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Judgment
The petitioners have filed this petition being aggrieved by the order dated 23.06.2026 passed by Additional Commissioner Gwalior Division, Gwalior in Case Number 1034/Appeal/2020-21, whereby the orders passed by Sub-Divisional Officer, Karera, District Shivpuri and Tehsildar, District- Shivpuri have been set aside.
The facts of the case are that the agricultural lands bearing Survey Nos. 1203/2, 1210 to 1218, 1220, 1359 and Survey No.1204 admeasuring 0.13 hectare, situated at Village Sikandar, Tehsil Narwar, District Shivpuri (M.P.), belonged to the common ancestor (Lt. Shri Bal Kishan) of the petitioners as well as respondent No.4.
After the demise of said common ancestor, the petitioners submitted an application in terms of Section 110 of the Madhya Pradesh Land Revenue Code, 1959 before the competent revenue authority seeking mutation of their names in the revenue record. This application was filed based on an unregistered Will dated 28.01.2011 purportedly executed by Late Shri Bal Kishan.
The concerned revenue authority issued notice to the respondent No.4 on the said application of petitioners, pursuant to which the respondent No. 4 submitted his objections and raised a rival claim by asserting that there is a subsequent Will executed by Late Shri Bal Kishan on 09.11.2013 in favor of respondent No. 4. As such, by way of the aforesaid subsequent Will, the respondent No. 4 claimed sole entitlement on the property in question.
The Tehsildar, after considering the rival submissions, passed an order on 11.02.2020 (Annexure P-3), whereby the application preferred by petitioners was allowed and by accepting the unregistered Will dated 28.01.2011, mutation was directed.
Respondent No. 4, being aggrieved by the order dated 11.02.2020, preferred an appeal before the Sub-Divisional Officer, Narwar. The said appeal was dismissed by the SDO vide order dated 08.02.2021. As such, the Tehsildar as well as SDO affirmed the Will dated 28.01.2011 at the expense of rival Will dated 09.11.2013.
The petitioners, being aggrieved, preferred second appeal before the Additional Commissioner, Gwalior, who by the impugned order passed on 23.06.2026 has held that as the Will dated 09.11.2013 submitted by the respondent No. 4 is subsequent in point of time, thus the same is binding upon the revenue authorities and the same has to be relied upon. As such, the Additional Commissioner Gwalior Division set aside the orders passed by Tehsildar and the SDO and directed for mutation of the revenue records based on Will dated 09.11.2013.
Being aggrieved by the order passed by the Additional Commissioner Gwalior Division the present petition has been filed. The learned counsel for the petitioners have come with a case that the Will relied upon by the petitioners before the revenue authority dated 28.01.2011 was duly considered by the Tehsildar and the order of the Tehsildar was affirmed by the Sub-Divisional Officer. There is no discrepancy in the Will at all. Thus, the impugned order passed by the second appellate authority is not sustainable.
Learned counsel for the petitioners further submitted that even if the second appellate authority was of the view that there are two Wills and correctness of the same has to be decided, then the proper remedy was to relegate both the parties to the civil court. The Commissioner himself could not have decided the correctness of one of the two rival Wills submitted by contesting parties before the revenue authorities. Thus, he submits that on both counts, that is, on merits and even on the ground of competence of the authority, the order impugned is not sustainable.
Per contra, the learned senior counsel appearing for the respondent No.4 submits that in fact, the Additional Commissioner has correctly passed the impugned order considering the fact that both the Wills, i.e., the earlier Will dated 28.01.2011 and the subsequent Will dated 09.11.2013 are unregistered, and as the subsequent Will shall impliedly overrule the earlier Will, thus the appellate authority has correctly passed the impugned order.
Learned senior counsel also submits that in any case, the respondent No.4 had submitted objections before the Tehsildar itself, whereby it was asserted that there is a subsequent Will of 09.11.2013, this fact has duly been recorded by the Tehsildar in the impugned order dated 11.02.2020. Once this fact had come on record that there are two rival Wills, then the correct procedure for the Tehsildar was to reject the application for mutation and both the parties should have been relegated for proving their case before the competent civil court having jurisdiction.
