Remanded

Srimati Rout v. Addl.Commissioner, Consolidation

Orissa HC9 Dec 2020WP(C)/13557/2020

Case brief

AI extract

What is this about?

The High Court dismissed a petition against an order recording land in favor of an opposite party based on a registered Will. The Court held that the revisional authority erred by accepting the Will without adhering to the strict evidentiary standards of Section 68 of the Evidence Act regarding execution and attestation. The order and Related Record of Rights were set aside.

What did the court decide?

The impugned order and Related Record of Rights were set aside, and the matter remitted to the revisional authority for fresh adjudication after recording evidence.

Srimati Rout Vs Addl.Commissioner, Consolidation — Property and Title | Orissa HC (2020)

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W.P.(C) NO. 13557 OF 2020

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04 09.12.2020 Due to outbreak of COVID-19, this matter is taken up through Video Conferencing.

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Heard Mr. Udgata, learned counsel for the petitioners and Mr. Amitabh Pradhan, learned counsel for the opp. party no. 4 and Mr. Swayambhu Mishra, learned Addl. Standing Counsel for the State-opp. parties 1 to 3.

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The petitioners in this writ petition seek to assail the order dated 03.09.2018 (Annexure-6) passed by the Addl. Commissioner, Consolidation & Settlement, Sambalpur in Consolidation Revision No. 589 of 2013, whereby he allowed the revision filed by opp. party no. 4 under Section 37(1) of the O.C.H. & P.F.L. Act, 1972 (for short ‘Consolidation Act) and directed to record the land pertaining to Hal Plot No. 184 to an extent of Ac.0.210 decimals and Hal Plot No. 282 to an extent of Ac.0.090 decimals corresponding to Hal Chaka Khata No. 161 in mouza Naxapali in the district of Sambalpur (for short ‘the case land’) in favour of opposite party no. 4. 4. Mr. Udgata, learned counsel for the petitioners submits that the case land was purchased jointly by Nishamani Behera and his second wife, namely, Gaisana Behera and the same was recorded in their name under Hal Chaka Khata No. 161 under Section 13(1) of the Consolidation Act. Since the village was published under Section 5(1) of the Consolidation Act, R.O.R. in respect of the case land was published in their

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name under Section 13(4) of the Consolidation Act under Annexure-1. Nishamani Behera died in the year, 1993 and Gaisana Behera died in the year, 2008. As there was a de-notification of the village under Section 5(1) of the Consolidation Act, R.O.R. under Annexure-1 is deemed to have been published under Section 12-B of the Orissa Survey and Settlement Act, 1958 (for short ‘Settlement Act’). After their death, the legal heirs, namely, the petitioners and opp. parties 5 & 6 as well as the predecessor of opp. parties 7 to 10 filed Mutation Case No. 559 of 2009 before the Tahasildar, Maneswar for recording the case land in their name. Pursuant to the order dated 27.05.2011 passed by the Tahasildar, Maneswar under Annexure-2, the case land was recorded in the name of the petitioners and opp. parties 5 & 6 as well as the predecessor of opp. parties 7 to 10 under Annexure-3. The opp. party no. 4 claiming to have received the case land by virtue of a Registered Will bearing No. 18 dated 23.03.1992 executed by said Nishamani Behera claimed the case land to be recorded in his name and filed Mutation Case No. 284 of 2012 for recording the case land in his favour. The said mutation case was dropped vide order dated 14.01.2013 holding that since the case land was recorded in the name of Nishamani Behera and Gaisana Behera in a consolidation operation, the mutation case would not be maintainable. Thereafter, the opp. party no. 4 without preferring any appeal against the said order filed a

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revision under Section 37(1) of the Consolidation Act. The Addl. Commissioner, Consolidation & Settlement treating the said revision to have been filed under Section 15(b) of the Settlement Act entertained the same and passed the impugned order under Annexure-6. 5. Mr. Udgata, learned counsel for the petitioners raises various questions with regard to service of notice on the petitioners as well as opp. parties 5 to 10, interpolation in the date of the order and several infirmities in the impugned order under Annexure-6. He, however, mainly assails the impugned order on the ground that the Addl. Commissioner, Consolidation & Settlement could not have accepted the plea of the opp. party no.4 on the basis of a registered Will stated to have been executed by Nishamani in the year, 1992 submitting that at no cost the standard of proof of the registered Will provided under Section 68 of the Evidence Act, 1872 can be dispensed with, while adjudicating the issue of entitlement of the beneficiary on the basis of said Will. In support of his contention, he relied upon the case law in the case of Jagdish Chand Sharma –v- Narain Singh Saini (Dead) through LRs and others , reported in AIR 2015 (SC) 2149, wherein it has been held as follows:

