Orissa High Court

Biranchi Nath Dash vs State Of Odisha And Others .... Opposite ... on 3 April, 2025

                    IN THE HIGH COURT OF ORISSA AT CUTTACK

                                         W.P.(C) No.3524 of 2025

                    (In the matter of an application under Article 226 and 227 of the
                  Constitution of India)

                   Biranchi Nath Dash                            ....             Petitioner

                                                    -versus-
                   State of Odisha and others                    ....      Opposite Parties


                  Appeared in this case:-
                        For Petitioner          :              Mr. A. Pr. Mishra, Advocate

                   For Opposite Parties         :                            Mr. S. Nayak,
                                                               Learned Additional Standing
                                                                                  Counsel

                   Appeared in this case:-

                   CORAM:
                   JUSTICE A.C. BEHERA

                                           JUDGMENT

Date of hearing : 27.03.2025 / date of judgment : 03.04.2025

A.C. Behera, J. This writ petition under Articles 226 and 227 of the Constitution of

India, 1950 has been filed by the petitioner praying for quashing(setting

aside) an order dated 14.05.2024 (Annexure-4) passed in Revision

Petition No.265 of 2022 by the Secretary to Revenue Divisional

Commissioner, Northern Division, Sambalpur (Opposite Party No.2).

2. The factual backgrounds of this writ petition, which prompted the

petitioner for filing of the same is that, one Bidyadhar Dash, recorded

owner of Plot No.1226/1389 Ac.0.170 decimals under Khata No.332/147

in Mouza-Ufula under Birmaharajpur Tahasil in the district of

Subarnapur bequeathed the properties of said Plot No.1226/1389 in

favour of his nephew, i.e., petitioner executing and registering a Will

vide Will No.23 dated 29.07.1995.

When the Testator of the said Will, i.e., Bidyadhar Dash died on

dated 11.07.2007, then, the petitioner possessed the bequeathed

properties of the Will and filed a Revision Petition No.265 of 2022 under

Section 15(b) of the O.S. & S Act, 1958 before the Secretary to Revenue

Divisional Commissioner, Northern Division, Sambalpur (Opposite Party

No.2) for recording of the properties covered under the registered Will

No.23 dated 29.07.1995 in his name.

As per order dated 14.05.2024(Annexure-4), the Opposite Party

No.2 rejected that Revision Petition No.265 of 2022 of the petitioner on

the sole ground that,

"the will submitted by the petitioner is not probated"

So, the petitioner challenged that (Annexure-4) passed by the

Opposite Party No.2 by filing this writ petition on the ground that,

"the registered will No.23 dated 29.07.1995, on the basis of which the petitioner had prayed for recording the properties covered under that Will in his name is not required under law to be probated, as the said will is a Godjat Will".

3. I have already heard from the learned counsel for the petitioner

and learned Standing Counsel for the State(Opposite Parties).

4. It is the settled propositions of law that, when a Will in question is

executed in the Districts, which were coming under the ex-princely State

like Mayurbhanj, Bolangir, Koraput, Dhenkanal, Ganjam, Kalahandi,

Sonepur, Sundargarh, Sambalpur, Angul, Keonjhar, Rayagada,

Jharsuguda, Malkanagiri and others, no probate of Will is necessary. In

the said Districts, Revenue Authorities and Tahasildars can proceed for

recording the properties covered under the Wills in favour of the

beneficiaries of such Wills, even if the Wills are not probated.

5. On this aspect, it has already been clarified by the Hon'ble Courts

in the ratio of the decisions reported in

1972(2) C.W.R.-1451, Amrutlal Majhi and others vrs. Japi Sahuani and others. (II) AIR 1973 Orissa-112, Balaram Tripathy and another vrs. Lokanath Tripathy. (III) 48(1979) CLT-211 (Para-8), Mst. Radha Hota vrs. Dutika Satpathy and another, (IV) 2008(I) OLR- 729, Sailabala Satpathy vrs, Parbati Satpathy and others. (V) 2009(II) CLR-155, Aparna Sahu and others vrs. Raghunath Biswal and others. (VI) 2012(II) OLR-394, Kunjabihari Sahu vrs. State of

Orissa and others. (VII) 2015(II) CLR-1075 & 2015(II) OLR-1025, Ritesh Kumar Patel @ Ritesh Patel vrs. Kishore Chandra Patel and others. (VIII) W.P.(C) No.24927 of 2021, Subrat Purohit vrs. State of Orissa and others. (IX) W.P.(C) No.33187 of 2021, Ratnamala Mishra vrs. State of Orissa and others. (X) W.P.(C) No.5216 of 2023, Fatik Bala and others vrs. State of Odisha and others. (XI) 2023(I) CLR-621, Amrita Pandey vrs. State of Orissa and another that,

"If the Wills are executed in a place either outside the areas specified in the clauses of Section 57 of the Indian Succession Act, 1925 or in respect of the immovable properties situated beyond the territories specified in clauses of Section 57 of the Indian Succession Act, 1925, those areas/territories were under the ex-princely State called as Gadajat Wills, probate of such Wills are not required under law. The Revenue Authorities in the said areas can proceed with the mutation cases on the basis of un-probated Wills."

