Orissa High Court
Shiba Sankar Singh vs State Of Odisha And Others .... Opposite ... on 25 July, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.17798 of 2025
(In the matter of an application under Article 226 and 227 of the
Constitution of India)
Shiba Sankar Singh .... Petitioner
-versus-
State of Odisha and others .... Opposite Parties
Appeared in this case:-
For Petitioner : Mr. B.K. Mishra, Advocate
For Opposite Parties : Mr. S. Nayak,
Learned Additional Standing Counsel
CORAM:
JUSTICE A.C. BEHERA
JUDGMENT
Date of hearing : 09.07.2025 / date of judgment : 25.07.2025
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 the
order dated 07.03.2025 (Annexure-4) passed in Mutation Appeal Case
No.09 of 2024 by the Sub-Collector, Kaptipada at Udala (Opposite Party
No.3) and the order dated 19.02.2024 passed in Mutation Case No.04 of
2024 by the Tahasildar, Khunta(Opposite Party No.4) respectively.
2. The factual backgrounds of this writ petition, which prompted the
petitioner for filing of the same is that, one Scheduled Tribe person, i.e.,
Gora Majhi being the recorded owner of the properties in Mouza-
Kendugadi under Khata No.73, Plot No.108 of Khunta Tahasil in the
district of Mayurbhanj bequeathed the said properties in favour of
another Scheduled Tribe person, i.e., the petitioner of this writ petition
executing and registering a Will dated 29.10.2013.
When the said Testator Gora Majhi died on 24.09.2017, then, the
petitioner possessed the bequeathed properties covered under the above
registered Will and filed a mutation case vide Mutation Case No.04 of
2024 before the Tahasildar, Khunta(Opposite Party No.4) for mutation of
the properties to his name on the basis of that registered Will dated
29.10.2013.
As per the order dated 19.02.2024(Annexure-3), the Tahasildar,
Khunta(Opposite Party No.4) rejected that Mutation Case No.04 of 2024
filed by the petitioner assigning reasons that,
"When as per R & DM Department letter No.16449 dated
07.05.2018 issued by the Government to the Collector,
Mayurbhanj it has been clarified that, in case of a Will,
which is not probated, the mutation shall be rejected. Even
in case of a Will, which is prohibited, the mutation shall not
be allowed. Here the scheduled land contained in the Will
belonging to a Scheduled Tribe and when Mayurbhanj
district is coming under Scheduled area, then the mutation
case is rejected."
Then, the petitioner challenged the said rejection order of his
mutation case passed by the Tahasildar, Khunda(Opposite Party No.4)
preferring an appeal vide Mutation Appeal Case No.09 of 2024 before
the Sub-collector, Kaptipada at Udala(Opposite Party No.3), but, the
Sub-collector, Kaptipada at Udala(Opposite Party No.3) rejected that
Mutation Appeal Case No.09 of 2024 of the petitioner on dated
07.02.2025 confirming the rejection order to the Mutation Case No.04 of
2024 passed on dated 19.02.2024 by the Tahasildar, Khunta(Opposite
Party No.4),
3. On being aggrieved with the aforesaid orders dated 19.02.2024
passed in Mutation Case No.04 of 2024 by the Tasildar, Khunta(Opposite
Party No.4) and order dated 07.03.2025 passed in Mutation Appeal Case
No.09 of 2024 by the Sub-Collector, Kaptipada at Udala(Opposite Party
No.3), he (petitioner) filed this writ petition under Articles 226 and 227
of the Constitution of India, 1950 praying for quashing(setting aside) the
above orders passed by the Opposite Party Nos.4 and 3 in Mutation Case
No.04 of 2024 as well as in Mutation Appeal No.09 of 2024.
4. I have already heard from the learned counsel for the petitioner
and learned Additional Standing Counsel for the State.
5. 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, Kalahandi, Subarnapur, 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 the un-probated Wills.
6. On this aspect, it has already been clarified by the Hon'ble Courts
in the ratio of the following decisions :-
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 the
un-probated Wills."
7. 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 of the Government 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 the 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."
8. 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.
9. 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.
10. 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)
11. 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.
12. When, the Tahasildar, Khunta(Opposite Party No.4) has rejected
the Mutation Case No.04 of 2024 filed by the petitioner on dated
19.02.2024 as per Annexure-3 on the basis of the Letter No.16449 dated
07.05.2018 issued by the Government to the Collector, Mayurbhanj, to
which, the Sub-collector, Kaptipada at Udala (Opposite Party No.3)
confirmed in Mutation Appeal Case No.09 of 2024 and when, that Letter
No.16449 dated 07.05.2018 of the Government issued to the Collector,
Mayurbhanj has already been modified as per its subsequent Letter
No.23734 dated 13.08.2019 of the Government issuing the same to the
Collector, Mayurbhanj clarifying that, registration for mutation of the
properties on the basis of an un-probated Will in the district of
Mayurbhanj can be filed, then at this juncture, the grounds for rejection
of the Mutation Case No.04 of 2024 by the Tahasildar, Khunta(Opposite
Party No.4) as well as confirmation of the said order passed by the Sub-
collector, Kaptipada at Udala on dated 07.05.2025 in Mutation Appeal
Case No.09 of 2024 on the ground of no probation of registered Will
dated 29.10.2023 in favour of the petitioner cannot be sustainable under
law.
For which, the order dated 19.02.2024 passed in Mutation Case
No.04 of 2024 by the Tasildar, Khunta(Opposite Party No.4) and order
dated 07.03.2025 passed in Mutation Appeal Case No.09 of 2024 by the
Sub-Collector, Kaptipada at Udala(Opposite Party No.3) are required to
be quashed(setting aside).
Therefore, the writ petition filed by the petitioner is allowed.
13. The Order dated 19.02.2024 passed in Mutation Case No.04 of
2024 by the Tahasildar, Khunta(Opposite Party No.4) vide Annexure-3
and the order dated 07.03.2025 passed in Mutation Appeal No.09 of 2024
by the Sub-Collector, Kaptipada at Udala vide Annexure-4 are
quashed(set aside).
14 The Mutation Case No.04 of 2024 is remitted back to the
Tahasildar, Khunta(Opposite Party No.4) to proceed with the same afresh
as per law formulated formulated guidelines by 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 one month from the date of filing of the certified copy
of this judgment by the petitioner before the Tahasildar, Khunta(Opposite
Party No.4).
15. As such, the writ petition filed by the petitioner is disposed of
finally.
( A.C. Behera )
Judge
Orissa High Court, Cuttack
The 25th of July, 2025/ Jagabandhu, P.A.
Designation: Personal Assistant