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“15.2. These statutory provisions, thus, make it incumbent for a document required by law to be attested to have its execution proved by at least one of the attesting witnesses, if alive, and is subject to the process of Court conducting the

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proceedings involved and is capable of giving evidence. This rigour is, however, eased in case of a document also required to be attested but not a Will, if the same has been registered in accordance with the provisions of the Indian Registration Act, 1908 unless the execution of this document by the person said to have executed it denies the same. In any view of the matter, however, the relaxation extended by the proviso is of no avail qua a Will. The proof of a Will to be admissible in evidence with probative potential, being a document required by law to be attested by two witnesses, would necessarily need proof of its execution through at least one of the attesting witnesses, if alive, and subject to the process of the Court concerned and is capable of giving evidence.

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xxx xxx xxx xxx

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39. In Pentakota Satyanarayan and others (AIR 2005 SC 4362) (supra) the testator P. Mr. Ram Murthi had admitted the execution of the Will involved. He, however, expired while the suit was pending. The Will was registered and the signature of the testator was identified by two witnesses whereupon the Sub-Registrar had signed the document. In this textual premise, it was held that the signatures of the registering officer and of the identifying witnesses affixed to the registration endorsement did amount to sufficient attestation within the meaning of the Act. It was held as well that the endorsement of the Sub-Registrar that the executant had acknowledged before him the execution, did also amount to attestation. The facts revealed that the Will was executed before the Sub-Registrar on which the signature of the testator as well as signature and the thumb impression of the identifying witnesses were taken by the said authority, whereafter the latter signed the deed. In general terms, it was observed that registration of the Will per se did not dispense with the need of proving its execution and the attestation in the manner as provided in Section 68 of the 1872 Act. It was enunciated as well that execution

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consisted of signing a document, reading it over and understanding and completion of all formalities necessary for the validity of the act involved.

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xxx xxx xxx xxx

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45. A Will as an instrument of testamentary disposition of property being a legally acknowledged mode of bequeathing a testator's acquisitions during his lifetime, to be acted upon only on his/her demise, it is no longer res integra, that it carries with it an overwhelming element of sanctity. As understandably, the testator/ testatrix, as the case may be, at the time of testing the document for its validity, would not be available, stringent requisites for the proof thereof have been statutorily enjoined to rule out the possibility of any manipulation. This is more so, as many a times, the manner of dispensation is in stark departure from the prescribed canons of devolution of property to the heirs and legal representatives of the deceased. The rigour of Section 63 (c) of the Act and Section 68 of 1872 Act is thus befitting the underlying exigency to secure against any self serving intervention contrary to the last wishes of the executor.”

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He also relied upon the decision in the case of Ramesh Verma (D) Thr. LRs. –v- Lajesh Saxena (D) by LRs and another , reported in AIR 2017 SC 494, wherein it has been held at paragraphs-14 and 15 as follows:

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“14. In Savithri v. Karthyayani Amma reported as (2007) 11 SCC 621 at page 629 : (AIR 2008 SC 300 at P. 303), this Court has held as under:-

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"A Will like any other document is to be proved in terms of the provisions of the Succession Act and the Evidence Act. The onus of proving the Will is on the propounder. The testamentary capacity of the testator must also be established. Execution of the Will by the testator has to be proved. At least one attesting witness is required to be examined for the purpose of proving the execution of the Will. It is

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required to be shown that the Will has been signed by the testator with his free will and that at the relevant time he was in sound disposing state of mind and understood the nature and effect of the disposition. It is also required to be established that he has signed the Will in the presence of two witnesses who attested his signature in his presence or in the presence of each other. Only when there exists suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before it can be accepted as genuine." 15. It is not necessary for us to delve at length to the facts of the matter as also the evidence adduced by the parties before the High Court. Suffice it to note that the execution of the Wills has to be proved in accordance with Section 68 of the Indian Evidence Act.”

