Orissa High Court
Sk. Abdul Obrad @ Ohid vs State Of Orissa on 17 October, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.28267 of 2025
(In the matter of an application under Article 226 and 227 of the
Constitution of India)
Sk. Abdul Obrad @ Ohid .... Petitioner
-versus-
State of Orissa, represented through .... Opposite Parties
its Secretary Revenue and Disaster
Management Department,
Bhubaneswar and another
Appeared in this case:-
For Petitioner : Mr. D.Pr. Jena, Advocate
For Opposite Parties : Ms. Jyoshnamayee Sahoo,
Learned Additional Standing Counsel
CORAM:
JUSTICE A.C. BEHERA
JUDGMENT
Date of hearing : 15.10.2025 / date of judgment : 17.10.2025
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) the order dated 09.09.2025 (Annexure-5) passed in a Mutation
Case No.3778 of 2024 by the Tahasildar, Dhenkanal Sadar(Opposite
Party No.2), because, the Tahasildar, Dhenkanal Sadar(Opposite Party
No.2) rejected the mutation case of the petitioner, assigning the reasons
that,
"the petitioner had applied for mutation of the case land to his
name on the basis of a Will executed by Satyananda Nayak, but, the said
Will has not been probated. For which, due to non-probation of Will, the
mutation case filed by the petitioner is rejected."
For which, the petitioner has challenged that order of rejection of
his Mutation Case No.3778 of 2024 passed on dated 09.09.2025
(Annexure-5) by the Tahasildar, Dhenkanal Sadar (Opposite Party No.2)
by filing this writ petition praying for quashing(setting aside) that
Annexure-5.
2. I have already heard from the learned counsel for the petitioner
and learned Additional Standing Counsel for the State.
3. 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 un-probated Wills.
4. 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."
5. 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 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."
6. 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.
7. 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.
8. 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)
9. 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.
10. 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 writ petitioner (applicant in Mutation Case
No.3778 of 2024), because, the said Will dated 08.03.2017(Annexure-1)
has been executed in the District of Dhenkanal, which was under the ex-
princely State, then at this juncture, order dated 09.09.2025(Annexure-5)
passed by the Tahasildar, Dhenkanal Sadar(Opposite Party No.2)
rejecting the Mutation Case No.3778 of 2024 on the ground of non-
probation of that Will cannot be sustainable under law.
For which, order dated 09.09.2025 (Annexure-5) passed by the
Opposite Party No.2 (Tahasildar, Dhenkanal Sadar) in Mutation Case
No.3778 of 2024 is to be quashed(set aside).
Therefore, the writ petition filed by the petitioner is allowed. The
order dated 09.09.2025 (Annexure-5) passed in Mutation Case No.3778
of 2024 by the Opposite Party No.2(Tahasildar, Dhenkanal Sadar) is
quashed(set aside).
11. The Tahasildar, Dhenkanal Sadar(Opposite Party No.2) is directed
to consider the mutation case vide Mutation Case No.3778 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 one
month from the date of filing of the certified copy of this judgment by the
petitioner before the Opposite Party No.2.
12. 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 October, 2025/ Jagabandhu, P.A.
Designation: Personal Assistant
