Madhya Pradesh High Court
Krapal Singh vs Brajpal Singh on 7 January, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 7 th OF JANUARY, 2025
MISC. PETITION No. 5632 of 2023
KRAPAL SINGH AND OTHERS
Versus
BRAJPAL SINGH AND OTHERS
Appearance:
Shri Gaurav Mishra - Advocate for the petitioners.
Shri Sarvesh Kumar Sharma - Advocate for the respondents.
ORDER
This petition under Article 227 of the Constitution of India has been filed
against the order dated 24.07.2023 passed by Additional Commissioner, Chambal
Division, Morena, in Case No.152/2019-20/Appeal by which Additional
Commissioner, Chambal Division, Morena, has remanded the matter back to the
Tahsildar to decide the question of mutation afresh.
2 . It is submitted by counsel for petitioners that father of petitioners
namely Pancham Singh, father of respondents namely Rajendra Singh and Lal
Sahab were three brothers. Lal Sahab died issueless. The dispute is confined to
the share of Lal Sahab. It is submitted that Lal Sahab executed a Will in favour of
petitioners, however, respondents got their names mutated on the property of Lal
Sahab in a clandestine manner. The said order was challenged by petitioners and
the order of mutation passed by Tahsildar was set aside by SDO and matter was
remanded back. Thereafter, Tahsildar mutated the names of petitioners on the
basis of Will.
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3. Being aggrieved by said order, respondents preferred an appeal before
SDO which was dismissed by order dated 18.07.2019 passed in Case
No.38/Appeal/2017-18. Being aggrieved by said order, respondents preferred
second appeal before the Additional Commissioner Chambal Division, Morena,
which was registered at Case No.152/2019-20/Appeal. By impugned order dated
24.07.2023, Additional Commissioner, Chambal Division, Morena, has remanded
the matter back to Tahsildar on the ground that Will was not properly examined
by Revenue Courts.
4 . Challenging the order passed by Additional Commissioner, Chambal
Division Morena, it is submitted by counsel for petitioners that respondents had
filed civil suit for partition and permanent injunction. The said civil suit was
registered as RCSA No.64-A/2014. Petitioners filed their written statements and
also placed the photocopy of Will on record. The civil suit filed by respondents
was dismissed by Second Civil Judge Class II, Lahar District Bhind by judgment
and decree dated 05.07.2017 and in paragraph 12 of the aforesaid judgment and
decree, it was mentioned that petitioners have filed a photocopy of Will which has
not been objected by respondents and therefore, it was held that there is no
dispute with regard to the Will executed by Lal Sahab. Therefore, it is submitted
that Additional Commissioner, Chambal Division, Morena, should not have
remanded the matter back to adjudicate the question of validity of Will. It is
further submitted that now the petitioners have also filed suit for declaration of
title on the basis of Will in which respondents have entered their appearance.
5. Per contra , petition is vehemently opposed by counsel for respondents.
Shri Sharma has supported the findings recorded by Additional Commissioner.
6. Heard the counsel for parties.
7 . The moot question for consideration is as to whether Revenue Courts
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have any jurisdiction to adjudicate the genuineness and correctness of Will or not?
The aforesaid question of law is nor more res integra . The Supreme Court in the
case of Jitendra Singh Vs. State of Madhya Pradesh passed in SLP (Civil)
No.13146/2021 has held as under:-
“6. Right from 1997, the law is very clear. In the case of Balwant
Singh v. Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137,
this Court had an occasion to consider the effect of mutation and it
is observed and held that mutation of property in revenue records
neither creates nor extinguishes title to the property nor has it any
presumptive value on title. Such entries are relevant only for the
purpose of collecting land revenue. Similar view has been
expressed in the series of decisions thereafter.
6.1 In the case of Suraj Bhan v. Financial Commissioner, (2007) 6
SCC 186, it is observed and held by this Court that an entry in
revenue records does not confer title on a person whose name
appears in record-of-rights. Entries in the revenue records or
jamabandi have only “fiscal purpose”, i.e., payment of land
revenue, and no ownership is conferred on the basis of such
entries. It is further observed that so far as the title of the property
is concerned, it can only be decided
by a competent civil court. Similar view has been expressed in the
cases of Suman Verma v. Union of India, (2004) 12 SCC 58;
Faqruddin v. Tajuddin (2008) 8 SCC 12; Rajinder Singh v. State
of J&K, (2008) 9 SCC 368; Municipal Corporation, Aurangabad
v. State of Maharashtra, (2015) 16 SCC 689; T. Ravi v. B. Chinna
Narasimha, (2017) 7 SCC 342; Bhimabai Mahadeo Kambekar v.
Arthur Import &
Export Co., (2019) 3 SCC 191; Prahlad Pradhan v. Sonu Kumhar,
(2019) 10 SCC
259; and Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70.”
8 . The Supreme Court in the case of Suraj Bhan and others Vs.
Financial Commissioner and others reported in (2007) 6 SCC 186 has held
as under:-
“There is an additional reason as to why we need not interfere
with that order under Article 136 of the Constitution. It is well
settled that an entry in Revenue Records does not confer title on a
person whose name appears in Record-of-Rights. It is settled law
that entries in the Revenue Records or Jamabandi have only ”fiscal
purpose” i.e. payment of land-revenue, and no ownership isSignature Not Verified
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conferred on the basis of such entries. So far as title to the
property is concerned, it can only be decided by a competent Civil
Court (vide Jattu Ram v. Hakam Singh ). As already noted earlier,
Civil Proceedings in regard to genuineness of Will are pending
with High Court of Delhi. In the circumstances, we see no reason
to interfere with the order passed by the High Court in the writ
petition.”
