Will Cannot Be Acted Upon Unless It Is Duly Proved And Decided By Civil Court Of Competent Jurisdiction: Madhya Pradesh HC
The Madhya Pradesh High Court observed that a will cannot be acted upon unless and until it is duly proved and decided by the civil court of competent jurisdiction.
The Jabalpur Bench of the Court observed thus in a writ petition filed by persons seeking issuance of a writ of mandamus to restrain Tehsildar to change the revenue entry based on the order of the Additional Commissioner.
A Single Bench of Justice Gurpal Singh Ahluwalia held, “Under these circumstances, this Court is of considered opinion that even otherwise, the use of word “Will” in Niyam, 2018 would not make any difference and the Will cannot be acted upon unless and until it is duly proved and decided by the civil court of competent jurisdiction.”
The Bench said that it is well established principle of law that even if a judgment is under reference, still it would hold the field unless and until it is set aside and therefore, merely because some judgment has been referred to a Larger Bench, it cannot be said that the judgment under reference has lost its efficacy.
Advocates Vipin Yadav and Raunak Yadav appeared on behalf of the petitioners while none appeared on behalf of the respondents.
Factual Background -
The counsel for the petitioners submitted that as per the M.P. Bhu-Rajaswa Sanhita (Bhu-Abhilekhon main Namantaran) Niyam, 2018, the name can be mutated in the revenue records on the basis of Will, therefore, revenue authorities are well within their rights to direct the mutation of names on the basis of Will. It was the case of petitioners that in case if somebody is aggrieved by Will, then he has to file a civil suit challenging the Will and that the submission made by counsel for petitioners cannot be accepted.
Sections 67 and 68 of the Evidence Act, 1872 prescribe the requirements and nature of proof which must be satisfied by the parties, who rely on a document in the Court of law. Unlike other documents, Will is a document which speaks from the death of testator and the testator, who has already migrated to the other world cannot appear and depose as to whether he has executed such document or not? The propounder is required to show by satisfactory evidence that Will was signed by testator, that testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of dispositions and had put his signature on the document of his own volition.
The High Court in the above regard noted, “Will has to be proved as per the provisions of Sections 67 and 68 of Evidence Act, apart from reversing all the suspicious circumstances, which are attached to it. … 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.”
The Court further said that 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.
“Furthermore, 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. … This Court has already referred the law governing the field of proving the Will. As already pointed out in the previous paragraphs a Will without any formal proof cannot be acted upon in spite of Niyam, 2018”, it added.
The Court also noted that Will means a valid Will, duly proved by the Propounder of the Will in accordance with the law laid down by the Supreme Court and that the manner in which the Naib Tahsildar has dealt with the matter giving a complete go bye to the basic law pertaining to proof of Will coupled with the fact that he even did not care to issue notice to the other legal representatives of the Testator, clearly indicates that even otherwise the Naib Tahsildar had no basic knowledge about the law.
Accordingly, the High Court dismissed the petition and set aside the order of the Tahsildar.
Cause Title- Vijay Singh Yadav & Ors. v. Krishna Yadav & Ors.
