Bombay High Court

Harsha Wd/O Dilipkumar Nachwani vs Smt. Kanta Wd/O Gopichand ... on 2 February, 2021

Bench: V.M. Deshpande

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     NAGPUR BENCH AT NAGPUR

                       WRIT PETITION NO.4375 OF 2016

      Harsha Wd/o Dilipkumar Nachwani,
      Aged about 35 years, Occ: Nil.
      C/o. Shri Nandlal Hingorani,
      Manjidana Colony in front of bus stop,
      Gitti Khadan, Nagpur.
      Tahsil and District Nagpur.
                                                                      ...PETITIONER

                               ...V E R S U S...

 1) Smt. Kanta Wd/o Gopichand Nachwani,
    Aged about 60 years, Occ: Housewife,

 2) Bhagchand s/o Gopichand Nachwani,
    Aged 33 years, Occ: Business,

      Both R/o Ward No.1, Ganesh Nagar,
      Sindhi Camp, Paratwada, Dist. Amravati.

 3) Smt. Meena W/o Rajesh Jagwani,
    Aged 38 years, Occ: Household
    R/o C/o Hirdamal Namumal,
    Budhwari Bazar, Seoni (M.P.).

 4) The Additional Commissioner,
    Amravati Division, Amravati
                                                                     ...RESPONDENTS
 -------------------------------------------------------------------------------------------
 Shri D.N. Dani, Advocate for petitioner.
 Shri A.M. Kadukar, A.G.P. for respondent No.4.
 -------------------------------------------------------------------------------------------
                                CORAM:- V. M. DESHPANDE, J.

DATED :- 2nd FEBRUARY, 2021.

ORAL JUDGMENT

Rule. Rule is taken up for final hearing immediately.

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 (2)            In this writ petition, on 17.10.2016, notices of final

disposal were issued. Learned Assistant Government Pleader on

the said date waived notice on behalf of the respondent no.4-

Additional Commissioner, Amravati Division, Amravati, whose

order is challenged in this writ petition. The respondent nos.1 to 3

were duly served. The respondent nos. 1 and 2 put their

appearance through Advocate Shri J.B. Kasat. Attempt was also

made during the pendency of this writ petition by sending writ

petition for mediation. However, said attempt was failed.

(3) This matter was listed before the me on 15.01.2021, on

the said day, Shri J.B. Kasat,learned counsel for respondent nos.1

and 2 filed a pursis for discharge from the proceedings since the

said respondents were not giving instructions to him and therefore

he was required to issue notice for discharge to them and in spite

of service they fail to give instructions to him.

(4) Right from beginning nobody is appearing on behalf of

respondent no.3 though notice of final disposal was served. On

15.01.2021 the matter was adjourned for two weeks, in order to

give one chance to respondent nos.1 and 2 to engage any other

counsel. However, nobody appeared for them.

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 (5)            Today, I have heard in extenso Shri Dani, learned

counsel for the petitioner and Smt. Barabde, learned Assistant

Government Pleader for respondent no.4- Additional

Commissioner, Amravati Division, Amravati.

(6) This petition is filed challenging the order passed by

the Additional Commissioner, Amravati Division, Amravati dated

08.04.2015 in Revision No.39/RTS-59/2011-12/Wadura, whereby

the respondent no.4 allowed the revision filed on behalf of

Gopichand and thereby set aside the order passed by the Sub-

Divisional Officer and Additional Collector, Amravati and directed

that the mutation No.648 recorded in the name of present

petitioner be cancelled. Gopichand and present petitioner were

directed to approach the Civil Court to submit the probate

certificate in respect of Will.

(7) In order to test the correctness of the order passed by

the respondent no.4, few fact will have to be enumerated giving

rise to this writ petition.

(8) Gopichand Nachwani was the father-in-law of the

present petitioner. Respondent no.1 is the widow of Dilip who was

son of Gopichand, whereas respondent nos.2 and 3 are son and

married daughter of Gopichand.

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 (9)            Dilip purchased an agricultural property bearing field

Survey No.357/3 admeasuring 1.62 Hector of village Wadura by

registered sale-deed dated 23.03.2005 from one Mohandas

Ghanshyamdas Nachwani. Dilip was the sole vendee in the

registered sale-deed.

(10) Dilip passed away on 07.09.2008 since he was suffering

from HIV Aids. The petitioner also suffers from the said disease.

(11) Be that as it may, prior to his death, Dilip executed a

Will on 08.08.2008. By said Will the agricultural property which

he purchased from Mohandas was bequeathed by him to his wife

i.e. present petitioner. The present petitioner is the only legattee

of the said Will.

