Dinesh Chandra Das vs The State Of Odisha
2025 Latest Caselaw 6593 Ori

Orissa High Court

Dinesh Chandra Das vs The State Of Odisha on 3 April, 2025

                    IN THE HIGH COURT OF ORISSA AT CUTTACK

                                           W.P.(C) No.771 of 2025

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

                   Dinesh Chandra Das                          ....            Petitioner

                                                    -versus-
                   The State of Odisha, represented ....                 Opposite Parties
                   through its Commissioner-cum-
                   Secretary Revenue and Disaster
                   Management            Department,
                   Bhubaneswar and others


                  Appeared in this case:-
                        For Petitioner          :              Mr. B.C. Panda, Advocate

                   For Opposite Parties         :                      Mr. G. Mohanty,
                                                               Learned Standing Counsel

                   Appeared in this case:-

                   CORAM:
                   JUSTICE A.C. BEHERA

                                           JUDGMENT

Date of hearing : 13.03.2025 / 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 25.11.2024 (Annexure-2) passed in Mutation Case

No.5740 of 2024 by the Tahasildar, Athagarh (Opposite Party No.3).

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

petitioner for filing of the same is that, one Kasturi Das @ Kasturi

Kumari Das, recorded owner of Plot No.1298/2600 A.0.3000 decimals

under Khata No.518 in Mouza-Nijigada under Athagarh Tahasil in the

district of Cuttack bequeathed the properties of said Plot No.1298/2600

in favour of the petitioner executing and registering a Will vide Will

No.30402001417 dated 20.10.2020.

When the Testator of the aforesaid Will, i.e., Kasturi Das @

Kasturi Kumari Das died, then, the petitioner possessed the bequeathed

properties covered under the above Will and filed a mutation case vide

Mutation Case No.5740 of 2024 before the Tahasildar,

Athagarh(Opposite Party No.3) for the mutation of the properties to his

name on the basis of that registered Will No.30402001417 dated

20.10.2020.

As per an order dated 25.11.2024(Annexure-2), the Tahasildar,

Athagarh(Opposite Party No.3) rejected that Mutation Case No.5740 of

2024 filed by the petitioner assigning reasons that,

"The case record is put up today after receiving from R.I. On the recommendation of R.I. the case is rejected, as R.I. recommended that, the Will on the basis of which, mutation has been sought for has not been probated"

So, the petitioner challenged that (Annexure-2) passed by the

Tahasildar, Athagarh (Opposite Party No.3) by filing this writ petition on

the ground that,

"When the properties covered under the Will No.30402001417 dated 20.10.2020 executed in favour of the petitioner is situated under Athagarh Tahasil, which is outside the area specified in the Clauses of Section 57 of the Indian Succession Act, 1925 and when Athagarh was under

the ex-princely State, then, the question of probation of that Will does not arise. For which, The Tahasildar, Athagarh(Opposite Party No.3) should not have rejected the said Mutation Case No.5740 of 2024 as per Annexure-2 on the ground of non-probation of Will on the basis of the report of the R.I. without giving his own view."

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 places, which were coming under the ex-princely State

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

Sundargarh, Sambalpur, Angul, Keonjhar, Rayagada, Jharsuguda,

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

said areas, the Revenue Authorities and Tahasildars can proceed with the

mutation cases on the basis of un-probated Wills.

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

in the ratio of the decisions reported in

(I) 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 the Hon'ble

Courts 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 for probation of the Will executed in

favour of the writ petitioner (applicant in Mutation Case No.5740 of

2024), because, the said Will dated 20.10.2020 has been executed in

respect of the properties under Athagarh Tahasil and when Athagarh

Tahasil areas were under the Ex-princely State, then, at this juncture,

order of rejection to the Mutation Case No.5740 of 2024 passed on dated

25.11.2024(Annexure-2) by the Tahasildar, Athagarh (Opposite Party

no.3) on the ground of non-probation of Will No.30402001417 dated

20.10.2020 cannot be sustainable under law.

For which, order dated 25.11.2024 (Annexure-2) passed by the

Opposite Party No.3 (Tahasildar, Athagarh) in Mutation Case No.5740 of

2024 is to be quashed.

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

dated 25.11.2024 (Annexure-2) passed in Mutation Case No.5740 of

2024 by the Opposite Party No.3(Tahasildar, Gunpur) is quashed.

12. The Tahasildar, Athagarh (Opposite Party No.3) is directed to

decide the mutation case vide Mutation Case No.5740 of 2024 afresh and

to proceed with the same as per law following the formulated guidelines

given in this judgment.

13. In order to avoid the similar nature of litigation in future relating to

mutation of records on the basis of un-probated Wills in Gadajat areas of

the State of Odisha (those were under ex-princely State), it is pertinent to

issue the following guidelines to be followed by the Revenue

Authorities-cum-Tahasildars, for initiation and disposal of mutation cases

on the basis of the un-probated Wills i.e.:-

(i) The Revenue Authorities including The Tahasildars and others, those are dealing with the mutation cases in the areas inside the State of Odisha (those were under ex-princely State) cannot refuse to entertain/register mutation cases on the basis of un-probated Wills.

(ii) Soon after, registration of a mutation case, on the basis of an un-probated Will, a report is to be called for from the local Revenue Inspector or from any other authentic source, as it deems fit and proper to ascertain the names and addresses of all the legal heirs of the testator or testators in the natural line of succession.

(iii) After ascertaining the names and addresses of all the legal heirs of the testator or testators in the natural line of succession, notices shall be issued to them along with notices to others, if any, as per law inviting their objection and participation.

(iv) If after receiving such notices, dispute is raised by the invitees of the notices either in respect of the genuineness of the Will in question or in respect of the properties covered under the said Will, then, the Revenue Authorities or Tahasildars shall drop

the mutation proceeding leaving the parties to get their rights crystalized before the civil Court.

(v) After crystallization of their rights before the Civil Court, necessary mutation entry can be made by the Revenue Authorities or Tahasildars on the basis of the decree of the Civil Court.

14. So, with the aforesaid findings, observations, clarifications and

guidelines, this writ petition is disposed of finally.

( A.C. Behera ) Judge Orissa High Court, Cuttack The 3rd of April, 2025/ Jagabandhu, P.A.

Designation: Personal Assistant