A.C. Behera, J
1. This writ petition under Articles 226 and 227 of the Constitution of India, 1950 has been filed by the petitioner praying for setting aside an order
dated 25.10.2024 (Annexure-3) passed in Mutation Case No.411 of 2024 by the Tahasildar, Bisamkatak (Opposite Party No.2).
2. The factual backgrounds of this writ petition, which prompted the petitioner for filing of the same is that, one Ghasiani Biswanath, recorded owner
of the properties in Mouza-Buxisirapur under Khata No.31/70 Bisamkatak Tahasil of Rayagada district bequeathed the properties of said Khata
No.31/70 in favour of her son, i.e., petitioner executing and registering a will vide Will No.174 dated 28.02.2008.
When the said Testator of the aforesaid Will, i.e., Ghasiani Biswanath died on dated 20.11.2009, then, the petitioner possessed the aforesaid
bequeathed properties and filed a mutation case vide Mutation Case No.411 of 2024 before the Tahasildar, Bisamkatak(Opposite Party No.2) for the
mutation of the said properties to his name on the basis of that registered Will No.174 dated 28.02.2008.
As per the order dated 25.10.2024(Annexure-3), the Tahasildar, Bisamkatak(Opposite Party No.2) dropped that Mutation Case No.411 of 2024 filed
by the petitioner assigning reasons that,
“as per Indian Succession Act, 1925, a Will either registered or unregistered will have evidentiary value only after its adjudication by the court
of law and The Tahasildar court is only the executing court, not the court of law as defined in Indian Succession Act, 1925. Hence, the mutation case filed by the
petitioner is dropped with a request to the petitioner/applicant to file a declaratory suit seeking relief under Section 34 of the Specific Relief Act, 1963â€,
So, the petitioner challenged that (Annexure-3) passed by the Tahasildar, Bisamkatak (Opposite Party No.2) by filing this writ petition on the ground
that,
“When the properties covered under the Will No.174 dated 28.02.2008 executed in favour of the petitioner are situated in the district of Rayagada and the said Will
has been executed in the District of, Rayagada, which is outside the area specified in the Clauses of Section 57 of the Indian Succession Act, 1925 and when
Rayagada District was under the ex-princely State, then, the question of probation of that Will does not arise. For which, The Tahasildar, Bisamkatak(Opposite Party
No.2) should not have dropped the said mutation case as per Annexure-3â€.
3. I have already heard from the learned counsel for the petitioner and learned Additional Government Advocate for the State(Opposite Parties).
4. It is the settled propositions of law that, when a Will in question is executed in the Districts, which were coming under the ex-princely State like
Mayurbhanj, Bolangir, Koraput, Dhenkanal, Ganjam, Sundargarh, Sambalpur, Angul, Keonjhar, Rayagada, Jharsuguda, Malkanagiri and others, no
probate of Will is necessary. In the said Districts, Revenue Authorities and Tahasildars can proceed with the mutation cases on the basis of un-
probated Wills.
5. On this aspect, it has already been clarified by the Hon’ble Courts in the ratio of the decisions reported in
(I) 1972(2) C.W.R.-1451, Amrutlal Majhi and others vrs. Japi Sahuani and others. (II) AIR 1973 Orissa-112, Balaram Tripathy and another
vrs. Lokanath Tripathy. (III) 48(1979) CLT-211 (Para-8), Mst. Radha Hota vrs. Dutika Satpathy and another, (IV) 2008(I) OLR-729,
Sailabala Satpathy vrs, Parbati Satpathy and others. (V) 2009(II) CLR-155, Aparna Sahu and others vrs. Raghunath Biswal and others. (VI)
2012(II) OLR-394, Kunjabihari Sahu vrs. State of Orissa and others. (VII) 2015(II) CLR-1075 & 2015(II) OLR-1025, Ritesh Kumar Patel @
Ritesh Patel vrs. Kishore Chandra Patel and others. (VIII) W.P.(C) No.24927 of 2021, Subrat Purohit vrs. State of Orissa and others. (IX)
W.P.(C) No.33187 of 2021, Ratnamala Mishra vrs. State of Orissa and others. (X) W.P.(C) No.5216 of 2023, Fatik Bala and others vrs.