6. Government of Orissa has issued a Letter vide letter No.23734

dated 13.08.2019 to the Collector, Mayurbhanj (which district was also

coming under the ex-princely State) on the basis of the decision of this

High Court in a case between Ritesh Kumar Patel @ Ritesh Patel vrs.

Kishore Chandra Patel and others : reported in 2015(II) OLR-1025,

modifying the previous Letter No.16449 dated 07.05.2018 that,

"probate of a Will is not required in the District of Mayurbhanj and the Revenue Authorities can proceed with the mutation case, if the same is filed for mutation on the basis of un-probated Will. Because, initiation of probate proceeding for probation of a Will is not necessary in the district of Mayurbhanj. For which, the restriction for mutation of the properties on the basis of an un-probated Will in the district of Mayurbhanj as directed earlier in Para No.6 of Letter No.16449 dated 07.05.2018 of the Government stands modified."

7. In view of the ratio of the aforesaid decisions of this Court as well

as Letter No.23734 dated 13.08.2019 of Government of Odisha, "no

probate is necessary in respect of "Gadajat Wills" and the revenue courts

including Tahasildars in such areas of the Districts in the State shall

entertain mutation cases on the basis of un-probated Wills.

8. As per law, it is beyond the jurisdiction of the revenue authorities

to decide the disputed matters concerning the Wills, if dispute arises

before the revenue authorities either in respect of the genuineness of the

Will in question or in respect of the properties covered under the Will.

9. On this aspect, the propositions of law has already been clarified

by the Hon'ble Courts and Apex Court in the ratio of the following

decisions:-

(i) In a case between Pradeep Kumar Singh and another vrs. State of Uttar Pradesh Through Secy. Revenue Lko. and others : reported in 2022(4) Civil Court Cases-455(Allahabad) that, in a mutation case, where Will is still subject to scrutiny of appropriate civil Court, then finding of civil Court will be binding on mutation court.

              (Para-15)
      (ii)    In a case between Noor Ahmad @ Chand vrs.
              Board of Revenue and others : reported in

2022(1) Civil Court Cases-391(Allahabad)-- Legality of Will, cannot be tested in mutation proceedings and could have been tested only in a regular proceedings.(Para-6)

(iii) In a case between Ashok Kumar Pati and another vrs. State of Orissa and others : reported in 2021(I) OLR-655--Contentious issue of title claim based on a Will cannot be decided by a Revisional Authority under Section 15(b) of OSS Act, 1958--Amount to exercise of excess jurisdiction--Issue of title can only be decided by a Civil Court.

(iv) In a case between Jitendra Singh vrs. State of Madhya Pradesh and others : reported in 2021(4) Civil Court Cases(S.C.)-29--Mutation--When an application for mutation is filed on the basis of Will, if dispute is with respect to title and more particularly, when mutation is sought on the basis of Will, such party has to get his rights crystalized by Civil Court and only thereafter on the basis of decision of Civil Court, necessary mutation entry can be made.(Para-5)

10. It is the clarified propositions of law according to the principles of

law enunciated in the ratio of the above decisions of the Hon'ble Courts

and Apex Court as well as Letter No.23734 dated 13.08.2019 of the

Government of Orissa that, "Mutation cases in the areas inside the State

of Odisha, those were coming under the ex-princely State, on the basis of

un-probated Wills are entertainable by the Revenue Authorities and

Tahasildars, but, if after initiation of mutation proceedings on the basis of

un-probated Wills, any dispute either in respect to the genuineness of

such un-probated Wills in question or any dispute concerning the

properties covered under the said Wills is raised, then, the Revenue

Authorities and Tahasildars have no other option, but, to drop the

mutation proceeding directing the parties to crystalize their rights by the

Civil Court and only thereafter on the basis of the decision of the Civil

Court, necessary mutation entry can be made. Because, in a mutation

proceeding, Revenue Authorities and Tahasildars have no jurisdiction to

decide any contentious issue based on a Will.

11. As per the discussions and observations made above, when, it is

held that, there is no requirement under law for probation of the Will

No.23 dated 29.07.1995 executed in favour of the writ petitioner

(applicant in Revision Petition No.265 of 2022), because, the said Will

No.23 dated 29.07.1995 has been executed in the District of Subarnapur,

in respect of the properties under Subarnapur Tahasil(which was under

ex-princely State), then, at this juncture, order dated

14.05.2024(Annexure-4) passed by the Secretary to Revenue Divisional

Commissioner, Northern Division, Sambalpur (Opposite Party No.2)

rejecting the Revision Petition No.265 of 2022 on the ground of non-

probation of Will No.23 dated 29.07.1995 cannot be sustainable under

law.

For which, order dated 14.05.2024 (Annexure-4) passed in R.P.

No.265 of 2022 by the Opposite Party No.2 (Secretary to Revenue

Divisional Commissioner, Northern Division, Sambalpur) is to be

quashed(set aside).

Therefore, the writ petition filed by the petitioner is allowed.

Order dated 14.05.2024 (Annexure-4) passed in R.P. No.265 of

2022 by the Opposite Party No.2(Secretary to Revenue Divisional

Commissioner, Northern Division, Sambalpur) is quashed.

12. The matter, i.e., R.P. No.265 of 2022 is remitted back to the

(Secretary to Revenue Divisional Commissioner, Northern Division,