Orissa High Court
Durga Prasad Oram vs State Of Odisha on 17 April, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.8962 of 2025
(In the matter of an application under Article 226 and 227 of the
Constitution of India)
Durga Prasad Oram .... Petitioner
-versus-
State of Odisha, represented through .... Opposite Parties
its Principal Secretary, Revenue and
Disaster Management, Bhubaneswar
and others
Appeared in this case:-
For Petitioner : Mr. A. Dash, Advocate
For Opposite Parties : Mr. G. Mohanty,
Learned Standing Counsel
CORAM:
JUSTICE A.C. BEHERA
JUDGMENT
Date of hearing : 09.04.2025 / date of judgment : 17.04.2025
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 setting aside an
order dated 01.03.2025 (Annexure-5) passed in Mutation Case No.8038
of 2024 by the Addl. Tahasildar, Jharsuguda (Opposite Party No.3).
2. The factual backgrounds of this writ petition, which prompted the
petitioner for filing of the same is that, one Takale Oram, recorded owner
of Plot Nos.287, 308, 331, 881 and 890 Ac.3.6300, Ac.1.5700,
Ac.3.7900, Ac.2.8200 and Ac.4.5200 decimals under Khata No.26 in
Mouza-Budhipadar under Jharsuguda Tahasil in the district of
Jharsuguda bequeathed his properties of said Plot Nos.287, 308, 331, 881
and 890 in favour of his son, i.e., petitioner of this writ petition executing
a Will on dated 10.11.2000.
When the said Testator of the aforesaid Will, i.e., Takale Oram
died on dated 24.12.2003, then, the petitioner possessed the aforesaid
bequeathed properties and filed a mutation case vide Mutation Case
No.8038 of 2024 before the Addl. Tahasildar, Jharsuguda(Opposite Party
No.3) for the mutation of the said properties to his names on the basis of
that Will dated 10.11.2000.
As per an order dated 01.03.2025(Annexure-5), the Addl.
Tahasildar, Jharsuguda(Opposite Party No.3) rejected that Mutation Case
No.8038 of 2024 filed by the petitioner assigning reasons that,
"verified the original documents and found that the will
submitted by the applicant is an unregistered family will.
Hence, this case is rejected"
So, the petitioner challenged that (Annexure-5) passed by the
Addl. Tahasildar, Jharsuguda (Opposite Party No.3) by filing this writ
petition on the ground that,
"When the properties covered under the Will dated
10.11.2000 executed in favour of the petitioner are situated
in the district of Jharsuguda and the said Will has been
executed in the District of Jharsuguda, which is outside the
area specified in the Clauses of Section 57 of the Indian
Succession Act, 1925 and when Jharsuguda District was
under the ex-princely State, then, the question of probation
of that Will does not arise. For which, The Addl. Tahasildar,
Jharsuguda(Opposite Party No.3) should not have rejected
the said mutation case as per Annexure-5".
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
either registered or unregistered is executed in the Districts, which were
coming under the ex-princely State like Mayurbhanj, Bolangir, Koraput,
Dhenkanal, Ganjam, Sundargarh, Sambalpur, Angul, Keonjhar,
Rayagada, Kalahandi, Subarnapur, Jharsuguda, Malkanagiri and others,
no probate of Will is necessary. In the said Districts, Revenue Authorities
and Tahasildars can proceed with the mutation cases on the basis of un-
probated Will even though the said Will is not registered one. Because
registration of a Will is not compulsory under law.
5. On this aspect, propositions of law has already been clarified in the
ratio of the following decisions :-
(i) In a case between Sariamani Hota and others vrs.
State of Orissa and others reported in 112(2011)
CLT-756 and 2011(2) OJR-519 that,--Registration of
the Will is not necessary.
(ii) In a case between Raman Mahindra and others vrs.
Adarsh Bala Sud@Adarsh Kumar and others
reported in 2015(II) CCC-508(Delhi) that,--
Registration of Will not mandatory(Para-12).
(iii) In a case between Meenakshi Madan@Chander
Bala@ Meenu Madan vrs. Amit Sondhi and others
reported in 2019(I) Civil Court Cases-194(P&H) :--
Will is not required to be registered compulsorily,
because, registration of Will is optional.(Para-24)
(iv) In a case between Smt. Lalita Sharma vrs. Smt.
Sumitra Sharma reported in 2011(II) Civil Law
Times-77(Delhi) that,--No requirement in law that,
a Will has to be executed on a stamp paper.
(v) 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
Hon'ble Courts 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 under law for probation of the Will
executed in favour of the wit petitioner (applicant in Mutation Case
No.8038 of 2024), because, the said Will dated 10.11.2000 has been
executed in the District of Jharsuguda, (which was under the ex-princely
State) in respect of the properties under Jarsuguda Tahasil, then, at this
juncture, order dated 01.03.2025(Annexure-5) passed by the Addl.
Tahasildar, Jharsuguda (Opposite Party no.3) rejecting the Mutation Case
No.8038 of 2024 of the petitioner on the ground of non-registration of the
Will cannot be sustainable under law.
For which, order dated 01.03.2025 (Annexure-5) passed by the
Opposite Party No.3 (Addl. Tahasildar, Jharsuguda) in Mutation Case
No.8038 of 2024 is to be quashed.
Therefore, the writ petition filed by the petitioner is allowed.
Order dated 01.03.2025(Annexure-5) passed in Mutation Case
No.8038 of 2024 by the Opposite Party No.3(Addl. Tahasildar,
Jharsuguda) is quashed.
12. The Addl. Tahasildar, Jharsuguda (Opposite Party No.3) is
directed to consider the mutation case vide Mutation Case No.8038 of
2024 of the petitioner afresh and to proceed with the same as per law
following the formulated guidelines of this Court in the judgment
between Prasanta Biswanath @ Prasanta Kumar Biswanath vrs. The
State of Odisha, represented through its Collector, Rayagada and
another in W.P.(C) No.51 of 2025 decided on dated 31.01.2025 within a
period of three months from the date of filing of the certified copy of this
judgment by the petitioner.
13. So, with the aforesaid findings, observations, clarifications and
guidelines, this writ petition filed by the petitioner is disposed of finally.
( A.C. Behera )
Judge
Orissa High Court, Cuttack
The 17th of April, 2025/ Jagabandhu, P.A.
Designation: Personal Assistant
