Shri Mahendrasinh Dilawarsinh ... vs State Of Gujarat
2022 Latest Caselaw 4986 Guj

     C/SCA/5448/2018                            JUDGMENT DATED: 09/06/2022



         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CIVIL APPLICATION NO. 5448 of 2018
                              With
          R/SPECIAL CIVIL APPLICATION NO. 5449 of 2018

FOR APPROVAL AND SIGNATURE:                               SD/-


HONOURABLE DR. JUSTICE A. P. THAKER

=============================================

1     Whether Reporters of Local Papers may be allowed               No
      to see the judgment ?

2     To be referred to the Reporter or not ?                        Yes

3     Whether their Lordships wish to see the fair copy              No
      of the judgment ?

4     Whether this case involves a substantial question              No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

=============================================
               SHRI MAHENDRASINH DILAWARSINH VAGHELA
                               Versus
                          STATE OF GUJARAT
=============================================
Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
MR CHINMAY M GANDHI(3979) for the Respondent(s) No. 6,7
MS NIKITA C GANDHI(11570) for the Respondent(s) No. 6,7
MS RUMI M GANDHI(3472) for the Respondent(s) No. 6,7
NOTICE SERVED BY DS for the Respondent(s) No. 2,3,4,5
RISHI O MALIK(7727) for the Respondent(s) No. 6,7
MS DHWANI TRIPATHI, AGP for the Respondent(s) No. 1
=============================================

    CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

                          Date : 09/06/2022

                           ORAL JUDGMENT

1. Both these petitions are filed by the petitioner

against the same order of the Learned Special Secretary,

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Revenue Department ("Ld. SSRD" for short) passed in two

separate Revision Applications filed by the petitioner as

well as private respondents. Therefore, both have been

admitted together and heard together.

2. Special Civil Application No. 5448 of 2018 is treated

as a lead matter and necessary facts narrated from the

same is taken as common facts are alleged in both the

petitions.

3. The respective petitioner has filed the petitions under

Article 226 of the Constitution challenging the impugned

order passed by the Ld. SSRD dated 08.02.2018 in

Revision Application No. MVV/HKP/AMD/167 of 2017,

whereby order of subordinate authorities have been

confirmed and the revision applications filed by the

petitioner has been dismissed.

4. Special Civil Application No. 5449 of 2019 is passed

against the same order whereby the Revision Application

filed by the private respondents being No. MVV/HKP/AMD/

172 of 2017 came to be allowed.

5. The brief facts of both the petitions, in nutshell, are

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as under:

5.1 Father of the petitioner namely Dilawarshinh Vaghela

joined in Kuchchh State Force on 23.06.1942 and

continued his service till 23.11.1949. He became Jail

Superintendent of Kutch Central Prison and thereafter,

was serving in Sabarmati Central Jail. He was murdered

while on duty. The State Government on 29.11.1977

allotted lands situated at Block Nos. 114, 117, 118, 119,

120, 121, 122, 124, 125, 126 and 127 of Village Visalpur,

Tal. Daskroi, Dist. Ahmedabad, admeasuring 14 Acres and

29 Gunthas to the mother of the petitioner namely

Kusumba Dilawarshinh Vaghela. The lands were given to

mother of the petitioner on permanent basis by the State

Government and consideration of 12 patt was paid by his

mother only at the time of allotment of the lands in

question. Entry No.6265 was mutated in revenue records

in the name of the petitioner's mother. Initially, the said

order of 29.11.1977 was taken into revision by the State

Government and was cancelled by order dated

22.01.1979. The said order was challenged by mother of

the petitioner by filing Special Civil Application No.422 of

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1979 before this Court, which came to be withdrawn and

at that time, the State Government, based on its own

policy, re-granted the said lands as a special case by order

dated 30.03.1992 and thus, the lands remained with the

petitioner's mother and her name was restored.

5.2 That the lands in question were converted into old

tenure land by order dated 30.03.1999 of the Mamlatdar

and necessary premium was paid by petitioner's mother

individually and thereafter, land has been shown as old

tenure lands.