9. The Supreme Court in the case of H. Lakshmaiah Reddy and others
Vs. L. Venkatesh Reddy reported (2015) 14 SCC 784 has held as under:-
“As rightly contended by the learned Senior Counsel appearing for
the appellants, the first defendant did not relinquish or release his
right in respect of the half-share in the suit property at any point of
time and that is also not the case pleaded by the plaintiff. The
assumption on the part of the High Court that as a result of the
mutation, the first defendant divested himself of the title and
possession of half-share in suit property is wrong. The mutation
entries do not convey or extinguish any title and those entries are
relevant only for the purpose of collection of land revenue. The
observations of this Court in Balwant Singh case are relevant and
are extracted below: (SCC p. 142, paras 21-22)“21. We have considered the rival submissions and we
are of the view that Mr Sanyal is right in his contention
that the courts were not correct in assuming that as a
result of Mutation No. 1311 dated 19-7-1954, Durga
Devi lost her title from that date and possession also
was given to the persons in whose favour mutation was
effected. In Sawarni v. Inder Kaur, Pattanaik, J.,
speaking for the Bench has clearly held as follows:
(SCC p. 227, para 7)
7. …..Mutation of a property in the revenue
record does not create or extinguish title nor
has it any presumptive value on title. It only
enables the person in whose favour mutation
is ordered to pay the land revenue in
question. The learned Additional District
Judge was wholly in error in coming to a
conclusion that mutation in favour of InderSignature Not Verified
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Kaur conveys title in her favour. This
erroneous conclusion has vitiated the entire
judgment.’
22. Applying the above legal position, we hold that the
widow had not divested herself of the title in the suit
property as a result of Mutation No. 1311 dated 19-7-
1954. The assumption on the part of the courts below
that as a result of the mutation, the widow divested
herself of the title and possession was wrong. If that be
so, legally, she was in possession on the date of coming
into force of the Hindu Succession Act and she, as a full
owner, had every right to deal with the suit properties in
any manner she desired.”
In the circumstances, we are of the opinion that the High Court
erred in concluding that the first defendant by his conduct had
acquiesced and divested himself of title of his half-share in suit
property and the said erroneous conclusion is liable to be set
aside.”
10. The Division Bench of this Court in the case of Hariprasad Bairagi Vs.
Radheshyam and others reported in 2022 (1) MPLJ 414 has held as under:-
“9. Appellant has raised the ground of application of Chapter IV
(Mutations in the Khasra) of Rules Regarding Record of Rights
framed under the provisions of MPLRC in which he placed
reliance over Rule 24 and 32. Relevant rules are reproduced
hereinbelow for ready reference:-
“24. The Patwari shall maintain a register in Form E in
which he shall enter village wise every change in
ownership of land due to transfers by registered deeds,
inheritance, survivourship, bequest or lease reported to
him under section 109 or which come to his notice from
intimations received from Gram Panchayat or from any
other source.
32. Disputes shall be decided summarily by the
Tahsildar on the basis of title and not possession. Any
transfer by a person whose name is not recorded in the
Khasra shall not be admitted in mutation by the
Tahsildar. The order shall contain the names of the
parties and witnesses and a brief summary of the
evidence produced by either side together with theSignature Not Verified
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Tahsildar findings thereon.”
These rules are provided in Chapter IV of said Rules which deals
regarding Mutations in the Khasra . On close scrutiny, it appears
that it does not deal in respect of ouster of jurisdiction of Civil
Courts from adjudication of Title. It only talks about maintenance
of register by Patwari in which every change in ownership of land
due to various modes of Transfers gets recorded and other rules
indicate the mechanism for Recording such Rights.
10. So far as Rule 32 is concerned, it does not talk about disputes
arising out of respective rights of parties but it contemplates
disputes in respect of recording entries in Khasra while
undertaking mutation proceedings. Therefore, summary enquiry
by Tahsildar is being envisaged.
11. Rules 24 and 32 of Rules Regarding Record of Rights (under
M. P. Land Revenue Code) do not contemplate adjudication of
title by Tahsildar. It is meant for recording “Consequence of
Adjudication” and “Transfer of Ownership” for mutation purpose.
Summary proceedings as contemplated in Rule 32 are only for the
purpose of recording of rights of parties. It nowhere, gives
authority to Tahsildar to go into the question of title and decide the
title by leading evidence in the proceedings. Tahsildar on his own
accord cannot record evidence and decide the title arising out of
Will. It is the domain of Civil Courts only and understandably so
because Civil Court has all necessary tools of adjudication like
proper pleadings, summoning of witnesses, recording of evidence,
marshaling and appreciation of evidence and other ancillary
mechanism along with trained judicial minds. Full Bench of this
Court in the case of Ramgopal Kanhaiyalal vs. Chetu Batte, 1976
M.P.L.J. (F.B.) 325 AIR 1976 MP 160 categorically held in
somewhat similarly pleaded facts as under:-
“Determination of the question of title is the province of
the Civil Court and unless there is any express provision
to the contrary, exclusion of the jurisdiction of the Civil
Court cannot be assumed or implied. The scheme of the
Code consistently preserves the jurisdiction of the Civil
Court to decide questions of title and that jurisdiction is
not excluded.”
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The Full Bench of this Court taken into account sections 250 and
257 of MPLRC while considering this aspect. Decision of Full
Bench of this Court is found to be a good law by Hon’ble Apex
Court in the case of Rohini Prasad and ors. vs. Kasturchand and
anr., AIR 2000 SC 1283.
12. Recently, in the case of Murari and anr. vs. State of M. P. and
ors., 2020(4) M.P.L.J. 139 coordinate Division Bench of this
Court held that revenue authorities have no jurisdiction to test the
correctness and genuineness of the Will, therefore, the names of
the parties cannot be mutated on the basis of Will if one party
approaches to it because they have a remedy to approach the Civil
Court for declaration of their title.
13. Similarly, learned writ Court does not falter when it mandates
that any proceedings between the parties as contemplated under
section 31 of MPLRC does not take into its ambit the question of
adjudication of title of parties on the basis of a Will. It
contemplates a situation where application for mutation is a
proceeding where all legal heirs are brought on record after the
death of owner of the agriculture holding. It does not contemplate
adjudication of title. Therefore, on this count also, learned writ
Court is right in its approach while relegating the parties to the
civil Court, if they desire so, to get the Will tested on the altar of
evidence to be led in civil suit before competent civil Court.”
