2021 (2) TMI 1407 - HC - Indian Laws

Mutation of land records based on an unregistered will-revenue officials' power to decide genuineness and title struck down

Revenue authorities' jurisdiction under the MPLR Code to order mutation on the basis of an unregistered will, and to adjudicate its genuineness or ... Interpretation of Section 31 of MPLR Code - Application under Section 110 of MPLR Code before the Tahsildar for mutation of name on the basis of Will - jurisdiction to the Tahsildar to mutate the name of the person who has acquired right in the property. - Petitioner preferred an appeal which was dismissed after relying upon the unregistered ''Will'' relied upon by the respondent No.1 - revenue authorities are competent to adjudicate the correctness and genuineness of ''Will'' or not - whether the revenue authorities are competent to go to the extent of deciding the disputed question of title by adjudicating the correctness and genuineness of ''Will'' or not? Whether the words ''any proceedings'' would include a question of title also or the proceedings are confined to the proceedings under the MPLR Code only? HELD THAT:- It is well-established principle of law that the burden is on the propounder of the ''Will'' to prove that the ''Will'' was executed in his favour by the testator. Even if the ''Will'' is not challenged by anybody, but still the propounder of the ''Will'' has to discharge his burden and no decree can be passed even by the Civil Court merely on the ground that the respondents have chosen not to appear before it or have failed to file their written statement as provided under Order 8 Rule 10 CPC - Under these circumstances, even if nobody had responded to the public notice issued by the Tahsildar, it would not absolve the respondent No.1 for proving the ''Will'' in accordance with law. Since the civil suit is already pending between the parties, therefore also, even a single word on the merits of the case by this Court will prejudice the parties. Since this Court has already held that the Tahsildar has no jurisdiction to entertain an application for mutation on the basis of a ''Will'', as a natural consequence, the order dated 10/10/2002 passed by Tahsildar, Tahsil Gwalior in Case No.89/01-02/A-6, order dated 07/12/2018 passed by SDO, Lashkar, District Gwalior in Case No.68/2016-17/Appeal and order dated 10/06/2020 passed by Additional Commissioner, Gwalior Division, Gwalior in Case No.109/18-19/Appeal are hereby set aside. The Tahsildar is directed to delete the name of respondent No. 1 from the revenue record with immediate effect. The Tahsildar, Tahsil Gwalior is directed to mutate the name of the legal heirs of Late Vijay Singh Rao Mohite as per Hindu Succession Act. If the legal heirs are not available, then the Tahsildar, Tahsil Gwalior is directed to record the name of the State Government - The mutation either in the name of legal heir or in the name of State Government shall be subject to the outcome of the civil suit, which is pending between the parties. It is further directed that in case, if the names of the legal heirs of Late Vijay Singh Rao Mohite or the State Government are mutated, then neither the legal heirs nor the State Government would create any third party right in the property and status quo shall be maintained till the final adjudication by the Civil Court. Petition disposed off. 1. ISSUES PRESENTED AND CONSIDERED (i) Whether, in proceedings for mutation under Section 110 of the MPLR Code, revenue authorities have jurisdiction to adjudicate a disputed question of title by determining the correctness and genuineness of a purported 'Will'. (ii) Whether mutation orders passed on the basis of such adjudication are without jurisdiction and a nullity, and consequently liable to be set aside in supervisory jurisdiction under Article 227 of the Constitution of India, notwithstanding delay in the statutory appeal. 2. ISSUE-WISE DETAILED ANALYSIS Issue (i): Jurisdiction of revenue authorities under Section 110 MPLR Code to decide genuineness/correctness of a 'Will' Legal framework (as discussed by the Court): The Court examined Section 110 of the MPLR Code (mutation on 'acquisition of right') and Section 31 (status of Revenue Officers as Revenue Courts in 'any proceedings' under the Code). The Court also relied on the proviso to Section 178(1) MPLR Code, which mandates stay of partition proceedings when a question of title is raised to enable institution of a civil suit for title determination. Interpretation and reasoning: The Court held that 'acquisition of right' for mutation does not empower revenue authorities to undertake adjudication of title where such determination depends on proving a 'Will'. Reading Section 31 ('any proceedings') in light of the proviso to Section 178(1), the Court concluded that proceedings involving determination of title are beyond revenue jurisdiction and must be decided by the Civil Court. A 'Will', being a departure from ordinary succession and requiring proof by the propounder, necessarily implicates title adjudication. The absence of objections to public notice does not expand jurisdiction or dispense with the legal requirement that a 'Will' must be proved in accordance with law. Conclusions: The Court conclusively decided that revenue authorities lack competence and jurisdiction in Section 110 mutation proceedings to adjudicate the correctness and genuineness of a 'Will', and therefore cannot found mutation on such determination. Issue (ii): Effect of lack of jurisdiction; interference under Article 227; impact of limitation in appeal Legal framework (as discussed by the Court): The Court applied the principle governing Article 227 that the High Court must keep tribunals and subordinate authorities within the limits of their authority, and may interfere where action is beyond jurisdiction, amounting to grave dereliction or abuse of power resulting in injustice. Interpretation and reasoning: Since entertaining and deciding mutation on the basis of a 'Will' was held to be beyond the Tahsildar's jurisdiction, the foundational mutation order was without jurisdiction and hence a nullity. The Court held that a null order can be challenged even collaterally; therefore, dismissal of an appeal as time-barred could not validate or confer rights flowing from a jurisdictionally void mutation order. The Court further declined to comment on the merits of the 'Will' or its proof, since the matter of title was already sub judice before the Civil Court and any observation could prejudice adjudication there. Conclusions: The Court set aside the mutation order and the appellate/revisional orders affirming it, as being founded on jurisdictional error. The Court directed deletion of the beneficiary's name from revenue records and ordered mutation in favour of the legal heirs as per the general law of succession; if none exist, mutation in favour of the State. Such mutation was directed to remain subject to the outcome of the pending civil suit, with maintenance of status quo and prohibition on creation of third-party rights until civil adjudication.