Orissa High Court

Anshuman Apat vs State Of Odisha And Others .... Opposite ... on 26 August, 2025

         IN THE HIGH COURT OF ORISSA AT CUTTACK
                     W.P.(C) No.3689 of 2025
        (An application under Articles 226 and 227 of the Constitution of India, 1950)

        Anshuman Apat                                ....            Petitioner
                                         -versus-
        State of Odisha and others                   ....      Opposite Parties
                Appeared in this case by Hybrid Arrangement
                                 (Virtual/Physical Mode):
                  For Petitioner-              Mr. Bijay Kumar Parida,
                                               Advocate.
                                               Mr. Pratik Dash,
                                               Advocate.

                  For Opposite Parties-        Mr. Gyanalok Mohanty,
                                               Standing Counsel.

                  CORAM:
                  HON'BLE MR. JUSTICE A.C.BEHERA

Date of Hearing :25.08.2025 :: Date of Judgment :26.08.2025

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 08.12.2023 (Annexure-4) passed in Mutation

Case No.866 of 2023 by the Tahasildar, Champua (Opposite Party No.2).

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

petitioner for filing of the same is that, one Chakradhar

Apat, recorded owner of Plot Nos.358, 364, 470, 471, 558, 563, 898, 960,

967, 977, 978, 983, 1090, 1692, 1715, 1736, 1747, 1751, 965/2025 &

1421/2034 total area Ac.4.7400 decimals under Khata No.17 in Mouza-

Kankada under Champua Tahasil in the district of Keonjhar bequeathed

the properties of said Plot Nos.358, 364, 470, 471, 558, 563, 898, 960,

967, 977, 978, 983, 1090, 1692, 1715, 1736, 1747, 1751, 965/2025 &

1421/2034 in favour of his grandson, i.e., petitioner executing and

registering a Will vide Will No.03 dated 06.02.2004.

When the said Testator of the aforesaid Will, i.e., Chakradhar

Apat died on dated 02.10.2008, then, the petitioner possessed the

aforesaid bequeathed properties and filed a mutation case vide Mutation

Case No.866 of 2023 before the Tahasildar, Champua (Opposite Party

No.2) for the mutation of the said properties to his name on the basis of

that registered Will No.03 dated 06.02.2004.

As per the order dated 08.12.2023 (Annexure-4), the Tahasildar,

Champua (Opposite Party No.2) dropped that Mutation Case No.866 of

2023 filed by the petitioner assigning the reasons that,

"The Will has not been probated. A will has no legal effect until it is probated. As per letter No.16449 dated 07.05.2018 of Revenue & Disaster Management Department, Government of Odisha, in case of a Will which is not probated shall be rejected."

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

Tahasildar, Champua (Opposite Party No.2) by filing this writ petition on

the ground that,

"When the properties covered under the Will No.03 dated 06.02.2004 executed in favour of the petitioner are situated in the district of

Keonjhar and the said Will has been executed in the District of Keonjhar, which is outside the area specified in the Clauses of Section 57 of the Indian Succession Act, 1925 and when Keonjhar District was under the ex-princely State, then, the question of probation of that Will does not arise. For which, The Tahasildar, Champua (Opposite Party No.2) should not have dropped the said mutation case as per Annexure-4".

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

learned Standing Counsel for the State.

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, 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 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) OLR729, 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

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 decision 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 crystallized 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.866 of 2023),

because, the said Will dated 06.02.2004 has been executed in the District

of Keonjhar, (which was coming under the ex-princely State) in respect of

the properties under Champua Tahasil, then, at this juncture, the impugned

order dated 08.12.2023 (Annexure-4) passed by the Tahasildar, Champua

(Opposite Party no.2) to drop the Mutation Case No.866 of 2023 cannot

be sustainable under law.

For which, the order dated 08.12.2023 (Annexure-4) passed by the

Opposite Party No.2 (Tahasildar, Champua) in Mutation Case No.866 of

2023 is to be quashed.