11. This Court in the case of Anand Kumar Jain and another Vs. Chandra
Kumar Jain and others passed in MP No.4458/2023 decided on 16th of
February, 2024 has held as under:-
“16. There is no doubt that a title can be acquired by virtue of Will
and once the title can be acquired, then the name can also be
mutated in the revenue records irrespective of fact as to whether
there is any rule in that regard or not? Even otherwise as per
Niyam, 2018, the names can be mutated on the basis of Will.
17. It is the case of petitioner that in case if somebody is aggrieved
by Will, then he has to file a civil suit challenging the Will. The
aforesaid submission made by counsel for applicant cannot be
accepted. If somebody wants to take advantage of a document,
then first of all, he has to prove the same in accordance with law.
Sections 67 and 68 of Evidence Act prescribe the requirements
and nature of proof which must be satisfied by the parties, who
relies on a document in the Court of law.
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18. It is well established principle of law that party propounding a
Will or otherwise making a claim under a Will is under obligation
to prove the document. Unlike other document Will is a document
which speaks from the death of testator
and the testator, who has already migrated to the other world
cannot appear and depose as to whether he has executed such
document or not? The propounder is required to show by
satisfactory evidence that Will was signed by testator, that testator
at the relevant time was in a sound and disposing state of mind,
that he understood the nature and effect of dispositions and had put
his signature on the document of his own volition.
19. Furthermore, Will may be surrounded by suspicious
circumstances and burden is on the propounder of the Will not
only to prove the document but to remove all the suspicious
circumstances. The Supreme Court in the case of H. Venkatachala
Iyengar v. B.N. Thimmajamma and others reported in AIR 1959
SC 443 has held as under:
“18. What is the true legal position in the matter of proof of
wills? It is well-known that the proof of wills presents a
recurring topic for decision in courts and there are a large
number of judicial pronouncements on the subject. The party
propounding a will or otherwise making a claim under a will
is no doubt seeking to prove a document and, in deciding
how it is to be proved, we must inevitably refer to the
statutory provisions which govern the proof of documents.
Sections 67 and 68 of the Evidence Act are relevant for this
purpose. Under Section 67, if a document is alleged to be
signed by any person, the signature of the said person must
be proved to be in his handwriting, and for proving such a
handwriting under Sections 45 and 47 of the Act the opinions
of experts and of persons acquainted with the handwriting of
the person concerned are made relevant. Section 68 deals
with the proof of the execution of the document required by
law to be attested; and it provides that such a document shall
not be used as evidence until one attesting witness at least
has been called for the purpose of proving its execution.
These provisions prescribe the requirements and the nature of
proof which must be satisfied by the party who relies on a
document in a court of law. Similarly, Sections 59 and 63 of
the Indian Succession Act are also relevant. Section 59
provides that every person of sound mind, not being a minor,
may dispose of his property by will and the three illustrations
to this section indicate what is meant by the expression “a
person of sound mind” in
the context. Section 63 requires that the testator shall sign or
affix his mark to the will or it shall be signed by some other
person in his presence and by his direction and that the
signature or mark shall be so made that it shall appear that it
was intended thereby to give effect to the writing as a will.
This section also requires that the will shall be attested by
two or more witnesses as prescribed. Thus the question as toSignature Not Verified
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whether the will set up by the propounder is proved to be the
last will of the testator has to be decided in the light of these
provisions. Has the testator signed the will? Did he
understand the nature and effect of the dispositions in the
will? Did he put his signature to the will knowing what it
contained? Stated broadly it is the decision of these questions
which determines the nature of the finding on the question of
the proof of wills. It would prima facie be true to say that the
will has to be proved like any other document except as to
the special requirements of attestation prescribed by Section
63 of the Indian Succession Act. As in the case of proof of
other documents so in the case of proof of wills it would be
idle to expect proof with mathematical certainty. The test to
be applied would be the usual test of the satisfaction of the
prudent mind in such matters.
19. However, there is one important feature which
distinguishes wills from other documents. Unlike other
documents the will speaks from the death of the testator, and
so, when it is propounded or produced before a court, the
testator who has already departed the world cannot say
whether it is his will or not; and this aspect naturally
introduces an element of solemnity in
the decision of the question as to whether the document
propounded is proved to be the last will and testament of the
departed testator. Even so, in dealing with the proof of wills
the court will start on the same enquiry as in the case of the
proof of documents. The propounder would be called upon to
show by satisfactory evidence that the will was signed by the
testator, that the testator at the relevant time was in a sound
and disposing state of mind, that he understood the nature
and effect of the dispositions and put his signature to the
document of his own free will. Ordinarily when the evidence
adduced in support of the will is disinterested, satisfactory
and sufficient to prove the sound and disposing state of the
testator’s mind and his signature as required by law, courts
would be justified in making a finding in favour of the
propounder. In other words, the onus on the propounder can
be taken to be discharged on proof of the essential facts just
indicated.
20. There may, however, be cases in which the execution of
the will may be surrounded by suspicious circumstances. The
alleged signature of the testator may be very shaky and
doubtful and evidence in support of the propounder’s case
that the signature, in question is the signature of the testator
may not remove the doubt created by the appearance of the
signature; the condition of the testator’s mind may appear to
be very feeble and debilitated; and evidence adduced may not
succeed in removing the legitimate doubt as to the mental
capacity of the testator; the dispositions made in the will may
appear to be unnatural, improbable or unfair in the light of
relevant circumstances; or, the will may otherwise indicateSignature Not Verified
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that the said dispositions may not be the result of the
testator’s free will and mind. In such cases the court would
naturally expect that all legitimate suspicions should be
completely removed before the document is accepted as the
last will of the testator. The presence of such suspicious
circumstances naturally tends to make the initial onus very
heavy; and, unless it is satisfactorily discharged, courts
would be reluctant to treat the document as the last will of
the testator. It is true that, if a caveat is filed alleging the
exercise of undue influence, fraud or coercion in respect of
the execution of the will propounded, such pleas may have to
be proved by the caveators; but, even without such pleas
circumstances may raise a doubt as to whether the testator
was acting of his own free will in executing the will, and in
such circumstances, it would be a part of the initial onus to
remove any such legitimate doubts in the matter.