5.3 That during lifetime of petitioner's mother, Entry

No.7764 was mutated in the revenue record for the lands

in question wherein, it was stated that the petitioner and

private respondents are the co-owners / co-shares of the

lands in question. The said entry came to be cancelled as

it was mutated without consent and without hearing

petitioner's mother - Kusumba. Thus, this fact has become

final and it has not been challenged by anybody.

5.4 That during lifetime of petitioner's mother at her

instance, Entry No.7869 was mutated on 15.04.2009,

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wherein petitioner's name was entered as co-shares of

lands in question along with his mother and same entry

was certified.

5.5 Petitioner's mother executed a registered Will dated

31.08.2007, wherein lands in question were bequeathed

to the present petitioner. There were averments which

revealed that private respondents have been given their

shares from the other properties, and therefore, the lands

in question were solely bequeathed to the petitioner.

5.6 That Entry No.7869, which was made showing the

petitioner as co-shares with his mother, came to be

challenged by the private respondents by filing (Old RTS

Appeal No.825 of 2011) New RTS Appeal No.574 of 2011

on 12.07.2011 and application was filed for condonation

of delay as there was delay of more than two years.

Meanwhile, petitioner's mother passed away on

20.12.2011. The Deputy Collector, without deciding the

application of condonation of delay straightaway heard

the revision on merits and quashed the Entry No.7869 and

the said proceedings the Deputy Collector quashed the

entry on the ground that lands in question would devolved

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upon all heirs.

5.7 That, Mamlatdar has also passed order dated

25.10.2012 cancelling the Entry No.8928, which was

based upon the Will. The petitioner challenged the said

order of the Mamlatdar by preferring Revision Application

No.173 of 2012 before the District Collector on

28.06.2012, which came to be dismissed vide order dated

11.03.2013. This order of the Collector was challenged by

the petitioner by filing Revision Application No.

MVV/HAKAP/AMAD/54/2013 before Ld. SSRD, which came

to be dismissed on 20.05.2015. Against the said order,

petitioner preferred Special Civil Application No.9006 of

2015 before this Court.

5.8 Meanwhile, the petitioner preferred Civil Misc.

Application (Probate) No.56 of 2012 before the Civil Court

to get probate of Will of his mother; the same had been

objected by the private respondents. The petitioner

preferred Revision Application before the Ld. SSRD, which

came to be dismissed. Therefore, the petitioner preferred

Special Civil Application No.18529 of 2013, which came to

be disposed of vide order dated 22.12.2014 with direction

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to the Ld. SSRD to decide the revision application

expeditiously. Against the order of the cancellation of the

revenue entry based upon a Will by the Mamlatdar vide

order dated 25.10.2012, the petitioner preferred Appeal

No.15 of 2013 before the Deputy Collector, which was

dismissed. The Mamlatdar has also cancelled the heirship

entry of the private respondents being Entry No.8897.

5.9 Meanwhile, the petitioner has also filed application in

the probate matter for interim injunction wherein, order of

status quo was passed by the Trial Court. Against which,

petitioner preferred Appeal from order No. 252 of 2016,

wherein this Court granted interim relief against the order

of the Trial Court.

5.10 Against the order passed by the Deputy

Collector in Appeal No.15 of 2013, the petitioner preferred

Revision Application no.858 of 2015 before the Ld. District

Collector. At the same time, as the heirship entry was

cancelled by the Mamlatdar vide his order dated

23.10.2012, the private respondents have also preferred

an Appeal No.126 of 2013 before the Deputy Collector,

which came to be rejected vide order dated 11.09.2015.

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Being aggrieved by this order of the Deputy Collector, the

private respondents have preferred Revision Application

No.829 of 2015 before the District Collector.

5.11 The Ld. District Collector has disposed of both

the Revision Application Nos. 829 and 858 of 2015 by

common order dated 31.03.2017.

5.12 Being aggrieved by this order passed in Revision

Application preferred by the petitioner bearing No.858 of

2015, the petitioner preferred Revision Application No.

