Probate Of Wills Executed In Ex-Princely States Not Necessary: Orissa HC Issues Guidelines For Disposal Of Mutation Cases Based On 'Gadajat Wills'
The Orissa High Court has reiterated that probate of Wills executed in ex-princely states/Gadajat states is not necessary and thus, the revenue authorities can proceed for mutation on the basis of un-probated Wills in such areas.
A Single Bench of Justice Ananda Chandra Behera referred to a number of precedents on the above position of law and clarified 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.”
Case Background
One Krushna Sahu, the recorded owner of three numbers of plots under Gunupur Tahasil in the district of Rayagada bequeathed the properties of said plots in favour of his son and daughter in-law (the petitioners) by executing and registering a Will dated 02.12.2021.
The testator of the aforesaid Will died on dated 30.04.2022. Subsequently, the petitioners took into possession the aforesaid bequeathed properties and filed a mutation case before the Tahasildar, Gunupur for the mutation in favour of their names on the basis of the registered Will dated 02.12.2021.
However, by an order dated 06.11.2024, the Tahasildar, Gunupur dropped that mutation case on the ground of failure on the part of the petitioners to produce the probate of the 'willnama' from the competent Court. Being aggrieved by such order, they filed this writ petition.
It was their contention that when the properties covered under the Will, executed in favour of the petitioners, are situated in the district of Rayagada and most importantly, when the said Will has been executed in the District of Rayagada, which is outside the areas specified in the clauses of Section 57 of the Indian Succession Act, 1925 and also, when Rayagada District was under the ex-princely State, the question of probation of that Will does not arise. Therefore, they argued that the Tahasildar erred in dropping the mutation case.
Court's Observations
The Court, at the very outset, made it clear that when a Will is executed in the districts which were coming under the ex-princely States like Mayurbhanj, Bolangir, Koraput, Dhenkanal, Ganjam, Sundargarh, Sambalpur, Angul, Keonjhar, Rayagada, Jharsuguda and Malkangiri, no probate of Will is necessary. In the said districts, it said, revenue authorities and Tahasildars can proceed with the mutation cases on the basis of un-probated Wills.
It cited a plethora of precedents from the High Court in which it was commonly held that the Wills which are executed in a place either outside the areas specified in the clauses of Section 57 of the Indian Succession Act or in respect of the immovable properties situated beyond the territories specified in clauses of Section 57, those areas/territories were under the ex-princely states called as Gadajat states and hence, probate of such Wills are not required under the law.
Further, the Court noted that the Government of Odisha has issued a letter dated 13.08.2019 pursuant to the decision of the High Court in Ritesh Kumar Patel @ Ritesh Patel v. Kishore Chandra Patel & Ors. (2015) which clarified that no probate is necessary in respect of 'Gadajat Wills' (Wills emanating from ex-princely states) and the Revenue Courts including Tahasildars in such areas shall entertain mutation cases on the basis of un-probated Wills.
Justice Behera, however, clarified that 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 or any dispute concerning the properties covered under the said Wills is raised, then the revenue authorities and Tahasildars will have to drop the mutation proceeding directing the parties to approach Civil Court for an authoritative decision and only thereafter, on the basis of the decision of the Civil Court, the necessary mutation entry can be made.
In the present case, as the Will in question was executed within the district of Rayagada, which earlier constituted a part of the princely state, the Court was of the view that its probate is unnecessary. Accordingly, it found the order of the Tahasildar dropping the mutation proceeding for lack of probate to be untenable in the eyes of law. The Tahasildar was, therefore, directed to consider the mutation case afresh without asking for probate of the Will.
To rule out similar nature of litigation in the future involving mutation on the basis of un-probated Wills in Gadajat areas of the State of Odisha, the Court issued the following guidelines to be followed by the Revenue Authorities-cum-Tahasildars –
- 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.
- 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.
- 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.
- 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.
- 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 the decree of the Civil Court.
Case Title: Ramesh Chandra Sahu & Anr. v. The State of Odisha
Case No: W.P.(C) No. 1848 of 2025
Date of Judgment: February 18, 2025
Counsel for the Petitioners: Mr. S.K. Dash, Advocate
Counsel for the State: Mr. G. Mohanty, Standing Counsel
Citation: 2025 LiveLaw (Ori) 47