Madhya Pradesh High Court
Urmila Bai vs Janki Bai on 27 August, 2024
Author: Vishal Mishra
Bench: Vishal Mishra
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 27th OF AUGUST, 2024
MISC. PETITION No. 4161 of 2024
URMILA BAI
Versus
JANKI BAI AND OTHERS
Appearance:
Shri Hardayesh Kumar Shukla - Advocate for petitioner.
ORDER
The present petition has been filed seeking the following reliefs:
(i) That, the entire proceeding initiated by the Tehsildar
in case No.233/A-6/2024-25 be quashed as it is without
jurisdiction and also contrary to the direction of the
revenue board.
(ii) That, cost of this litigation may also be awarded.
(iii) Any other relief which this Hon’ble Court deem fit
in the facts and circumstances of the case may kindly be
granted to the petitioner. ”
It is the case of the petitioner that the respondent No.3 has filed an
application before the Tehsildar for mutation of his name in the revenuerecords in respect of land survey No.100 and survey Nos.221, 229/2, 230 and
236. The petitioner objected the said mutation on the basis that Kunwar Raj
has executed a Will in her favour. The learned Tehsildar after hearing rival
contentions of the parties has passed the order of mutation in favour of the
petitioner. The said order put to challenge by the respondent No.3 before the
Sub Divisional Magistrate, Moongawali and the learned Sub Divisional
Magistrate has set aside the order of the Tehsildar and declared that theSignature Not Verified
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petitioner has no right to acquire the land on the basis of a will. Against
which, the petitioner approached before the Additional Commissioner,
Gwalior by preferring an appeal, which was allowed setting aside the order
of Sub Divisional Magistate. Against which, an appeal was preferred before
the Board of Revenue and the Board of Revenue has set aside the order of
the Additional Commissioner. Thereafter, an application has been filed
before the Tehsildar and the Tehsildar has initiated the proceedings. It is
argued that the Tehsildar has no jurisdiction to initiate the proceedings as the
order of the Sub Divisional Officer was confirmed subject to enquiry and
hearing of legal heirs of Kunwar Raj.
It is settled legal proposition of law that mutation entries based upon
the Will is not within the domain of the revenue authorities if the Will in
question is put to challenge. It is contrary to the provisions of Section 63(c)
of the Indian Succession Act. The aforesaid aspect was considered by this
court as well as by the Hon’ble Supreme Court in large number of cases
wherein it is held that if there is a dispute with respect to the Will in question,
the revenue courts have no jurisdiction, as the jurisdiction lies with the civil
courts. The same was considered in the cases of Hriprasad Biragi Vs.
Radheshyam and others reported in (2022) 1 MPLJ 414 and Murarila and
others Vs. The State of M.P. and others reported in (2004) 2 MPLJ 139 , he
has prayed for quashment of the impugned order. This court in the case of
Ramdas and Others Vs. Janki and Others in Writ Petition No.8964 of 2024
dated 04.07.2024, considering the earlier judgments passed by the court has
allowed the writ petition. It is held as under :-
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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 ofSignature Not Verified
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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 7 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 providesSignature Not Verified
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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 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 theSignature Not Verified
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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 theSignature Not Verified
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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 indicate 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
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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
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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
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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 the 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
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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 clause; and by this last clause the propounders
of the will 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.
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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)
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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 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
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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
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[(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 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
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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.
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
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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
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(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 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,
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(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.”
From the perusal of the aforesaid judgments, it is apparently clear that
the revenue authorities have no jurisdiction to check the genuineness of the
Will. The Will has to be proved by the leading cogent evidence. Heavy
burdens lies upon the beneficiary of the Will to get the same proved by the
competent courts. Hence, no relief can be extended to the petitioner.
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NEUTRAL CITATION NO. 2024:MPHC-GWL:14431
20 MP-4161-2024
The petition sans merit and is accordingly dismissed. The petitioner
may approach the concerning civil court for redressal of her grievances.
(VISHAL MISHRA)
JUDGE
sj
Signature Not Verified
Signed by: SUSHEEL
KUMAR JHARIYA
Signing time: 8/30/2024
6:16:04 PM