MVV/HKP/AMD/167 of 2017, whereas private respondents

preferred Revision Application No. MVV/HKP/AMD/172 of

2017 challenging the order of the District Collector passed

in their Revision Application No. 829 of 2015. By the

common order, the Ld. SSRD has rejected the revision

filed by the present petitioner being No.167 of 2017 and

has allowed the Revision Application No. 172 of 2017 of

the private respondents. This order of Ld. SSRD has given

rise to filing of two separate Special Civil Applications by

the petitioner, one for restoration of the revenue entry

based upon a Will and one against confirming the entry

made based upon heirship.

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5.13 It appears from the records that neither the

State Government nor the private respondents have filed

any affidavit-in-reply in both the petitions.

6. Heard learned Counsel Mr. S.P. Majmudar for the

petitioner, Ms. Dhwani Tripathi, learned Asst. Government

Pleader for the State and Senior Counsel Mr. M.B. Gandhi

with Cinmay M. Gandhi, learned advocate for the private

respondents for both the petitions at length. Perused the

material placed on the record and the decision cited at

Bar.

7. Learned Counsel Mr. Majmudar for the petitioner has

vehemently submitted the same facts which are narrated

in the Memo of petition and which are referred to herein-

above as a brief facts. Mr. Majumdar has submitted that

the lands in question were allotted to the petitioner's

mother individually and it was her personal property.

According to him, under Section 14 of the Hindu

Succession Act, 1956, one can dispose of her own

property as per her wish. He has submitted that the lands

in question are not an ancestral property, and therefore,

the respondents cannot have any right of heirship in the

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property as the deceased i.e. petitioner's mother has

executed a registered Will and has bequeathed entire

lands in question in favour of the petitioner. He has

submitted that since the property is situated with in the

Gujarat, in view of the provisions contained in the Indian

Succession Act, there is no need to obtain any probate for

execution in respect of the registered Will. Mr. Majumdar

has submitted that however, as a precautionary action,

the petitioner has applied of probate of the Will. Mr.

Majmudar while referring to the Will has submitted that

there is a clear averment in the Will that the mother has

given other property to the private respondents, and

therefore, she has bequeathed the entire lands in question

to the present petitioner. He has submitted that since the

Will was registered one, it is incumbent upon part of the

revenue authority to make entry in revenue record as per

Section 135(C) of the Land Revenue Code. He has

submitted that the Will in question is still not set aside by

any Court. He also submitted that the probate proceedings

is also pending. However, since the Will is registered one

and the entry made on the registered document cannot be

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set aside by the revenue authority. He has also submitted

that revenue authority has no right to decide civil rights of

the parties in the RTS proceedings. He has submitted that

the authorities have exceeded their jurisdiction in

cancelling the entry made on the basis of the Will.

7.1 Mr. Majmudar has also submitted that the heirship

entry got entered by the respondents is against the

wishes of the deceased as by virtue of Will, she has

bequeathed her personal property entirely in favour of the

petitioner, and therefore, the order of the Mamlatdar

cancelling the heirship entry was proper one and

therefore, Ld. SSRD ought not to have interfered with the

order of subordinate authority of cancelling the heirship

entry. He has also submitted that the entry based upon

the Will ought to have been challenged by the

respondents within the period of 60 days. However, he has

preferred RTS appeal after almost 2/½ years and without

deciding the delay condone application the Deputy

Collector has straightaway decided the matter which is

absolutely illegal. He has submitted that considering the

facts of the case since the revenue authority has no rights

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to go into the questions of title of the property in the RTS

proceedings, the impugned order passed by the Ld. SSRD

rejecting the Revision Application preferred by the

petitioner and allowing the Revision Application of the

private respondents is completely not sustainable in the

eyes of law.

7.2 He has also submitted that the authority has

misdirected itself by observing that the lands are of new

tenure land. He has submitted that from the revenue

record itself, it reveals that the lands are already

converted to old tenure land by the Mamlatdar, and

therefore, the observations regarding lands being of new

tenure land is erroneous on the part of the authority

concerned. Mr. Majmudar has submitted to allow both the

petitions. He has relied upon the following decisions:

I. In case of Mumtaz Mehmoodkhan Pathan Vs.

State of Gujarat; reported in 2003 JX (Guj.) 199

wherein it has held in Paragraph - 5 as under:-

"In view of the aforesaid, I find that it had come on record that the entry was mutated in the year 1981 on the basis of the registered will and when it had come on record