21. Apart from the suspicious circumstances to which we
have just referred, in some cases the wills propounded
disclose another infirmity. Propounders themselves take a
prominent part in the execution of the wills which confer on
them substantial benefits. If it is shown that the propounder
has taken a prominent part in the execution of the will and
has received substantial benefit under it, that itself is
generally treated as a suspicious circumstance attending the
execution of the will and the propounder is required to
remove the said suspicion by clear and satisfactory evidence.
It is in connection with wills that present such suspicious
circumstances that decisions of English courts often mention
the test of the satisfaction of judicial conscience. It may be
that the reference to judicial conscience in this connection is
a heritage from similar observations made by ecclesiastical
courts in England when they exercised jurisdiction with
reference to wills; but any objection to the use of the word
“conscience” in this context would, in our opinion, be purely
technical and academic, if not pedantic. The test merely
emphasizes that, in determining the question as to whether an
instrument produced before the court is the last will of the
testator, the court is deciding a solemn question and it must
be fully satisfied that it had been validly executed by the
testator who is no longer alive.
22. It is obvious that for deciding material questions of fact
which arise in applications for probate or in actions on wills,
no hard and fast or inflexible rules can be laid down for the
appreciation of the evidence. It may,
however, be stated generally that a propounder of the will has
to prove the due and valid execution of the will and that if
there are any suspicious circumstances surrounding the
execution of the will the propounder must remove the said
suspicions from the mind of the court by cogent and
satisfactory evidence. It is hardly necessary to add that theSignature Not Verified
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result of the application of these two general and broad
principles would always depend upon the facts and
circumstances of each case and on the nature and quality of
the evidence adduced by the parties. It is quite true that, as
observed by Lord Du Parcq in Harmes v. Hinkson [(1946) 50
CWN 895] “where a will is charged with suspicion, the rules
enjoin a reasonable scepticism, not an obdurate persistence in
disbelief. They do not demand from the Judge, even in
circumstances of grave suspicion, a resolute and
impenetrable incredulity.
He is never required to close his mind to the truth”. It would
sound platitudinous to say so, but it is nevertheless true that
in discovering truth even in such cases the judicial mind
must always be open though vigilant, cautious and
circumspect.
**** **** ****
29. According to the decisions in Fulton v. Andrew [(1875)
LR 7 HL 448] “those who take a benefit under a will, and
have been instrumental in preparing or obtaining it, have
thrown upon them the onus of showing the righteousness of
the transaction”. “There is however no unyielding rule of law
(especially where the ingredient of fraud enters into the case)
that, when it has been proved that a testator, competent in
mind, has had a will read over to him, and has thereupon
executed it, all further enquiry is shut out”. In this case, the
Lord Chancellor, Lord Cairns, has cited with approval the
well-known observations of Baron Parke in the case of Barry
v. Butlin [(1838) 2 Moo PC 480, 482] . The two rules of law
set out by Baron Parke are:”first, that the onus probandi lies
in every case upon the party propounding a will; and he must
satisfy the conscience of the court that the instrument so
propounded is the last will of a free and capable testator”;
“the second is, that, if a party writes or prepares a will under
which he takes a benefit, that is a circumstance that ought
generally to excite the suspicion of the court and calls upon it
to be vigilant and zealous in examining the evidence in
support of the instrument in favour of which it ought not to
pronounce unless the suspicion is removed, and it is judicially
satisfied that the paper propounded does express the true will
of the deceased”. It is hardly necessary to add that the
statement of these two rules has now attained the status of a
classic on the subject and it is cited by all text books on wills.
The will propounded in this case was directed to be tried at
the Assizes by the Court of Probate. It was tried on six
issues. The first four issues referred to the sound and
disposing state of the testator’s mind and the fifth to his
knowledge and approval of the contents of the will. The sixth
was whether the testator knew and approved of the residuary
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were made the residuary legatees and were appointed
executors. Evidence was led at the trial and the Judge asked
the opinion of the jurors on every one of the issues. The
jurors found in favour of the propounders on the first five
issues and in favour of the opponents on the sixth. It appears
that no leave to set aside the verdict and enter judgment for
the propounders notwithstanding the verdict on the sixth
issue was reserved; but when the case came before the Court
of Probate a rule was obtained to set aside the verdict
generally and have a new trial or to set aside the verdict on
the sixth issue for misdirection. It was in dealing with the
merits of the finding on the sixth issue that the true legal
position came to be considered by the House of Lords. The
result of the decision was that the rule obtained for a new trial
was discharged, the order of the Court of Probate of the
whole will was reversed and the matter was remitted to the
Court of Probate to do what was right with regard to the
qualified probate of the will.
30. The same principle was emphasized by the Privy Council
in Vellasawmy Servai v. Sivaraman Servai [(1929) LR 57 IA
96] where it was held that, where a will is propounded by the
chief beneficiary under it, who has taken a leading part in
giving instructions for its preparation and in procuring its
execution, probate should not be granted unless the evidence
removes suspicion and clearly proves that the testator
approved the will.
31. In Sarat Kumari Bibi v. Sakhi Chand [(1928) LR 56 IA
62] the Privy Council made it clear that “the principle which
requires the propounder to remove suspicions from the mind
of the Court is not confined only to cases where the
propounder takes part in the execution of the will and
receives benefit under it. There may be other suspicious
circumstances attending on the execution of the will and
even in such cases it is the duty of the propounder to remove
all clouds and satisfy the conscience of the court that the
instrument propounded is the last will of the testator”. This
view is supported by the observations made by Lindley and
Davey, L. JJ., in Tyrrell v. Painton [(1894) P 151, 157, 159] .
