In a letter patent appeal, the Patna High Court dismissed a challenge to the rejection of a mutation order. The court held that failure to serve notice on interested heirs precluded proceeding with mutation, rendering further examination of the Will's validity unnecessary at that stage. The appeal was consigned to records.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.1409 of 2018
In
Civil Writ Jurisdiction Case No.11513 of 2018
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All Resident of Village - Aminabad, Anchal and P.S. - Barari, District - Katihar.
... ... Appellant/s
Versus
... ... Respondent/s
====================================================== Appearance : For the Appellant/s : Mr. Sri Narayan Singh, Sr. Advocate Mr. Birendra Kumar Singh, Advocate For RespondentNos.6-8 : Mr. Dhirendra Kumar Jha, Advocate Mr. Suresh Prasad Barnawal, Advocate
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CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE JUSTICE SMT. ANJANA MISHRA ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)
Date : 05-03-2019
Heard Shri Narayan Singh, learned Senior
Patna High Court L.P.A No.1409 of 2018 dt.05-03-2019 2/7
Counsel for the appellants.
Patna High Court L.P.A No.1409 of 2018 dt.05-03-2019 3/7
was raised in the year 2016 which reflects, that when the mutation had been carried out in the year 2010 and the Will had been acted upon with the tacit consent of the contesting opposite parties, it was not open for the mutating authority to have entertained any such objection after such a long time.
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judgment is erroneous additionally for the ground that the learned single Judge has mentioned that the Will ought to have been probated. Shri Singh submits that under Mohammedan Law, the probate of the Will is not necessary and therefore the conclusion of the learned single Judge being not sustainable in law, the impugned judgment as well the order of the reversal should be set aside and the mutation order should be maintained. Shri Singh has relied on the observations made by a learned single Judge in C.W.J.C. No. 8657 of 1998 (Janki Singh & Anr. vs. State of Bihar & Ors.), decided on 9th of July, 2015.
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of these Rules would leave no room for doubt that these are summary proceedings for the purpose of maintaining the records and in the present case, it was after the death of Bhikhari Miyan in the year 2009 that the issue of mutation arose when the 1973 Act read with 1976 Rules were in force. The mutation was carried out. However, when the objections were filed, the 2011 Act and the 2012 Rules were in force as the earlier Act and Rules had been repealed by a repeal and saving clause. The matter was examined and the appellate authority came to the conclusion that the heirs of Bhikhari Miyan had not been put to notice, namely, his first wife and his daughter. It is correct that the subsequent purchaser had raised the issue, but the fact remains that the mutation had been carried out without any notice to them. Learned counsel has urged that there was a general notice. In the absence of notice to the interested persons, a general notice or a notice to the cotenure-holders would not be a deemed notice unless there is any demonstrable evidence on record to establish the same. The appellate authority therefore came to the conclusion that in the absence of any notice to the said heirs, the matter could not have been proceeded with. It is
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this order which has been maintained up to the stage of the learned single Judge.
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find any error in the conclusion drawn by the learned single Judge without prejudice to the rights of the appellants to stake their claims before the mutating authority for mutation, in accordance with law on all possible legal issues.
records.
(Amreshwar Pratap Sahi, CJ)
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3 issues framed by the court
Whether rejection of mutation order due to lack of notice to heirs is conclusive without examining validity of Will.
Whether mutation proceedings can proceed if interested heirs were not put to notice.
Whether observation on probate of registered Will under Mohammedan Law is correct.
Aalam and others
State of Bihar through Principal Secretary, Govt. of Bihar, Revenue Department
Member, Administrative, Bihar Land Tribunal
Addl. Collector, Katihar
D.C.L.R., Katihar
Anchaladhikari, Barari Anchal
AMRESHWARPRA SAP SAHI
ANJANA MISHRA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
