Motilal Patidar And Another. vs Narayan Patidar

The petitioners have filed the present petition being aggrieved by order dated 18.2.2019 whereby the Additional Commissioner, Indore has set aside the order dated 26.7.2017 passed by Tehsildar, Manawar and order dated 27.11.2017 passed by Sub Divisional Officer (SDO), Manwar and remanded the case back to the Tehsildar to decide the matter afresh after giving opportunity of hearing to the parties.

The petitioners and respondent are real brothers. The property in dispute was initially in the name of Mrs. Godawaribai, the mother of petitioners and respondent. She died on 17.11.2018. According to the petitioners, Godawaribai executed the registered Will in their favour on 12.5.2009 and on the basis of said Will, they applied for mutation before the Tehsildar. In the said mutation proceedings, the respondent raised an objection on the basis of Will dated 11.7.2015 executed in his favour. Since both the parties have produced the Will before the Tehsildar, therefore, the Tehsildar has restrained himself from deciding the validity of the Will and directed for mutation of name of the petitioners and respondent jointly being the legal heirs of Mrs. Godawaribai.

Being aggrieved by the aforesaid order, the respondent preferred an appeal before the SDO as well as civil suit before the Civil Judge, Class-II, Manawar. Learned SDO vide order dated 27.11.2017 dismissed the appeal and maintained the order passed by the Tehsildar. Thereafter, the respondent preferred an appeal before the Additional Commissioner and vide order dated 18.2.2019 has allowed the appeal and remanded the case before the Tehsildar, hence the present petition before this Court.

I have heard Shri Nitin Phadke, learned counsel appearing for the petitioners and Shri Vinay Zelawat, learned senior counsel appearing for the respondent and perused the material available on the record.

In the civil suit, the respondent has also filed an application under Order 39 Rule 1 & 2 of C.P.C., in which, order of temporary injunction has been granted. The matter came up before this Court in M.P. No.6113/2018 and vide order dated 2.4.2019, the co-ordinate Bench of this Court has directed the parties to maintain status quo as existed on 2.4.2019 i.e. the date of the order, with regard to the suit property and move a joint application for early disposal of the suit. Relevant part of the aforesaid order is reproduced below :

"Admittedly, the suit property is an agricultural land and mutated in the name of plaintiff and defendants No.1 & 2. At this stage, the finding as regards the entitlement of right title and interest upon the suit land in favour of the either party shall have binding effect in the pending trial. Hence in the fitness of things, it is considered apposite to order that both the parties shall maintain status quo with regards suit property as it exists today and move joint application for early disposal of suit. If such an application is filed, the trial Court shall bestow its conscious consideration and endeavour to conclude the trial as early as possible."

It is settled law that the order of Civil Court is binding on the revenue authorities. Civil suit has been filed, in which, both the parties are claiming their right by virtue of Will in their favour. It is also settled law that the revenue authorities cannot decide the validity of the Will, therefore, there was no necessity to remand the matter back to the Tehsildar for deciding the validity of the Will when the civil suit has been filed. The co-ordinate Bench of this Court in M.P. No.1237/2019 (Munshilal V/s. State of M.P. & others) decided on 20.8.2019, has held that the revenue authorities have no right to check the genuineness of the Will and the same will be examined by the Civil Court u/s. 63-C of the Indian Succession Act. Para 7 and 8 of the aforesaid judgment are reproduced below :

"7. The Hon'ble High Court of Madhya Pradesh in W.P. No.1820/2011(Akshay Kumar Vs. Smt. Ramrati Pandey & Ors.) decided on 6.4.2017 considering the judgment of Hon'ble Punjab and Haryana High Court in the case of Rajinder Singh And Another Vs. Financial Commissioner passed in W.P. No.3821/2011 decided on 21st March, 2013, whereby the Coordinate Bench of this Court has finally decided the writ petition and held as under;

"Learned counsel for the petitioner submits that validity of will can be determined in the Civil Court of competent jurisdiction and Revenue Courts have no authority of determination of the validity of the will so also the authority of the testator to execute a will.

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.

This proposition has not been disputed by the learned counsel for the respondents and therefore, in view of the settled position of law that validity of the will can be tested only before the Court of competent civil jurisdiction and not before the Revenue Court, the impugned order is set aside. Parties are relegated to the Civil Court. They are free to get the claim decided on the basis of which Revenue Court will carry out the proceedings of mutation as and when occasion arises."

This court in W.P. No.6617/2015 (Smt. Laxmi Devi & Ors. Vs. Deendayal died through Lrs. & Ors.) decided on 02/07/2019 has held that the Revenue Authorities have no right to check the genuineness of the Will.

From the aforesaid, it is clear that the genuineness of Will cannot be examined by the Revenue Courts/Revenue Authorities, it is for the petitioner to approach the Civil Court under Section 63-C of the Indian Succession Act and should have got the Will declared as a genuine Will by leading proper evidence before the trial Court. Therefore, no illegality is being committed by the Tahsildar and the Commissioner while passing the impugned order. Even otherwise, petitioner has only challenged the order passed by the Commissioner. No challenge is being made to the order dated 28/2/2015 (Annexure P/1) passed by Tahsildar, Tahsil Shadora, District Ashok Nagar."

In view of the above, this petition deserves to be and is hereby allowed and the order dated 18.2.2019 passed by the Additional Commissioner, Indore is hereby set aside.

No order as to costs.