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He also relied upon the decision in the case of Kunvarjeet Singh Khandpur –v- Kirandeep Kaur and others , reported in AIR 2008 SC 2058, wherein it has been held at paragraph-16 as follows:

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“16. Similarly reference was made to a decision of the Bombay High Court's case in Vasudev Daulatram Sadarangani v Sajni Prem Lalwani (AIR 1983 Bom 268). Para 16 reads as follows :

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"16. Rejecting Mr. Dalapatrai's contention, I summarise my conclusions thus :-

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(a) under the Limitation Act no period is advisedly prescribed within which an application for probate, letters of administration or succession certificate must be made;

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(b) the assumption that under Article 137 the right to apply necessarily accrues on the date of the death of the deceased, is unwarranted;

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(c) such an application is for the Court's permission to perform a legal duty created by a Will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long

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as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed;

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(d) the right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years from the date of the deceased's death.

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(e) delay beyond 3 years after the deceased's death would arouse suspicion and greater the delay, greater would be the suspicion;

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(f) such delay must be explained, but cannot be equated with the absolute bar of limitation; and

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(g) once execution and attestation are proved, suspicion of delay no longer operates".

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Mr. Udgata, learned counsel for the petitioners, therefore, submits that the Addl. Commissioner, Consolidation & Settlement while exercising power under Section 15(b) of the Settlement Act is devoid of any jurisdiction to issue direction for correction of the R.O.R. on the basis of a registered Will dispensing with the standard and burden of proof provided under Section 68 of the Evidence Act, 1872. Thus, the impugned order suffers from fundamental errors. Further, the Addl. Commissioner has taken into consideration certain facts, which were neither pleaded nor any material is available to that effect. In that context, Mr. Udgata, learned counsel submits that the Addl. Commissioner has observed that the opp. party no. 4, namely, Sagar Kumar Behera, was taking care of Nishamani during his life time, but referring to the revision petition as at Annexure-5, he submits that no such pleading is available in the revision petition. He,

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therefore, prays for setting aside the impugned order as well as the R.O.R. pursuant to all the consequential orders.

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Mr. Pradhan, learned counsel for the opp. party no. 4, vehemently opposed to the submission made by Mr. Udgata, learned counsel for the petitioners and submitted that the revisional court while exercising power under Section 15(b) of the Settlement Act has ample jurisdiction to direct for correction of the R.O.R. on the basis of a registered Will. He further submits that although notice was duly served on the petitioners as well as opp. parties 5 to 10, they preferred not to contest the revision and raise objection against the prayer of the petitioners in the revision petition. There is no material on record to show that any objection with regard to genuineness of the Will has been raised before the revisional court. Since the registered document was filed in original before the revisional authority, he has all power to take judicial notice of the same and pass order with regard to correction of the R.O.R. Thus, the revisional authority has committed no error in passing the impugned order and directing to record the case land in favour of opp. party no.4.

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Heard learned counsel for the parties and perused the materials available on record.

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This Court without delving into the other issues finds that the court or the authority while adjudicating the flow of right of a person on the basis of a registered

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Will cannot dispense with the standard of proof as required under Section 68 of the Evidence Act, 1872. On perusal of the order sheet of the revisional authority as at Annexure-6, it appears that no endeavour has been made to record evidence with regard to the genuineness of the registered Will in question. No material to that effect has also been produced by the opp. party no. 4 at the time of adjudication of the revision. Further, it is not clear as to whether notices on the petitioners and opp. parties 5 to 10 were served before adjudication of the revision.

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In that view of the matter, I am of the considered view that the impugned order under Annexure-6 is not sustainable in law. Accordingly, the impugned order under Annexure-6 and the R.O.R. under Annexure-7 published pursuant to Annexure-6 are set aside and the matter is remitted back to the revisional authority for fresh adjudication giving opportunity of hearing to the parties concerned. Since the opp. parties 5 to 10 have not yet appeared, this Court is not in a position to fix the date for their appearance before the revisional authority. However, the petitioners and opp. party no. 4 undertake to appear before the revisional authority on 28.01.2021 and produce an authenticated copy of this order before him to receive further instruction in the matter.

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With the aforesaid observation and direction, this writ petition is disposed of.

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Authenticated copy of this order downloaded from the website of this Court shall be treated at par with certified copy in the manner prescribed in this Court’s Notice No.4587 dated 25.03.2020.

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K.R. Mohapatra, J.

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bks

Srimati Rout v. Addl.Commissioner, Consolidation

Case brief

What is this about?

What did the court decide?

Srimati Rout v. Addl.Commissioner, Consolidation

Case brief

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