“The rule in Barry v. Butlin [(1838) 2 Moo PC 480, 482] ,
Fulton v. Andrew [(1875) LR 7 HL 448] and Brown v.
Fisher [(1890) 63 LT 465] , said Lindley, L.J., “is not in my
mind confined to the single case in which the will is prepared
by or on the instructions of the person taking large benefits
under it but extends to all cases in which circumstances exist
which excite the suspicions of the court”.
32. In Rash Mohini Dasi v. Umesh Chunder Biswas [(1898)
LR 25 IA 109] it appeared that though the will was fairly
simple and not very long the making of it was from first to
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last the doing of Khetter, the manager and trusted adviser of
the alleged testator. No previous or independent intention of
making a will was shown and the evidence that the testator
understood the business in which his adviser engaged him
was not sufficient to justify the grant of probate. In this case
the application for probate made by the widow of Mohim
Chunder Biswas was opposed on the ground that the testator
was not in a sound and disposing state of mind at the
material time and he could not have understood the nature
and effect of its contents. The will had been admitted to the
probate by the District Judge but the High Court had reversed
the said order. In confirming the view of the High Court the
Privy Council made the observations to which we have just
referred.
33. The case of Shama Charn Kundu v. Khettromoni Dasi
[(1899) ILR 27 Cal 522] on the other hand, was the case of a
will the execution of which was held to be not surrounded by
any suspicious circumstances. Shama Charn, the propounder
of the will, claimed to be the adopted son of the testator. He
and three others were appointed executors of the will. The
testator left no natural son but two daughters and his widow.
By his will the adopted son obtained substantial benefit. The
probate of the will with the exception of the last paragraph
was granted to Shama Charn by the trial Judge; but, on
appeal the application for probate was dismissed by the High
Court on the ground that the suspicions attending on the
execution of the will had not been satisfactorily removed by
Shama Charn. The matter was then taken before the Privy
Council; and Their Lordships held that, since the adoption of
Shama Charn was proved, the fact that he took part in the
execution of the will and obtained benefit under it cannot be
regarded as a suspicious circumstance so as to attract the rule
laid down by Lindley, L.J., in Tyrrell v. Painton [(1894) P
151, 157, 159] . In Bai Gungabai v. Bhugwandas Valji
[(1905) ILR 29 Bom 530] the Privy Council had to deal with
a will which was admitted to probate by the first court, but on
appeal the order was varied by excluding therefrom certain
passages which referred to the deed-poll executed on the
same day by the testator and to the remuneration of the
solicitor who prepared the will and was appointed an
executor and trustee thereof. The Privy Council held that “the
onus was on the solicitor to satisfy the court that the passages
omitted expressed the true will of the deceased and that the
court should be diligent and zealous in examining the
evidence in its support, but that on a consideration of the
whole of the evidence (as to which no rule of law prescribed
the particular kind required) and of the circumstances of the
case the onus was discharged”. In dealing with the question
as to whether the testator was aware that the passages
excluded by the appeal court from the probate formed part of
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the instrument, the Privy Council examined the evidence
bearing on the point and the probabilities. In conclusion
Their Lordships differed from the view of the appeal court
that there had been a complete failure of the proof that the
deed-poll correctly represented the intentions of the testator
or that he understood or approved of its contents and so they
thought that there were no grounds for excluding from the
probate the passages in the will which referred to that deed.
They, however, observed that it would no doubt have been
more prudent and business-like to have obtained the services
of some independent witnesses who might have been trusted
to see that the testator fully understood what he was doing
and to have secured independent evidence that clause 26 in
particular was called to the testator’s attention. Even so, Their
Lordships expressly added that in coming to the conclusion
which they had done they must not be understood as
throwing the slightest doubt on the principles laid down in
Fulton v. Andrew [(1875) LR 7 HL 448] and other similar
cases referred to in the argument.”
20. The Supreme Court in the case of Surendra Pal and others v.
Dr. (Mrs.) Saraswati Arora and another, reported in (1974) 2 SCC
600 has held that propounder has to show that the Will was signed
by testator, that he was at the relevant time in a sound disposing
state of mind, that he understood the nature and effect of the
dispositions, that he put his signature to the testament of his own
free Will, that he has signed it in the presence of the two witnesses
who attested it in his presence and in the presence of each other.
Once these elements are established, the onus which rests on the
propounder is discharged. Furthermore, there may be cases in
which the execution of the Will itself is surrounded by suspicious
circumstances, such as, where the signature is doubtful, the
testator is of feeble mind or is overawed by powerful minds
interested in getting his property, or where in the light of relevant
circumstances the dispositions appears to be the unnatural,
improbable and unfair, or where there are other reasons for
doubting that the dispositions of the Will are not the result of
testator’s free Will and mind. It has also been held that in all such
cases where there may be legitimate suspicious circumstances
those must be reviewed and satisfactorily explained before the
Will is accepted and the onus is always on the propounder to
explain them to the satisfaction of the Court before it could be
accepted as genuine.
21. TheSupreme Court in the case of Gorantla Thataiah v.
Thotakura Venkata Subbaiah and others, reported in AIR 1968 SC
1332 has held as it is for those who propound the Will to prove the
same.
22. The Supreme Court in the case of Murthy and others v. C.
Saradambal and others, reported in (2022) 3 SCC 209 has held that
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intention of testator to make testament must be proved, and
propounder of Will must examine one or more attesting witnesses
and remove all suspicious circumstances with regard to execution
of Will. It has been held as under:
“31. One of the celebrated decisions of this Court on proof of
a will, in H. Venkatachala Iyengar v. B.N. Thimmajamma
[H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959
SC 443] is in H. Venkatachala Iyengar v. B.N.
