TaxTMI 
TaxTMI 
TaxTMI 
2021 (2) TMI 1407
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....ed by Vijay Singh Rao Mohite, son of Late Shankar Rao Mohite, who was also known as ''Vijay Singh Rao Ghorpade'' in respect of Survey Nos.18, 19, 22, 23, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157, 158, 162, 163, 164, 165, 166, 167, 168, 169, 173, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 185, 186, 187, 188 and 189, total area 49 bigha 6 biswa situated in Village Ghatampur, Tahsil and District Gwalior. (3) It is the case of the respondent No.1 that she was brought up by the testator when she was 10 years old and her marriage was also performed by the testator and out of love and affection, the testator had executed an unregistered ''Will'' on 04/04/2002. Although the order sheets of the Tahsildar, Tahsil Gwalior have not been placed on record, but it appears from the order dated 10/10/2002 passed by Tahsildar, Tahsil Gwalior (Annexure P3) that a public notice was issued but no objection was received from anybody. Accordingly, the respondent no.1 examined Aditya Patankar and Govinddas Bansal who a....
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....oved by the respondent no.1 and, therefore, the Tahsildar should not have mutated the name of the respondent no.1 on the basis of ''Will''. It is further submitted that the respondent No.1 is not related to the testator in any manner. In the application which was filed under Section 110 of MPLR Code, it was nowhere mentioned as to how the respondent no.1 is the legal heir of the testator. It is merely mentioned that the testator had died issue-less and since the respondent no.1 had looked after the testator and it was a testator, who had arranged for marriage of the respondent no.1, therefore, the respondent no.1 is the legal heir. It is submitted that in the application which was filed under Section 110 of MPLR Code, it is nowhere mentioned that the respondent no.1 was adopted by the testator and in absence of any adoption deed, the respondent no.1 cannot be treated as legal heir of the testator and, therefore, even otherwise, the name of the respondent no.1 was not liable to be mutated in the revenue record. (7) Per contra, justifying the order of mutation passed by the authorities below, it is submitted by the Counsel for the petitioner that the respondent no.....
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....use of power by the subordinate courts and tribunals resulting in grave injustice to any party.'' (11) One of the contentions of the Counsel for the petitioner is that the revenue authorities do not have any jurisdiction to entertain the application under Section 110 of MPLR Code on the basis of ''Will''. If this argument is answered in affirmative, then it would be clear that the authorities had acted beyond their jurisdiction and thus, this Court will have a jurisdiction to set aside the orders passed by the authorities while exercising its power under Article 227 of Constitution of India. (12) It is the submission of the Counsel for the respondent No.1 that Section 110 of MPLRC Code gives the jurisdiction to the Tahsildar to mutate the name of the person who has acquired right in the property. (13) Section 110 of MPLRC Code reads as under:- ''110. Mutation of acquisition of right in land records. - (1) The Patwari or Nagar Sarvekshak or person authorised under section 109 shall enter into a register prescribed for the purpose every acquisition of right reported to him under section 109 or which comes to his notice from a....
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....crucial aspect which has to be kept in mind while deciding the application under Section 110 of MPLR Code. (15) The moot question for consideration is that 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 ? (16) It is submitted by the Counsel for the respondent No.1 that the right can also be acquired by virtue of a ''Will''. Therefore, once the Tahsildar has a jurisdiction to decide the application under Section 110 of MPLRC Code on the basis of acquisition of right of the parties, then the Tahsildar has a jurisdiction to decide the correctness and genuineness of ''Will'' also. (17) Per contra, it is submitted by the Counsel for the State that it is well-established principle of law that the burden to prove the ''Will'' is on the propounder and he has to remove all suspicious circumstances which are attached to a ''Will'' and since the ''Will'' is a departure from the general law of succession, therefore, it necessarily involves the question of title, w....
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....l vacate the stay order and proceed to partition the holding in accordance with the entries in the record of rights.] (2) The Tahsildar, may, after hearing the co-tenure holders, divide the holding and apportion the assessment of the holding in accordance with the rules made under this Code. [(3) x x x] [(4) x x x] [(5) x x x] Explanation I.-For purposes of this section any co-sharer of the holding of a Bhumiswami who has obtained a declaration of his title in such holding from a competent civil court shall be deemed to be a co-tenure holder of such holding. Explanation II.-[x x x]" (23) Proviso to Section 178(1) of MPLR Code specifically provides that in a partition proceedings, if any question of title is raised by any of the parties, then the revenue authorities shall stay the proceedings for a period of three months in order to facilitate the parties for institution of a civil suit for determination of question of title. Proviso to Section 178(1) of MPLR Code makes it clear as noon day that question of determination of title is beyond jurisdiction of the revenue authorities, otherwise the Tahsildar was not required to sta....
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....onsidered the merits of the case, which was not expected because unless and until, the delay is condoned, it cannot be said that there was any appeal in the eyes of law before the SDO, Lashkar District Gwalior. However, since this Court has already held that the Tahsildar, Tahsil Gwalior had no jurisdiction to entertain an application under Section 110 of MPLR Code on the basis of ''Will'' therefore, the order passed by the Tahsildar was without jurisdiction and it was a nullity. Any order which is a nullity can always be challenged even in the collateral proceedings. Thus, even if the petitioner had filed time-barred appeal, still it would not confer any right on the respondent No.1 on the basis of an order which was without jurisdiction. (30) At this stage, it is submitted by the counsel for the parties that the petitioner has already instituted a civil suit, in which the respondent No.1 has already entered her appearance. However, it is submitted by the counsel for the petitioner that since the respondent No. 1 has failed to prove the ''Will'' before the Tahsildar, therefore, the order of mutation should be quashed. (31) So far as the adjudi....