by the testator. It is
impossible to reach such a satisfaction
unless the party which sets up the will
offers cogent and convincing explanation
with regard to any suspicious
circumstance surrounding the making
making of
the will.
35. In Bharpur Singh v. Shamsher
Singh [Bharpur Singh v. Shamsher
Singh, (2009) 3 SCC 687 : (2009) 1 SCC
Singh,
(Civ) 934] , this Court has narrated a few
suspicious circumstance, as being
illustrative but not exhaustive, in the
following manner: (SCC p. 699, para 23)
"23.. Suspicious circumstances
like the following may be found to
be surrounded in the execution of
the will:
(i)) The signature of the testator
may be very shaky and doubtful or
not appear to be his usual signature.
(ii) The condition of the testator's
mind may be very feeble and
debilitated at the relevant time.
NEUTRAL CITATION NO. 2024:MPHC--JBP:51280
(iii)) The disposition may be
unnatural, improbable or unfair in
the light of relevant circumstances
like exclusion of or absence of
adequate provisions for the natural
heirs without any reason.
(iv)) The dispositions may not
appear to be the result of the
testator's free will and mind.
(v)) The propounder takes a
prominent part in the execution of
the will.
(vi)) The testator used to sign
blank papers.
(vii) The will did not see the light
of the day for long.
(viii)) Incorrect recitals of
essential facts."
36. It was further observed in Shamsher
Singh case [Bharpur Singh v. Shamsher
Singh, (2009) 3 SCC 687 : (2009) 1 SCC
Singh,
(Civ) 934] that the circumstances
narrated hereinbefore are not exhaustive.
Subject to offering of a reasonable
explanation, existence thereof must be
taken into consideration for the purpose
of arriving at a finding as to whether the
execution of the will had been duly
proved or not. It may be true that the will
was a registered one, but the same by
was
itself would not mean that the statutory
requirements of proving the will need not
be complied with.
37. In Niranjan Umeshchandra
Joshi v. Mrudula Jyoti Rao [Niranjan
Niranjan
Umeshchandra Joshi v. Mrudula Jyoti
Rao (2006) 13 SCC
Rao, CC 433] , in paras 34 to
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37, this Court has observed as under:
(SCC pp. 447-48)
"34.. There are several
circumstances which would have
been held to be described by this
Court as suspicious circumstances:
(i)) when a doubt is created in
regard to the conditionn of mind of
the testator despite his signature on
the will;
(ii)) When the disposition appears
to be unnatural or wholly unfair in
the light of the relevant
circumstances;
(iii)) where propounder himself
takes prominent part in the
execution of will which confers
onfers on
him substantial benefit.
***
35.. We may not delve deep into the
decisions cited at the Bar as the
question has recently been
considered by this Court in B.
Venkatamuni v. C.J. Ayodhya Ram
Singh [B. Venkatamuni v. C.J.
Ayodhya Ram Singh,, (2006) 13
SCC 449] , wherein this Court has
held that the court must satisfy its
conscience as regards due execution
of the will by the testator and the
court would not refuse to probe
deeper into the matter only because
the signature of the propounder on
the will is otherwise proved.
36.. The proof of a will is
required not as a ground of reading
the document but to afford the
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Judge reasonable assurance of it as
being what it purports to be.
37. We may, however, hasten to
add that there exists a distinction
where suspicions are well founded
and the cases where there are only
suspicions alone. Existence of
suspicious circumstances alone may
not be sufficient. The court may not
start with a suspicion and it should
not close its mind to find the truth.
A resolute and impenetrable
incredulity is not demanded from
the Judge even if there exist
circumstances of grave suspicion."
38. This Court in Anil Kak v. Sharada
Raje [Anil Kak v. Sharada Raje,, (2008) 7
(Bharpur
SCC 695] , held as under: (Bharpur
Singh case [Bharpur Singh v. Shamsher
amsher
Singh, (2009) 3 SCC 687 : (2009) 1 SCC
Singh,
(Civ) 934] , SCC p. 698, para 20)
"20. This Court in Anil
Kak v. Sharada Raje [Anil
Anil
Kak v. Sharada Raje,, (2008) 7 SCC
695] opined that the court is
required to adopt a rational
approach and is furthermore
required
red to satisfy its conscience as
existence of suspicious
circumstances plays an important
role, holding: (SCC p. 714, paras
52-55)
'52.. Whereas execution of
any other document can be
proved by proving the
writings of the document or
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the contents of it as alsolso the
execution thereof, in the event
there exists suspicious
circumstances the party
seeking to obtain probate
and/or letters of
administration with a copy of
the will annexed must also
adduce evidence to the
satisfaction of the court before
it can be accepted
ccepted as genuine.
53.. As an order granting
probate is a judgment in rem,
the court must also satisfy its
conscience before it passes an
order.
54.. It may be true that
deprivation of a due share by
(sic to) the natural heir by
itself may not be held to be a
suspicious circumstance but it
is one of the factors which is
taken into consideration by
the courts before granting
probate of a will.