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before the Secretary of the State Government that Civil Suit which is preferred by the respondents nos.3, 4 and 5 is pending in the Civil Court and earlier entry came to be mutated on the basis of the registered will, the Secretary ought to have relegated respondents nos.3, 4 and 5 to await until the outcome of Civil Suit No.972 of 1993. He ought not to have observed for examining the right on the basis of succession over the property in question. When the basis of the right of the petitioner is on a registered will, unless the Court makes a declaration that the will is unlawful or is otherwise, the successory right over the property cannot be asserted. I am not expressing any final opinion on the said aspects since the civil suit is pending before the appropriate Court but, suffice it to say that the Secretary of the State Government ought not to have dismissed the revision by observing that until the suit is decided the revenue officer can examine the matter on the basis of the successory right over the property in question and therefore in my view the Secretary has committed an error which is apparent on the face of the record and it can also be said that he has exceeded in exercise of the jurisdiction while deciding the revision application."

II. In case of Chhimiben Wd/o Hirabhai Gopalbhai

Vs. State of Gujarat reported in 2006 (3) GLR 2455

wherein it has held in Paragraph - 4 as under:-

"It is by now well settled that the entry in the revenue record neither confers any additional right over the property nor takes away or alters the rights in the property, which otherwise exist as per the provisions of the Transfer of Properties Act or other law and such entries are

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having value for fiscal purposes. It appears that there is delay on the part of the respondent No. 5 in challenging the decision of the authority mutating the entry. However, the contentions on the part of respondent No. 5 are two fold; one is that the mandatory procedure is not followed and another is that the Will is a fraud. Whether the mandatory procedure is followed or not and whether the Will is genuine or not is an aspect, which can conveniently be examined in the proceedings of the Civil Suit which has been filed by the petitioners being Civil Suit No. 664/05.

Therefore, until such finding is arrived at in the Suit that the mandatory procedure is not followed or that the Will is not genuine, the entry can be allowed to be continued on revenue record subject to the outcome of the proceedings of Regular Civil Suit No. 664/05. In the event, the respondent No. 5 succeeds in the Suit, appropriate recording will have to be made in the revenue record and the rights of the parties may prevail accordingly. Until such declaration is given by the Civil Court that the Will is not genuine or that the mandatory procedure is not followed, it was not required for the State Government to give a declaration that the entry was a nullity and even the subsequent entry which was not subject matter of the proceedings of the revision could not be cancelled. No further discussion is required in this regard since the position of the law is settled. The reference may be given to the decision of this Court in the case of Jhaverbhai Savjibhai Patel through P.A.O. Holder Ashok J. Patel v. Kanchaben Nathubhai Patel and Ors. reported at 2005(3) GLR 2233. Of course, it was a case of a Registered Sale Deed, but in the present case, since the entry was based on the Will and it is continued on record for a long time and the Civil Court may also be required to examine as to

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whether probate was a mandatory requirement in a Will executed by Hindu when the property is not situated in Bombay, Madras or Calcutta, the same analogy as it was observed in case of Jhaverbhai Savjibhai Patel(Supra) can be made applicable even in the facts of the present case."

III. In case of Minaxiben Shashikantbhai Patel Vs.

District Collector, Gandhinagar reported in 2007 (1)

GLR 277 wherein it has held in Paragraph - 10 as under:-

"Therefore, in view of the aforesaid legal position that for a Will executed by a Hindu qua the immovable property situated outside the territory of original civil jurisdiction of High Court of Bombay and Madras, the Probate is not compulsory for establishing the rights in the property as the property in the present case is situated in Gandhinagar, even without probate the legatee who is the petitioner in the present case can establish the rights pursuant to the Will executed by deceased Chandubhai Jivabhai Patel who is admittedly Hindu. Hence, the stand of the District Collector insisting the probate for the Will in question cannot be sustained in the eye of law and deserves to be quashed and set aside."

8. Learned Asst. Government Pleader Ms. Tripathi for

the State has submitted that various litigations are

pending with the parties. She has submitted that the order

of the Collector and the SSRD are proper one. She has

submitted that the order has been subject to the order of

the Civil Court in respect to the entries, and therefore,

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according to her version, the petitions may be dismissed.