State of Odisha and others. (XI) 2023(I) CLR-621, Amrita Pandey vrs. State of Orissa and another that,
“If the Wills are executed in a place either outside the areas specified in the clauses of Section 57 of the Indian Succession Act, 1925 or in respect of the immovable
properties situated beyond the territories specified in clauses of Section 57 of the Indian Succession Act, 1925, those areas/territories were under the ex-princely State
called as Gadajat Wills, probate of such Wills are not required under law. The Revenue Authorities in the said areas can proceed with the mutation cases on the basis
of un-probated Wills.â€
6. Government of Orissa has issued a Letter vide letter No.23734 dated 13.08.2019 to the Collector, Mayurbhanj (which district was also coming
under the ex-princely State) on the basis of the decision of this Hon’ble Courts in a case between Ritesh Kumar Patel @ Ritesh Patel vrs.Â
Koshore Chandra Patel and others : reported in 2015(II) OLR-102, 5modifying the previous Letter No.16449 dated
07.05.2018 that,
“probate of a Will is not required in the District of Mayurbhanj and the Revenue Authorities can proceed with the mutation case, if the same is filed for mutation
on the basis of un-probated Will. Because, initiation of probate proceeding for probation of a Will is not necessary in the district of Mayurbhanj. For which, the
restriction for mutation of the properties on the basis of an un-probated Will in the district of Mayurbhanj as directed earlier in Para No.6 of Letter No.16449 dated
07.05.2018 of the Government stands modified.â€
7. In view of the ratio of the aforesaid decisions of the Hon’ble Courts as well as Letter No.23734 dated 13.08.2019 of Government of Odisha,
“no probate is necessary in respect of “Gadajat Wills†and the revenue courts including Tahasildars in such areas of the Districts in the State
shall entertain mutation cases on the basis of un-probated Wills.
8. As per law, it is beyond the jurisdiction of the revenue authorities to decide the disputed matters concerning the Wills, if dispute arises before the
revenue authorities either in respect of the genuineness of the Will in question or in respect of the properties covered under the Will.
9. On this aspect, the propositions of law has already been clarified by the Hon’ble Courts and Apex Court in the ratio ofÂ
the following decisions:-
(i) In a case between Pradeep Kumar Singh and another vrs. State of Uttar Pradesh Through Secy. Revenue Lko. and others : reported in 2022(4) Civil Court Cases-
455(Allahabad) that, in a mutation case, where Will is still subject to scrutiny of appropriate civil Court, then finding of civil Court will be binding on mutation court.
(Para-15)
(ii) In a case between Noor Ahmad @ Chand vrs. Board of Revenue and others  : reported  in 2022(1) Civil Court Cases-
391(Allahabad)â€" Legality of Will, cannot be tested in mutation proceedings and could have been tested only in a regular proceedings.(Para-6)
(iii) In a case between Ashok Kumar Pati and another vrs. State of Orissa and others : reported in 2021(I) OLR-655â€"Contentious issue of title claim based on a Will
cannot be decided by a Revisional Authority under Section 15(b) of OSS Act, 1958â€"Amount to exercise of excess jurisdictionâ€"Issue of title can only be decided
by a Civil Court.