55.. Unlike other
documents, even animus
attestandi is a necessary
ingredient for proving the
attestation.' "
39. Similarly, in Leela
Rajagopal v. Kamala Menon
Cocharan [Leela Rajagopal v. Kamala
Menon Cocharan,
Cocharan, (2014) 15 SCC 570 :
(2015) 4 SCC (Civ) 267] , this Court
opined as under: (SCC p. 576, para 13)
"13.. A will may have certain
features and may have been
executed in certain circumstances
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which may appear to be somewhat
unnatural. Such unusual features
appearing in a will or the unnatural
circumstances surrounding its
execution will definitely justify a
close
lose scrutiny before the same can
be accepted. It is the overall
assessment of the court on the basis
of such scrutiny; the cumulative
effect of the unusual features and
circumstances which would weigh
with the court in the determination
required to be madee by it. The
judicial verdict, in the last resort,
will be on the basis of a
consideration of all the unusual
features and suspicious
circumstances put together and not
on the impact of any single feature
that may be found in a will or a
singular circumstancence that may
appear from the process leading to
its execution or registration. This, is
the essence of the repeated
pronouncements made by this Court
on the subject including the
decisions referred to and relied upon
before us."
23. Similar law has been laid
laid down by Supreme
Court in the case of Dhanpat v. Sheo Ram
(Deceased) through legal representatives and
others,, reported in (2020) 16 SCC 209 and in the
case of V. Kalyanaswamy (Dead) by legal
representatives and another v. L. Bakthavatsalam
(Dead) by legallegal representatives and others
others,
reported in (2021) 16 SCC 543.
24. The Supreme Court in the case of Bharpur
Singh, reported in
Singh and others v. Shamsher Singh,
NEUTRAL CITATION NO. 2024:MPHC--JBP:51280
(2009) 3 SCC 687 has held that it may be true that
Will was a registered one, but the same by itself
would not mean that the statutory requirements of
proving the Will need not be complied with. In terms
of Section 63(c), Succession Act, 1925 and Section
68, Evidence Act, 1872, the propounder of a Will
must prove its execution by examining one or more
attesting witnesses and propounder of Will must
prove that the Will was signed by the testator in a
sound and disposing state of mind duly
understanding the nature and effect of disposition
and he put his signature on the document of his own
free Will.
25. The Supreme Court in the case of Niranjan
Umeshchandra Joshi v. Mrudula Jyoti Rao and
others,, reported in (2006) 13 SCC 433 has held that
mere proof that testator had signed the Will is not
enough. It has also to be proved that testator has
signed out of his free will having a sound disposition
of mind and not a feeble and debilitated mind,
understanding well the nature and effect thereof. The
Court will also not refuse to probe
probe deeper in the
matter merely because propounder's signature on the
Will is proved. Similar law has been laid down by
Supreme Court in the cases of Savithri and others v.
Karthyayani Amma and others,others, reported in (2007)
11 SCC 621,621 Balathandayutham and another other v.
Ezhilarasan reported in (2010) 5 SCC 770
Ezhilarasan, 770,
Pentakota Satyanarayana and others v. Pentakota
Seetharatnam and others, reported in (2005) 8
SCC 67 and Meenakshiammal (Dead) through
legal representatives and others v.
another reported in (2005) 1
Chandrasekaran and another,
SCC 280.
26. Therefore, in order to take advantage of Will
for getting his name mutated in the revenue records,
beneficiary must prove that Will was a genuine one
and must remove all suspicious circumstances which
are attached to it by examining
examining at least one of the
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attesting witnesses as well as by proving the mental
status of testator, willingness of testator,
understanding of testator etc. All these findings
cannot be given by revenue authorities.
27. The Supreme Court in the case of Jitendra
Singh v. State of Madhya Pradesh by order dated
06.09.2021 passed in SLP (civil) No.13146/2021 has
held as under:
"6. Right from 1997, the law is very
clear. In the case of Balwant Singh v.
Daulat Singh (D) By Lrs., reported in
(1997) 7 SCC 137, 137, this Court had an
occasion to consider the effect of
mutation and it is observed and held that
mutation of property in revenue records
neither creates nor extinguishes title to
the property nor has it any presumptive
value on title. Such entries are relevant
relevant
only for the purpose of collecting land
revenue. Similar view has been
expressed in the series of decisions
thereafter.
6.1 In the case of Suraj Bhan v. Financial
Commissioner, (2007) 6 SCC 186, it is
observed and held by this Court that an
entry in revenue
revenue records does not confer
title on a person whose name appears in
record rights. Entries in the revenue
record-of-rights.
records or jamabandi have only "fiscal
purpose", i.e., payment of land revenue,
and no ownership is conferred on the
basis of such entries. It is is further
observed that so far as the title of the
property is concerned, it can only be
decided by a competent civil court.
Similar view has been expressed in the
cases of Suman Verma v. Union of India,
(2004) 12 SCC 58; Faqruddin v.