Thimmajamma, wherein this Court has clearly distinguished
the nature of proof required for a testament as opposed to any
other document. The relevant portion of the said judgment
reads as under: (AIR p. 451, para 18)
“18. … The party propounding a will or otherwise
making a claim under a will is no doubt seeking to
prove a document and, in deciding how it is to be
proved, we must inevitably refer to the statutory
provisions which govern the proof of documents.
Sections 67 and 68 of the Evidence Act are relevant for
this purpose. Under Section 67, if a document is alleged
to be signed by any person, the signature of the said
person must be proved to be in his handwriting, and for
proving such a handwriting under Sections 45 and 47 of
the Act the opinions of experts and of persons
acquainted with the handwriting of the person
concerned are made relevant. Section 68 deals with the
proof of the execution of the document required by law
to be attested; and it provides that such a document
shall not be used as evidence until one attesting witness
at least has been called for the purpose of proving its
execution. These provisions prescribe the requirements
and the nature of proof which must be satisfied by the
party who relies on a document in a court of law.
Similarly, Sections 59 and 63 of the Succession Act are
also relevant. Section 59 provides that every person of
sound mind, not being a minor, may dispose of his
property by will and the three illustrations to this
section indicate what is meant by the expression “a
person of sound mind” in the context. Section 63
requires that the testator shall sign or affix his mark to
the will or it shall be signed by some other person in his
presence and by his direction and that the signature or
mark shall be so made that it shall appear that it was
intended thereby to give effect to the writing as a will.
This section also requires that the will shall be attested
by two or more witnesses as prescribed. Thus, the
question as to whether the will set up by the propounder
is proved to be the last will of the testator has to be
decided in the light of these provisions. Has the testator
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to the will knowing what it contained? Stated broadly it
is the decision of these questions which determines the
nature of the finding on the question of the proof of
wills. It would prima facie be true to say that the will
has to be proved like any other document except as to
the special requirements of attestation prescribed by
Section 63 of the Indian Succession Act. As in the case
of proof of other documents so in the case of proof of
wills it would be idle to expect proof with mathematical
certainty. The test to be applied would be the usual test
of the satisfaction of the prudent mind in such matters.”
32. In fact, the legal principles with regard to the proof of a
will are no longer res integra. Section 63 of the Succession
Act, 1925 and Section 68 of the Evidence Act, 1872, are
relevant in this regard. The propounder of the will must
examine one or more attesting witnesses and the onus is
placed on the propounder to remove all suspicious
circumstances with regard to the execution of the will.
33. In the abovenoted case, this Court has stated that the
following three aspects must be proved by a propounder:
(Bharpur Singh case [Bharpur Singh v. Shamsher Singh,
(2009) 3 SCC 687 : (2009) 1 SCC (Civ) 934] , SCC p. 696,
para 16)
“16. … (i) that the will was signed by the testator in a
sound and disposing state of mind duly understanding
the nature and effect of disposition and he put his
signature on the document of his own free will, and
(ii) when the evidence adduced in support of the will is
disinterested, satisfactory and sufficient to prove the
sound and disposing state of the testator’s mind and his
signature as required by law, courts would be justified
in making a finding in favour of propounder, and
(iii) if a will is challenged as surrounded by suspicious
circumstances, all such legitimate doubts have to be
removed by cogent, satisfactory and sufficient evidence
to dispel suspicion. In other words, the onus on the
propounder can be taken to be discharged on proof of
the essential facts indicated therein.”
34. In Jaswant Kaur v. Amrit Kaur [Jaswant Kaur v. Amrit
Kaur, (1977) 1 SCC 369] , this Court pointed out that when a
will is allegedly shrouded in suspicion, its proof ceases to be
a simple lis between the plaintiff and the defendant. What
generally is an adversarial proceeding, becomes in such
cases, a matter of the court’s conscience and then, the true
question which arises for consideration is, whether, the
evidence let in by the propounder of the will is such as would
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satisfy the conscience of the court that the will was duly
executed by the testator. It is impossible to reach such a
satisfaction unless the party which sets up the will offers
cogent and convincing explanation with regard to
any suspicious circumstance surrounding the making of the
will.
35. In Bharpur Singh v. Shamsher Singh [Bharpur Singh v.
Shamsher Singh, (2009) 3 SCC 687 : (2009) 1 SCC (Civ)
934] , this Court has narrated a few suspicious circumstance,
as being illustrative but not exhaustive, in the following
manner: (SCC p. 699, para 23)
“23. Suspicious circumstances like the following may
be found to be surrounded in the execution of the will:
(i) The signature of the testator may be very shaky
and doubtful or not appear to be his usual signature.
(ii) The condition of the testator’s mind may be very
feeble and debilitated at the relevant time.
(iii) The disposition may be unnatural, improbable or
unfair in the light of relevant circumstances like
exclusion of or absence of adequate provisions for the
natural heirs without any reason.
(iv) The dispositions may not appear to be the result
of the testator’s free will and mind.
(v) The propounder takes a prominent part in the
execution of the will.
(vi) The testator used to sign blank papers.
(vii) The will did not see the light of the day for long.
(viii) Incorrect recitals of essential facts.”
36. It was further observed in Shamsher Singh case [Bharpur
Singh v. Shamsher Singh, (2009) 3 SCC 687 : (2009) 1 SCC
(Civ) 934] that the circumstances narrated hereinbefore are
not exhaustive. Subject to offering of a reasonable
explanation, existence thereof must be taken into
consideration for the purpose of arriving at a finding as to
whether the execution of the will had been duly proved or
not. It may be true that the will was a registered one, but the
same by itself would not mean that the statutory requirements
of proving the will need not be complied with.