Heard learned counsel for the parties and perused the material available on record.
In fact, a minute scrutiny of the arguments advanced by the counsels from both the sides would show that both of them are of the view that the revenue authorities were not competent to decide the correctness of rival Wills. However, the learned counsel for the petitioners support the orders passed by the Tehsildar and the SDO on 11.02.2020 and 08.02.2021, and the learned counsel for respondent No.4 supports the order dated 23.06.2026.
However, the issue regarding the competence of civil court to decide the dispute regarding existence of two rival Wills is no more res integra. A Full Bench of this Court in the case of Anand Choudhary vs. State of MP and others, 2025 SCC OnLine MP 977 has held in para 73 and 74 as under:-
"73.Now an ancillary question arises for consideration that once a dispute has arisen in the matter of competence of the deceased to execute the will or in the matter of validity or authenticity of the will, then which of the party would be required to approach the Civil Court. As we have already held above that in such cases the Tehsildar would not have the jurisdiction to carry out mutation, and burden is on propounder of document, then obviously the propounder of the will would be required to approach the civil court and get the will proved either by resorting to the proceeding of probate or letter of administration or a civil suit for declaration. However, in cases of registered non-testamentary title documents, in case of dispute, the person raising dispute will be required to approach the Civil Court. If such suit/proceedings before Civil Court/District Court are not instituted within five months or despite institution, no injunction is granted despite occurrence of dispute, then the Revenue authorities may decide those disputed cases by ignoring disputed testamentary documents i.e. will and in case of non testamentary documents by giving effect to non-testamentary registered title documents. In case of injunction from Civil Court, the proceedings will have to be kept pending and reported to Collector in terms of Section 110 (7) MPLRC. In cases where issue of Government having interest in the land crops up in course of mutation, then the Tehsildar may decide that question in terms of section 111 read with Section 257 (a) MPLRC by exercising wider jurisdiction and may take evidence, but in those cases also, no enquiry into validity of will or other registered title document can take place before the Tehsildar in Revenue proceedings in view of section 295 of Indian Succession Act and incompetence of the Tehsildar to decide questions of title by enquiring into registered title documents.
74.In view of the aforesaid discussion, we answer the question referred to us in the negative and hold that Tehsildar cannot reject the application for mutation at threshold on the ground that it is based upon will. However, in view of detailed discussion made by us above, it would be appropriate to summarize our conclusions serially as under:-
1)The Tehsildar while dealing with cases of mutation under sections 109 and 110 MPLRC between private parties, does not perform judicial or quasi-judicial functions, but only performs administrative functions and therefore, he is not authorized to take any evidence for the purpose of deciding applications for mutation.
2)The Tehsildar can entertain application for mutation on the basis of will. However, it would be obligatory upon him to enquire about the legal heirs of the deceased and notice them in view of provisions of section 110(4) MPLRC.
3)Sections 109 and 110 have to be read alongwith Section 111 M.P.L.R.C. and a bare reading of Section 111 of M.P.L.R.C. leads to conclusion that where-ever rights of private parties are involved, then it will only be for the Civil Court to adjudicate the disputed cases. The jurisdiction of the Revenue Officers in the matters of mutation in Revenue records, is merely administrative.
4)A dispute as to validity of will, competence of testator to execute will or existence of two rival wills of testator, or a dispute as to validity of any other non-testamentary registered title document as enumerated in Form-1 of Mutation Rules of 2018 would create a dispute relating to any right which is recorded in the record of rights and arising during either mutation or correction of entry would be such a dispute.
5)In case any dispute as mentioned in para (4) above is raised between private parties, then the Tehsildar would not have any competence to decide the dispute and it would be for the parties to approach the civil court to get the dispute adjudicated, in terms of detailed discussion contained in para-74 above. Such matters will either be disposed or kept pending and reported to the Collector in terms of Section 110(7) MPLRC by the Tehsildar, in the manner discussed in detail in this order.