9. Learned Senior Counsel Mr. Gandhi for the private

respondents has vehemently submitted that there are

three rounds of litigations between the parties. He has

submitted that the lands were allotted to the petitioner's

mother due to death of husband while he was on duty and

therefore, the lands cannot be the personal property of

the deceased Kusumba Vaghela. While referring to the

allotment letter, he has submitted that there is a condition

of non-alienation, and therefore, without the prior

permission of the authority, she could not alienate or

transfer the lands in favour of the petitioner. He has

submitted that as per the condition No.6, the owner of the

lands is of the government, and therefore, order of

conversion of lands from new tenure land to old tenure

land is nullity. He has submitted that according to the

policy of 1960, the lands were allotted to deceased

Kusumba as her husband was murdered while he was on

duty. He has also submitted that as per the conditions

incorporated in the allotment letter, transfer is completely

prohibited and if the property is bequeathed by Will, it is

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one type of transfer of the lands, and therefore, it will be

in breach of the condition of the allotment. Learned Senior

Counsel Mr. Gandhi has also submitted that the private

respondent has right and title in the said lands as he is the

brother of the petitioner. He has also submitted that since

the lands were not a personal property of the deceased,

aggrieved heirs of the deceased are entitled to have a

share in the property and accordingly heirship entry was

mutated in the revenue record, which has been wrongly

cancelled by the order of the Mamlatdar, which was now

rectified by the Ld. SSRD. According to him, the Ld. SSRD

has properly appreciated the facts and has rightly allowed

the revision preferred by the private respondents for

restoration of entry of heirship.

9.1 Ld. Senior Counsel Mr. Gandhi has also submitted

that the entry based upon a Will was not proper one as the

petitioner has not obtained any probate and the Will itself

is under challenge. He has also submitted that since the

deceased cannot transfer the property as per the

condition of the allotment letter, bequeathing of a

property by Will is nullity itself. Therefore, according to

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him, the Mamlatdar and all the revenue authorities have

properly cancelled the entry based upon a Will. He has

submitted that since the dispute regarding the Will and

title to the property is subjudice and pending before the

Civil Court, the present petitions deserve to be dismissed.

9.2 He has also submitted that the petitioner herein has

challenged the order of status quo passed by the Civil

Court by preferring the appeal from order and the same is

pending before this Court, and therefore, also this petition

be dismissed and even it is decided then there might be a

conflicting decision pertaining to the same matter. Mr.

Gandhi has relied upon the decision reported in

Chhimiben Wd/o Hirabhai (Supra). He has prayed to

dismiss both the petitions.

10. In rejoinder, learned counsel Mr. Majumdar for the

petitioner has submitted that since the lands were already

converted from new tenure land to old tenure land, all the

conditions of allotment has fells into insignificance, and

therefore, all the submissions made upon conditions of

original grant cannot be accepted. He has also submitted

that even the government has not challenged the Will on

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the ground that there is breach of conditions of the

allotment. He has prayed to allow both the petitions.

11. Having considered the submissions made on behalf

of both the sides coupled with the material placed on

record and the citations which are cited at Bar, it emerges

that there is no dispute regarding the fact that the

petitioner and the private respondents are not stranger. It

is also undisputed fact that the present petitioner and

respondent No.6 Balbhadrasinh Dilawarsinh Vaghela are

real brothers and deceased Kusumba Dilawarsinh Vaghela

was mother of both of them. It is admitted fact that lands

in question were allotted to deceased Kusumba. It appears

from the record that lands were allotted to deceased as a

special case in consequence of the government policies of

1960's and various amendments made thereafter. It also

reveals that initially lands were allotted and thereafter,

same was taken into revision and order was cancelled.

However, the lands were re-granted to her. It also appears

from the record that on 30.03.1999, the lands in question

came to be converted into old tenure land from new

tenure land as per the order of Mamlatdar, which is placed

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on record at Page-58 in the matter. In the said order

various conditions have been incorporated which restricts

only right of the holder from changing the use from

agriculture to non-agriculture purpose. There is no

restrictions in the said order against the alienation in any

manner of the lands in question. Thus, the very

submissions made on behalf of the private respondents

that it was a government land and it could not be

transferred in any manner has no substance in the eyes of

law. When the lands were already converted into old

tenure land, all the restrictions, except those enumerated

in the order of conversion of lands from new tenure to old

tenure, does not remain attached with the lands.