(12) The petitioner after the death of her husband, applied

to record her name in place of her husband by giving the

application to the Talathi of Warud along with the Will. The

Talathi thereafter issued notice to all concerned. Gopichand

(father-in-law of the petitioner) objected in respect of the

certification of the mutation entry in the name of the petitioner.

Therefore, the Talathi recorded the disputed entry in the

concerned register and submitted the same to the Nayab

Tahsildar, Achalpur for further action. Consequent to that, a case

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was registered on the file of Nayab Tahsildar vide case No.RTS-

59/Wadura/12/2008-09.

(13) From the impugned order itself it is clear that after

hearing the parties the Nayab Tahsildar ordered that the name of

the petitioner be recorded in the village Form 6 and 7 vide order

dated 07.12.2009.

(14) Against this order, Gopichand (father-in-law of the

petitioner) filed an appeal before the Sub-Divisional Officer,

Achalpur and from the impugned order itself it is clear that the

appeal filed by Gopichand was dismissed on 28.03.2011.

Thereafter, Gopichand carried the said order in second appeal

before the Additional Collector, Amravati, however, Additional

Collector vide order dated 30.08.2011 dismissed the appeal and

confirmed the order passed by the Sub-Divisional Officer.

(15) Against these concurrent orders, Gopichand

approached to the Additional Commissioner by filing revision.

Before the Additional Commissioner it was contended on behalf of

Gopichand that the Will on the basis of which the name of the

petitioner is recorded is a forged document. It was contended that

though the sale-deed is executed in the name of Dilip alone, he

purchased the said property in his name from joint family

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properties fund. It was also contended that during the life time

Dilip executed partition deed and the land in question was given

to Gopichand.

(16) The respondent no.4 observed in the impugned

judgment and order that since there is a dispute in respect of the

Will executed by Dilip in favour of his wife i.e. present petitioner it

would be appropriate on the part of Gopichand and present

petitioner to file the suit and get the Will probated. Since the Will

is not probated, the respondent no.4 cancelled the mutation entry

by setting aside the concurrent orders of three revenue

authorities, which were challenged before it.

(17) In my view, the observations of the Additional

Commissioner that parties were required to get the Will probated

cannot stand to the scrutiny law in view of law laid-down by this

Court in Jyoti w/o Jagdish Singhai Vs. State of Maharashtra,

reported in 1979 Mh.L.J. 308 . The Will of Dilip was executed at

Nagpur. Therefore, in view of law laid-down in Jyoti's case cited

supra the observations of the Additional Commissioner that the

Will is not probated, is required to be set aside.

(18) During the course of the hearing it was submitted on

behalf of the learned counsel for the petitioner that after the

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impugned order is passed, Gopichand filed a suit against the

petitioner for declaration and perpetual injunction. Seeking

declaration that on the basis of partition deed dated 11.09.2007

he is the exclusive owner and petitioner who was made defendant

has no right in the said property.

(19) The learned counsel for the petitioner made available

to me for my perusal the copy of the plaint. On perusal of the

same would show that in the said suit Gopichand did not claim

that the Will executed in favour of the petitioner be declared as

null and void. The learned counsel for the petitioner submitted

that in the said suit petitioner filed an application under Order VII

Rule 11 of the Code of Civil Procedure for rejection of the plaint

that it is barred by limitation. As per submission of the learned

counsel for the petitioner, learned Civil Judge Junior Division on

01.04.2017 allowed the application filed on behalf of the

petitioner and rejected the application under Order VII Rule 11 of

the Code of Civil Procedure. Against that the appeal is presented

vide Regular Civil Appeal No.49 of 2017 and it is still pending.

During this, Gopichand passed away and therefore the present

writ petition was filed against Kantabai, the widow, Meena, the

married daughter and Bhagchand, the son of Gopichand.

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 (20)           Since probate is not necessary in view of the law laid-

down in the case of Jyoti's cited supra order passed by the

Additional Commissioner unsustainable and it is required to be

side aside. Further, whether the Will is genuine or forged as

contended by Gopichand was outside the jurisdiction of Revenue

Authorities. Only Civil Court could give finding in that behalf in a

suit filed for declaration that Will is bogus one. In my view, the

revenue authorities were right in recording the name of petitioner

on the basis of will in her favour. This could not have been set

aside without a decree from Civil Court by the Additional

Commissioner.

(21) The writ petition is allowed. The order passed by the

Additional Commissioner, Amravati Division, Amravati in Revision