6)The decision in disputed cases as contemplated under Section 110 (4) M.P.L.R.C. does not give any authority to the Tehsildar to decide such dispute and assume powers of Civil Court by going into the authenticity of will or of any non-testamentary registered title document and that outer time limit has to be read only to determine whether a dispute exists in the matter and granting opportunity to parties to approach the Civil Court. If such approach to Civil Court is not made or despite approach no injunction is granted by Civil Court, then mutation will be carried out on basis of succession by ignoring disputed testamentary document and in case of non-testamentary registered title documents, by giving effect to such document. Once a dispute in the matter of competence of testator, validity of the will (whether registered or not) or into a non-testamentary registered title document or dispute as to title is raised before Civil Court and injunction is granted, then the only course open for the Tehsildar would be not to proceed further and to report the matter to the Collector under Section 110(7) of MPLRC.
7)In case no dispute is raised by any legal heirs of the testator or by any other person in the matter of competence of testator to execute the will and authenticity of the will, then it would be open for the Tehsilder to carry out the mutation in such undisputed cases. However, even in those cases subsequent Civil Suit will not be barred.
8)In case where issue of Government having interest in the land crops up in course of mutation, then the Tehsildar may decide that question in terms of section 111 read with Section 257 (a) MPLRC by exercising jurisdiction which is wider than administrative one and may take evidence, but in those cases also, no enquiry as to validity of will or of any registered title document can take place before the Tehsildar."
It is thus clear that a dispute as to validity of a Will cannot be decided by revenue authorities. It is also clear that existence of two rival Wills is clearly a dispute as laid down by the Full Bench of this Court in the case of Anand Choudhary (supra). Thus, it is clear that in view of the existence of two rival Wills before the Tehsildar, the correct course for the Tehsildar would have been to reject the application and the parties should have been required to approach the civil court to get the Will proved either by resorting to the proceedings of probate or letter of administration or by instituting a civil suit for declaration.
In the instant case, the Tehsildar, instead of doing so, decided the application, based on one of the two rival Wills, this decision of the Tehsildar dated 11.02.2020 (Annexure P/3) is clearly against the law as laid down by the Full Bench in para 73 and 74 above. It has clearly been held by the Full Bench that the Tehsildar would have no jurisdiction to carry out mutation based on a Will which has been disputed.
Now the question before this court is that if the Tehsildar was not having jurisdiction to carry out the mutation, then what will be the course to be adopted by the said authority. This question has also been answered by the Full Bench in initial part of para 73 of its judgment. Thus, the Tehsildar was required to relegate the parties before the civil court.
Now the question remains that as the order of mutation has already been passed, what is the course that has to be adopted by the revenue authorities in the present case.
It is settled position of law that a Will is an instrument which creates circumstances where natural heirs are deprived from their natural right of succession. As such, the burden lies very heavy on the person claiming his right based on a Will and claiming interference in the natural course of succession. Thus, if either of the parties fail to assert their right by establishing the correctness/genuineness of the Will before a competent civil court having jurisdiction, then what will follow is the natural course of succession.
Thus, all the orders, that is, order dated 23.06.2026 (Annexure P/1) passed by the second appellate authority, order dated 08.02.2021 (Annexure P/2) passed by Sub-Divisional Officer, and order dated 11.02.2020 (Annexure P/3) passed by the Tehsildar, Narwar are hereby quashed.
The revenue authorities are directed to restore original position of revenue entries which was there before the order dated 11.02.2020 (Annexure P/3).
The petitioners as well as respondent No.4 are set at liberty to approach the competent civil court for asserting their claims based on Will. However, in case the parties fail to establish their rights by proving Will before the civil court in reasonable time, then the authorities will be free to adopt natural course of succession for mutation of revenue entries, as the revenue entries cannot be left to be continued in the name of a deceased person for an indefinite period.
With the aforesaid, the petition stands disposed of.