Therefore, the lands could be alienated by the owner

thereof by necessary implication. It is also appears from

the record that lands were allotted to deceased Kusumba

and not as a joint owner. Therefore, the deceased had

complete right of alienation of the said lands as per her

wish. Since the lands were allotted to the deceased

Kusumba, property acquired by her would be her personal

property, and therefore, she would be entitled to disposed

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it of as per her own wishes.

12. Now, in this case, it reveals from the records that

deceased has executed a registered Will bequeathing the

entire property to the present petitioner. The copy of the

Will is produced along with the matter. On perusal of it, it

reveals that there is averments made that she has given

other property to her other son i.e. respondent herein.

Now, it is admitted facts that this is a registered Will,

according to Section 135(C) of the Land Revenue Code, it

is incumbent on part of the revenue authority to make

entry of any registered document made in relation to any

land. Therefore, any entry made on the base of the Will

would be proper compliance of the provisions of Section

135(C) of the Land Revenue Code. Of course, there is

some disputes between the parties regarding the Will.

However, facts remains that the Will is yet not declared by

any Civil Court as an illegal one or nor it is set aside by

any Civil Court. Therefore, until such finding is arrived at

by the Civil Court, the entry based upon the Will needs to

be allowed to be continued on revenue record. The order

of the revenue authorities cancelling the entry made on

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the basis of the registered Will is not in consonance with

the well settled principles of law. Moreover, in an RTS

proceedings, the revenue authority have no jurisdiction to

decide the questions of title to the property. Only the Civil

Court has right to decide the title of the property.

Therefore, even on this ground the impugned order of the

revenue authorities cancelling the entries, which was

based on Will needs to be quashed and set aside.

13. Further, so far as the order of the subordinate

authorities regarding cancellation of the entry based upon

heirship is concerned, it needs to be observed that the

lands in question were allotted only to deceased Kusumba

and it was her personal property and she had executed

Will therefore, if entries made on the basis of the said Will,

the name of the person in whose favour property is

bequeathed needs to be entered into and no any other

person can insist for mutation of his name in the revenue

record. Therefore, considering the facts and circumstances

of this case, the order of Ld. SSRD allowing the revision of

the private respondents regarding restoration of heirship

entry is not sustainable in the eyes of law and the same

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deserves to be quashed and set aside.

14. In view of the above discussion, both the petitions

needs to be allowed with the observation that entry based

upon the Will shall continue in the revenue record subject

to the outcome of the proceeding of the Civil Suit and

after the decision of the Civil Court in the pending

litigation pertaining to the Will, rights of the parties shall

governed accordingly.

15. Accordingly, Special Civil Application No.5448 of

2018 is partly allowed. The impugned order dated

08.02.2018 passed by Ld. SSRD in Revision Application

No. MVV/HKP/AMD/167 of 2017, order dated 31.03.2017

passed by the District Collector in Revision Application No.

858 of 2015, order dated 11.09.2015 passed by the

Deputy Collector in Appeal No. 15 of 2013 as well as order

dated 23.10.2012 passed by the Mamlatdar are hereby

quashed and set aside and respondent authorities are

directed to restore the revenue entry made based upon

the Will in the revenue record subject to the outcome of

the civil proceedings and after the decision of the Civil

Court relating to the property in question, right of the

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parties shall be governed accordingly.

16. Special Civil Application No. 5449 of 2019 is hereby

allowed and the impugned order dated 08.12.2018

passed by the Ld. SSRD in Revision Application No.

MVV/HKP/AMD/172 of 2017 is hereby quashed and set

aside.

17. There shall be no order as to costs. Direct service is

permitted.

SD/-

(DR. A. P. THAKER, J)

Further order in SCA 5449/2018:

Learned advocate Mr. Gandhi appearing for the

respondent seeks to stay the operation of this order.

However, considering the observation made by this Court,

prayer is declined.

SD/-

(DR. A. P. THAKER, J) T. J. Bharwad