37. In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao
[Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, (2006)
13 SCC 433] , in paras 34 to 37, this Court has observed as
under: (SCC pp. 447-48)
“34. There are several circumstances which would have
been held to be described by this Court as suspicious
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circumstances:
(i) when a doubt is created in regard to the condition of
mind of the testator despite his signature on the will;
(ii) When the disposition appears to be unnatural or
wholly unfair in the light of the relevant circumstances;
(iii) where propounder himself takes prominent part in
the execution of will which confers on him substantial
benefit.
***
35. We may not delve deep into the decisions cited at
the Bar as the question has recently been considered by
this Court in B. Venkatamuni v. C.J. Ayodhya Ram
Singh [B. Venkatamuni v. C.J. Ayodhya Ram Singh,
(2006) 13 SCC 449] , wherein this Court has held that
the court must satisfy its conscience as regards due
execution of the will by the testator and the court would
not refuse to probe deeper into the matter only because
the signature of the propounder on the will is otherwise
proved.
36. The proof of a will is required not as a ground of
reading the document but to afford the Judge reasonable
assurance of it as being what it purports to be.
37. We may, however, hasten to add that there exists a
distinction where suspicions are well founded and the
cases where there are only suspicions alone. Existence
of suspicious circumstances alone may not be sufficient.
The court may not start with a suspicion and it should
not close its mind to find the truth. A resolute and
impenetrable incredulity is not demanded from the
Judge even if there exist circumstances of grave
suspicion.”
38. This Court in Anil Kak v. Sharada Raje [Anil Kak
v. Sharada Raje, (2008) 7 SCC 695] , held as under:
(Bharpur Singh case [Bharpur Singh v. Shamsher
Singh, (2009) 3 SCC 687 : (2009) 1 SCC (Civ) 934] ,
SCC p. 698, para 20)
“20. This Court in Anil Kak v. Sharada Raje [Anil
Kak v. Sharada Raje, (2008) 7 SCC 695] opined
that the court is required to adopt a rational
approach and is furthermore required to satisfy its
conscience as existence of suspicious
circumstances plays an important role, holding:
(SCC p. 714, paras 52-55)
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’52. Whereas execution of any other
document can be proved by proving the
writings of the document or the contents of it
as also the execution thereof, in the event
there exists suspicious circumstances the
party seeking to obtain probate and/or letters
of administration with a copy of the will
annexed must also adduce evidence to the
satisfaction of the court before it can be
accepted as genuine.
53. As an order granting probate is a
judgment in rem, the court must also satisfy
its conscience before it passes an order.
54. It may be true that deprivation of a due
share by (sic to) the natural heir by itself may
not be held to be a suspicious circumstance
but it is one of the factors which is taken into
consideration by the courts before granting
probate of a will.
55. Unlike other documents, even animus
attestandi is a necessary ingredient for
proving the attestation.’ ”
39. Similarly, in Leela Rajagopal v. Kamala Menon
Cocharan [Leela Rajagopal v. Kamala Menon
Cocharan, (2014) 15 SCC 570 : (2015) 4 SCC (Civ)
267] , this Court opined as under: (SCC p. 576, para 13)
“13. A will may have certain features and may
have been executed in certain circumstances which
may appear to be somewhat unnatural. Such
unusual features appearing in a will or the
unnatural circumstances surrounding its execution
will definitely justify a close scrutiny before the
same can be accepted. It is the overall assessment
of the court on the basis of such scrutiny; the
cumulative effect of the unusual features and
circumstances which would weigh with the court
in the determination required to be made by it. The
judicial verdict, in the last resort, will be on the
basis of a consideration of all the unusual features
and suspicious circumstances put together and not
on the impact of any single feature that may be
found in a will or a singular circumstance that may
appear from the process leading to its execution or
registration. This, is the essence of the repeated
pronouncements made by this Court on the subject
including the decisions referred to and relied upon
before us.”
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23. Similar law has been laid down by Supreme Court in the case
of Dhanpat v. Sheo Ram (Deceased) through legal representatives
and others, reported in (2020) 16 SCC 209 and in the case of V.
Kalyanaswamy (Dead) by legal representatives and another v. L.
Bakthavatsalam (Dead) by legal representatives and others,
reported in (2021) 16 SCC 543.
24. The Supreme Court in the case of Bharpur Singh and others v.
Shamsher Singh, reported in (2009) 3 SCC 687 has held that it
may be true that Will was a registered one, but the same by itself
would not mean that the statutory requirements of proving the Will
need not be complied with. In terms of Section 63(c), Succession
Act, 1925 and Section 68, Evidence Act, 1872, the propounder of
a Will must prove its execution by examining one or more
attesting witnesses and propounder of Will must prove that the
Will was signed by the testator in a sound and disposing state of
mind duly understanding the nature and effect of disposition and
he put his signature on the document of his own free Will.
25. The Supreme Court in the case of Niranjan Umeshchandra
Joshi v. Mrudula Jyoti Rao and others, reported in (2006) 13 SCC
433 has held that mere proof that testator had signed the Will is
not enough. It has also to be proved that testator has signed out of
his free will having a sound disposition of mind and not a feeble
and debilitated mind, understanding well the nature and effect
thereof. The Court will also not refuse to probe deeper in the
matter merely because propounder’s signature on the Will is
proved. Similar law has been laid down by Supreme Court in the
cases of Savithri and others v. Karthyayani Amma and others,
reported in (2007) 11 SCC 621, Balathandayutham and another v.
Ezhilarasan, reported in (2010) 5 SCC 770, Pentakota
Satyanarayana and others v. Pentakota Seetharatnam and others,
reported in (2005) 8 SCC 67 and Meenakshiammal (Dead)
through legal representatives and others v. Chandrasekaran and
another, reported in (2005) 1 SCC 280.
26. Therefore, in order to take advantage of Will for getting his
name mutated in the revenue records, beneficiary must prove that
Will was a genuine one and must remove all suspicious
circumstances which are attached to it by examining at least one
of the attesting witnesses as well as by proving the mental status
of testator, willingness of testator, understanding of testator etc.
All these findings cannot be given by revenue authorities.