(iv) In a case between Jitendra Singh vrs. State of Madhya Pradesh and others : reported in 2021(4) Civil Court Cases(S.C.)-
29â€"Mutationâ€"When an application for mutation is filed on the basis of Will, if dispute is with respect to title and more particularly, when mutation is sought on
the basis of Will, such party has to get his rights crystalized by Civil Court and only thereafter on the basis of decision of Civil Court, necessary mutation entry can
be made.(Para-5)
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10. It is the clarified propositions of law according to the principles of law enunciated in the ratio of the above decisions of the Hon’ble Courts
and Apex Court as well as Letter No.23734 dated 13.08.2019 of the Government of Orissa that, “Mutation cases in
the areas inside the State of Odisha, those were coming under the ex-princely State, on the basis of un-probated Wills are entertainable by the
Revenue Authorities and Tahasildars, but, if after initiation of mutation proceedings on the basis of un-probated Wills, any dispute either in respect to
the genuineness of such un-probated Wills in question or any dispute concerning the properties covered under the said Wills is raised, then, the
Revenue Authorities and Tahasildars have no other option, but, to drop the mutation proceeding directing the parties thereof to crystalize their rights by
the Civil Court and only thereafter on the basis of the decision of the Civil Court, necessary mutation entry can be made. Because, in a mutation
proceeding, Revenue Authorities and Tahasildars have no jurisdiction to decide any contentious issue based on a Will.
11. As per the discussions and observations made above, when, it is held that, there is no requirement for probation of the Will executed in favour of
the wit petitioner (applicant in Mutation Case No.411 of 2024), because the said Will dated 28.08.2008 has been executed in the District of Rayagada,
(which was under the ex-princely State remaining with undivided Koraput District) in respect of the properties under Bisamkatak Tahasil, then, at this
juncture, order dated 25.10.2024(Annexure-3) passed by the Tahasildar, Bisamkatak (Opposite Party no.2) to drop the Mutation Case No.411 of 2024,
requesting him (petitioner) to file a declaratory suit seeking reliefs under Section 34 of the Specific Relief Act, 1963 cannot be sustainable under law.
For which, order dated 25.10.2024 (Annexure-3) passed by the Opposite Party No.2 (Tahasildar, Bisamkatak) in Mutation Case No.411 of 2024 is to
be quashed.
Therefore, the writ petition filed by the petitioner is allowed. Order dated 25.10.2024 (Annexure-3) passed in Mutation Case No.411 of 2024 by the
Opposite Party No.2(Tahasildar, Bisamkatak) is quashed.
12. The Tahasildar, Bisamkatak (Opposite Party No.2) is directed to consider the mutation case vide Mutation Case No.411 of 2024 afresh and to
proceed with the same as per law following the formulated guidelines given in this judgment.
13. In order to avoid the similar nature of litigation in future relating to mutation of records on the basis of un-probated Wills in Gadjat areas of the
State of Odisha (those were under ex-princely State), it is pertinent to issue the following guidelines to be followed by the Revenue Authorities-cum-
Tahasildars, for initiation and disposal of mutation cases on the basis of the un-probated Wills i.e.:-
(i) The Revenue Authorities including The Tahasildars and others, those are dealing with the mutation cases in the areas inside the State of Odisha (those were under
ex-princely State) cannot refuse to entertain/register mutation cases on the basis of un-probated Wills.
(ii) Soon after, registration of a mutation case, on the basis of an un-probated Will, a report is to be called for from the local Revenue Inspector or from any other
authentic source, as it deems fit and proper to ascertain the names and addresses of all the legal heirs of the testator or testators in the natural line of succession.
(iii) After ascertaining the names and addresses of all the legal heirs of the testator or testators in the natural line of succession, notices shall be issued to them along
with notices to others, if any, as per law inviting their objection and participation.
(iv) If after receiving such notices, dispute is raised by the invitees of the notices either in respect of the genuineness of the Will in question or in respect of the
properties covered under the said Will, then, the Revenue Authorities or Tahasildars shall drop the mutation proceeding leaving the parties to get their rights
crystalized before the civil Court.
(v) After crystallization of their rights before the Civil Court, necessary mutation entry can be made by the Revenue Authorities or Tahasildars on the basis of decree
of the Civil Court.
14. So, with the aforesaid findings, observations, clarifications and guidelines, this writ petition is disposed of finally..
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