Revenue authorities can’t initiate the process of property mutation till the genuineness of a Will is proven in a civil court, the Madhya Pradesh High Court (HC) has ruled. While disposing of a dispute related to the Madhya Pradesh Land Revenue Code (Transfer of Name in Land Records) Rules, 2018, a single Judge Bench of Justice GS Ahluwalia said that a Will cannot be acted upon unless and until it is duly proved and decided by the civil court of competent jurisdiction.
“Unless and until a Will is duly proved, it cannot be acted upon and the revenue authorities have no jurisdiction to decide the authenticity, correctness, genuineness of a Will which can only be done by a civil court,” said the HC in its order dated February 23, 2024.
“It appears that an application was filed by the petitioners for mutation of their names on the basis of Will by impleading only State of Madhya Pradesh. From the report of the Naib Tahsildar, it is clear that the other legal representative of the testator were neither made a party nor they were noticed. Thus, the malafide intention of petitioner of getting his name mutated in a clandestine manner is writ large. Thus, the persons, who were vitally interested in the matter, were not given any opportunity to object to the so called Will, relied upon by the petitioners,” the HC said.
“From the order, which has been passed by the Naib Tahsildar, it is clear that except mentioning that the witnesses have stated that the testator had signed the Will in his full senses, nothing else has been considered to judge the correctness of the Will,” it added.
The Supreme Court in in the case of Gorantla Thataiah versus Thotakura Venkata Subbaiah and others has held as it is for those who propound the Will to prove the same, the high court said. Citing the SC order, the court said that that the intention of testator to make testament must be proved, and propounder of Will must examine one or more attesting witnesses and remove all suspicious circumstances with regard to execution of Will.
The HC also referred to its previous order in which it clearly distinguished the nature of proof required for a Will as opposed to any other document.
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,” the HC said in H Venkatachala Iyengar versus BN Thimmajamma case.
Under Section 67 of the Evidence Act, if a document is said to be signed by any person, the signature of the said person must be proved to be in his handwriting. For proving such a handwriting under 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 Succession Act are also relevant.
Section 59 provides 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?
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