27. The Supreme Court in the case of Jitendra Singh v. State of
Madhya Pradesh by order dated 06.09.2021 passed in SLP (civil)
No.13146/2021 has held as under:
“6. Right from 1997, the law is very clear. In the case of
Balwant Singh v. Daulat Singh (D) By Lrs., reported in
(1997) 7 SCC 137, this Court had an occasion to consider the
effect of mutation and it is observed and held that mutation ofSignature Not Verified
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property in revenue records neither creates nor extinguishes
title to the property nor has it any presumptive value on title.
Such entries are relevant only for the purpose of collecting
land revenue. Similar view has been expressed in the series
of decisions thereafter.
6.1 In the case of Suraj Bhan v. Financial Commissioner,
(2007) 6 SCC 186, it is observed and held by this Court that
an entry in revenue records does not confer title on a person
whose name appears in record-of-rights. Entries in the
revenue records or jamabandi have only “fiscal purpose”,
i.e., payment of land revenue, and no ownership is conferred
on the basis of such entries. It is further observed that so far
as the title of the property is concerned, it can only be
decided by a competent civil court. Similar view has been
expressed in the cases of Suman Verma v. Union of India,
(2004) 12 SCC 58; Faqruddin v. Tajuddin (2008) 8 SCC 12;
Rajinder Singh v. State of J&K, (2008) 9 SCC 368;
Municipal Corporation, Aurangabad v. State of Maharashtra,
(2015) 16 SCC 689; T. Ravi v. B. Chinna Narasimha, (2017)
7 SCC 342; Bhimabai Mahadeo Kambekar v. Arthur Import
& Export Co., (2019) 3 SCC 191; Prahlad Pradhan v. Sonu
Kumhar, (2019) 10 SCC 259; and Ajit Kaur v. Darshan
Singh, (2019) 13 SCC 70.”
28. Counsel for applicant also conceded that revenue authorities
have no jurisdiction to decide the question of title but only
contention is that since mutation can also be done on the basis of
Will, therefore, the revenue authorities are well within their rights
to mutate the name of a person on the basis of Will. Unfortunately
this general proposition of law which is being suggested by
counsel for applicant cannot be accepted unless and until Will is
duly proved, it cannot be acted upon and the revenue authorities
have no jurisdiction to decide the authenticity, correctness,
genuineness of a Will which can only be done by Civil Court.
Thus, in the light of fact that revenue authorities cannot decide the
genuineness of the Will, the rule which permits the mutation of
name of a beneficiary on the basis of Will has to be interpreted
that the name of a beneficiary can be mutated provided the Will is
duly proved and for that purposes the beneficiary has to approach
the Civil Court for declaration of his title. Even otherwise in none
of the previous judgments it has been held that in spite of a
declaration by Civil Court the name of a beneficiary of a Will
cannot be mutated. The word “Will” as mentioned in Rules, 2018
necessarily means a valid and genuine Will and not any piece of
paper. Therefore, even in the light of Niyam, 2018 it cannot be
said that there is any material change in the law.
29. It is submitted by counsel for petitioners that a Coordinate
Bench of this Court by order dated 07.10.2023 passed in
W.P.No.3499/2022 has already referred the question as to whether
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revenue authorities have a jurisdiction to mutate the names of the
beneficiaries of a will or not. However, it is submitted that High
Court cannot held as to whether judgment passed by Supreme
Court is per incuriam or not?
30. It is submitted by counsel for respondents that since, the
aforesaid question is already under reference, therefore the hearing
of this case may be deferred awaiting outcome of
W.P.No.3499/2022.
31. Considered the submission made by counsel for parties.
32. It is well established principle of law that even if an order has
been referred to a Larger Bench but still it would hold the field
unless and until the same is set aside. The prayer for deferment of
hearing of this case is hereby rejected.”
1 2 . Thus, it is clear that Revenue Authorities have no jurisdiction to
adjudicate upon the correctness of the Will and it is only the Civil Court which
can adjudicate the same. So far as the observations made by Trial Court in
judgment and decree passed in RCSA No.64-A/2014 is concerned, the same
cannot be treated as findings on merits because photocopy of Will was filed and
burden is on the propounder of Will to prove its genuineness. Furthermore,
petitioner has also filed a civil suit for declaration of title on the basis of Will.
1 3 . Under these circumstances, once the Revenue Courts have no
jurisdiction to mutate the names of propounder by adjudicating the correctness
and genuineness of Will, then this Court is of considered opinion that Additional
Commissioner Chambal Division, Morena should not have remanded the matter
back and in fact, should have set aside the orders passed by Tahsildar dated
19.09.2017 in Case No.80/10-11/A-6 as well as order dated 18.07.2019 passed by
SDO (Revenue) Lahar, District Bhind in Appeal No.38/Appeal/2017-18.
1 4 . Under these circumstances, this petition is allowed. Order dated
24.07.2023 passed by Additional Commissioner, Chambal Division, Morena,
passed in Case No.152/2019-20/Appeal, order dated 19.09.2017 passed by
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Tahsildar, Lahar in Case No.80/10-11/A-6 and orders dated 18.07.2019 passed by
SDO, Lahar Bhind in Appeal No.38/Appeal/2017-18 are hereby set aside .
Application filed by respondents for mutation is hereby dismissed.
15. Since a civil suit has already been instituted by petitioners to establish
their title on the basis of Will, therefore, it is directed that till civil litigation is
decided thereby adjudicating the genuineness of the Will, names of all the heirs of
Lal Sahab shall be mutated in the revenue records. Such mutation shall be subject
to final outcome of the civil litigation.
16. Parties shall not create any third party right in order to avoid any
confusion and multiplicity of litigation. It is made clear that this dispute is only
in respect of share of Lal Sahab and not the independent shares of Pancham Singh
and Rajendra Singh or their legal representatives.
17. With aforesaid observation, this petition is allowed.
(G. S. AHLUWALIA)
JUDGE
Rashid
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