Tajuddin (2008) 8 SCC 12; Rajinder
NEUTRAL CITATION NO. 2024:MPHC--JBP:51280
Singh v. State of J&K, (2008) 9 SCC
368; Municipal Corporation, Aurangabad
v. State of Maharashtra, (2015) 16 SCC
689; T. Ravi v. B. Chinna Narasimha,
(2017) 7 SCC 342; Bhimabai Mahadeo
Kambekar v. Arthur Import & Export
Co., (2019) 3 SCC 191;
191; Prahlad Pradhan
v. Sonu Kumhar, (2019) 10 SCC 259;
and Ajit Kaur v. Darshan Singh, (2019)
13 SCC 70."
28. Counsel for applicant also conceded that
revenue authorities have no jurisdiction to decide the
question of title but only contention is that ssince
mutation can also be done on the basis of Will,
therefore, the revenue authorities are well within
their rights to mutate the name of a person on the
basis of Will. Unfortunately this general proposition
of law which is being suggested by counsel for
applicant cannot be accepted unless and until Will is
duly proved, it cannot be acted upon and the revenue
authorities have no jurisdiction to decide the
authenticity, correctness, genuineness of a Will
which can only be done by Civil Court. Thus, in the
light
ight of fact that revenue authorities cannot decide
the genuineness of the Will, the rule which permits
the mutation of name of a beneficiary on the basis of
Will has to be interpreted that the name of a
beneficiary can be mutated provided the Will is duly
proved and for that purposes the beneficiary has to
approach the Civil Court for declaration of his title.
Even otherwise in none of the previous judgments it
has been held that in spite of a declaration by Civil
Court the name of a beneficiary of a Will cannot be
mutated. The word "Will" as mentioned in Rules,
2018 necessarily means a valid and genuine Will and
not any piece of paper. Therefore, even in the light of
Niyam, 2018 it cannot be said that there is any
material change in the law.
NEUTRAL CITATION NO. 2024:MPHC--JBP:51280
29. It is submitted
submitted by counsel for petitioners that
a Coordinate Bench of this Court by order dated
07.10.2023 passed in W.P.No.3499/2022 has already
referred the question as to whether revenue
authorities have a jurisdiction to mutate the names of
the beneficiaries of a will or not. However, it is
submitted that High Court cannot held as to whether
judgment passed by Supreme Court is per incuriam
or not?
30. It is submitted by counsel for respondents
that since, the aforesaid question is already under
reference, therefore
therefore the hearing of this case may be
deferred awaiting outcome of W.P.No.3499/2022.
31. Considered the submission made by counsel
for parties.
32. It is well established principle of law that
even if an order has been referred to a Larger Bench
but still it would hold the field unless and until the
same is set aside. The prayer for deferment of
hearing of this case is hereby rejected."
11. Thus, it is clear that whether the Will was rightly executed by the
testator or not cannot be adjudicated by the Revenue
Revenue Courts and it can
be done only by the Civil Courts.
12. Under these circumstances, this Court is of considered opinion
that the Tehsildar, Rajnagar and Additional Commissioner, Sagar
Division, Sagar committed a material illegality by directing the mutation
of names of respondents on the basis of Will purportedly executed by
their mother Pyari Bai.
13. Undisputedly, the petitioner is also the daughter of Late Pyari Bai,
therefore, she is also entitled to inherit the property. Under these
circumstances,
es, the SDO did not commit any mistake by directing for
NEUTRAL CITATION NO. 2024:MPHC--JBP:51280
mutation of names of petitioner as well as Bhagwan Das Soni and
Ramswaroop.
14. So far as the respondents No. 1 and 2 are concerned, they are the
sons of Bhagwan Das. Therefore, during the life time of their father they
would not inherit the property left by their grand mother Late Smt. Pyari
Bai. Therefore, the SDO, Rajnagar did not commit any mistake by
directing mutation of names of Bhagwan Das, Ramswaroop and the
petitioner only in the revenue records.
rec
15. Accordingly, the order dated 29.09.2010 passed by Tehsildar,
Rajnagar, District Chhatarpur in case No. 29/A-6/2009-
29/A -10, order dated
15.02.2024 passed by Additional Commissioner, Sagar Division, Sagar
in Appeal No. 626/A-6/2016-17
626/A are hereby quashed.. The order dated
27.09.2016 passed by SDO, Rajnagar, District Chhatarpur in Revenue
Case No. 113/Appeal/2012-13
113/Appeal/2012 is hereby restored.
16. The respondents are granted liberty that in case if they so desire,
then they can filed a suit for declaration of title on the basis of Will and
if such a suit is filed, then the trial Court shall decide the same in
accordance with law without getting influenced or prejudiced by any of
the findings given by the Revenue Courts.
17. In case if the Civil Suit is filed, then the mutation entry shall be
subject to the final outcome of the civil litigation.
18. With aforesaid observations, the petition is allowed
allowed.
(G.S. AHLUWALIA)
JUDGE
AL
Date: 2024.10.15 18:57:06 +05'30'
