Kedarnath Sharma And vs Reetesh And Ors

G.S. Ahluwalia, J

This miscellaneous petition under Article 227 of the Constitution of India has been filed against the order dated 19/11/2020 passed by Commissioner,

Chambal Division, Morena in Case No.0062/2020-21/Appeal, thereby affirming the order dated 08/07/2020 passed by SDO, who in its turn, also

affirmed the order of Tahsildar, dated 08/05/2019.

The necessary facts for disposal of the present petition in short are that the petitioners claim that they are the real brother of deceased Ramdeen, who

expired on 27/12/2018. He was the owner of land bearing survey no.129, area 0.95 hectare, survey no.54, area 0.55 hectare and survey no.122 area

1.19 hectare. After his death, the respondents filed an application under Section 110 of MPLR Code for mutation of their names on the ground that

they are the legal heirs of the deceased Ramdeen. The Tahsildar by order dated 08/05/2019 allowed the application filed by the respondents. The

petitioners preferred an appeal which was dismissed by SDO and the second appeal preferred before Commissioner, Chambal Division, Morena has

also been dismissed.

It is submitted by the counsel for the petitioners that the petitioners are real brothers of deceased Ramdeen. The respondent no.3 is the second wife of

late Ramdeen whereas the first wife of late Ramdeen is still alive and the marital ties with his first wife was not separated. It is submitted that since

the respondent no.3 is not the legal wife of late Ramdeen, therefore, the authorities should not have mutated the name of the respondent No.3 in the

revenue records in place of Late Ramdeen. It is further submitted that late Ramdeen has executed a ''Will'' in favour of petitioners, therefore, the

authorities should have mutated the names of the petitioners.

Heard the learned counsel for the petitioners.

Even if the argument of the counsel for the petitioners that the respondent no.3 is not the legally wedded wife of late Ramdeen is accepted but still the

respondents No.1,2 and 4 who are the children of late Ramdeen from the respondent no.3, would be entitled for their share. Accordingly, if the

authorities have mutated the names of the respondents, then this Court is of the considered opinion that no illegality has been committed by the

authority by mutating the names of the respondents on the ground that they are the legal heirs of late Ramdeen.

It is next contended by the counsel for the petitioners that the first wife of late Ramdeen is still alive and, therefore, her names should also have been

mutated in the revenue records.

Considered the submissions made by the counsel for the petitioners.

The first wife of late Ramdeen has not approached this Court expressing her grievance. Therefore, the submission made by the counsel for the

petitioners with regard to the legitimacy of marriage between late Ramdeen and the respondent no.3 as well as the right of the first wife of late

Ramdeen cannot be adjudicated.

It is next contended by the counsel for the petitioners that late Ramdeen had executed a ''Will'' in their favour and the authorities have committed

material illegality by rejecting their claim.

Considered the submission made by the counsel for the petitioners.

This Court in the case of Dharamveer Singh and Others vs. Rushtum Singh and Others, by order dated 27/08/2019 passed in MP No.3281 of 2019 has

held that the revenue authorities have no jurisdiction to adjudicate the genuineness and correctness of ''Will''. If the beneficiary wants to stake his

claim on the basis of ''Will'', then he has to establish his title by filing a properly constituted civil suit before the competent Court of Civil jurisdiction.

This Court in the case of Dharamveer Singh and Others (supra) has held as under:-

''The Punjab and Haryana High Court in the case of Rajinder Singh And Another Vs. Financial Commissioner as decided on 21st March, 2013 in Civil

Writ Petition No.3821/2011 has held that validity of ''Will'' can be decided by the Civil Court which has exclusive domain over such matter and this

cannot be decided by the Revenue Courts.

Heard the Learned Counsel for the parties.

A similar view has been taken by a Coordinate Bench of this Court by order dated 06/04/2017 passed in Writ Petition No.1820 of 2011 (Akshay

Kumar vs. Smt. Ramrati Pandey and Ors.). Thus, it is held that the Revenue Courts have no jurisdiction to decide the rights of any party on the basis

of ''Will'' and if somebody wants to claim his/her title over any property, then he/she has to seek declaration from the Civil Court of competent

jurisdiction. Accordingly, this Court is of the considered opinion that the Additional Commissioner, Gwalior Division, Gwalior has committed material

illegality by restoring back the order passed by Tahsildar, by which the names of the respondents were mutated on the basis of ''Will'' executed by one

Sughar Singh.''

Accordingly, order dated 25/04/2019 passed by Additional Commissioner, Gwalior Division, Gwalior in Case No.176/2017 -18/ Appeal is hereby set

aside, and the order passed by SDO, Gwalior City, District Gwalior in Case No.23/2016-17/Appeal is hereby restored.

The application filed by the respondents under Section 109 and 110 of MP Land Revenue Code is hereby rejected. The respondents are granted

liberty that if they so desire, then they can seek declaration from the Civil Court of Competent jurisdiction.

With aforesaid observations, this petition is allowed. ''

A similar view has been taken by this Court in the case of Kalyan Singh vs. Gangotri Bai and Another, by order dated 21/08/2019 passed in MP

No.3460 of 2019.

Thus, it is well-established principle of law that the revenue authorities have no jurisdiction to decide the genuineness of the ''Will'' and it is only for the

Civil Court to decide that whether the ''Will'' was executed or not ?

Accordingly, this petition filed by the petitioners is dismissed with liberty that if so advised, then they can file a properly constituted civil suit for

establishing their title on the basis of ''Will''.

With the aforesaid liberty, the order dated 19/11/2020 passed by Commissioner, Chambal Division, Morena in Case No. 62/2020- 21 is hereby

affirmed.

Petition fails and is hereby dismissed.