Gujarat High Court
Patel Natubhai Dhulabhai vs State Of Gujarat on 16 April, 2024
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/LPA/1311/2023 ORDER DATED: 16/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1311 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 18013 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
In R/LETTERS PATENT APPEAL NO. 1311 of 2023
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PATEL NATUBHAI DHULABHAI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR ASHOK V BHAVSAR(1968) for the Appellant(s) No. 1
MR KRUTIK PARIKH AGP for the Respondent(s) No.1,2,3,4,5
MR. NISHIT P GANDHI(6946) for the Respondent(s) No. 6
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 16/04/2024
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
1. Having heard the learned counsels appearing for the
parties at length and noticing that the learned Single Judge has
interfered in the order of remittal passed by the learned SSRD
dated 24.8.2017, relegating the matter for fresh consideration on
the issues raised by the legal heirs of the testator of the Will, we
are of the considered view that interference in the order of
learned SSRD by the learned Single Judge was not called for,
more so, when the findings returned by the learned SSRD for
relegating the matter for fresh consideration have not been
upturned. The only reason for allowing the writ petition by
setting aside the order passed by the learned SSRD affirming the
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orders passed by the Dy. Collector dated 16.12.2011 and
Collector dated 10.12.2012 noted in the judgment impugned is
that the defect of the title of the testator cannot be seen by the
learned SSRD. We find inherent fallacy in the findings returned
by the learned Single Judge to the above extent while permitting
for mutation of the name of one of the legal heirs of the testator
on the basis of a Will, genuineness of which was seriously
disputed by the other legal heirs of the testator.
2. We may note that this is one of the cases where Will was
got executed in favour of one of the legal heirs of the testator and
the objection is by other legal heirs and not outsiders. We may
further record that the nature of the right of the testator namely
father of the writ petitioner has not been correctly disclosed in
the writ petition. There is vague assertion in the writ petition
that the land in question was running in the name of the father
of the petitioner and private respondent namely, appellant
herein. The fact that the original petitioner and the private
respondent are sons of late Shri Dhulabhai Patel who was the
testator of the Will dated 30.4.2010 which is the base of
mutation of the name of the petitioner under orders passed by
the Dy. Collector and the Collector, is sufficient to reach at the
conclusion that an inquiry is required to be made into the
manner in which the Will was got executed.
3. We may further note that the original respondent -
appellant herein is, however, raising a dispute with regard to the
ownership of the testator to assail the validity of the Will dated
30.4.2010 on the premise that the Will was an invalid document
from the beginning. We may also note that since there is no
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clarity in the writ petition about the right of the testator to
execute the Will, there was no occasion for the learned Single
Judge to interfere in the order of remittal passed by the learned
SSRD.
4. At this juncture, the learned counsel appearing for the
original petitioner - private respondent herein would submit that
the respondent is agreeable for fresh consideration of the matter
and gave instructions to make this statement before the Court.
5. In view of the statement made by Mr. Nishit P. Gandhi, the
learned counsel appearing for the original petitioner -
respondent No.6 herein, we do not find any reason to enter into
the details of the controversy raised before us about the validity
of the order passed by the learned Single Judge affirming the
orders of mutation passed by the Dy. Collector and Collector.
6. In view of the above, while setting aside the judgment and
order dated 10.12.2021 passed by the learned Single Judge,
modifying the order dated 24.8.2017 passed by the learned
SSRD, we relegate the matter to the Mamlatdar, Chanasma for
fresh consideration, strictly in accordance with law. The
Mamlatdar, Chanasma shall ensure representation of all
contesting parties before it and shall pass a reasoned and
speaking order, strictly in accordance with law, dealing with the
mutation application filed by the original petitioner as also the
objections raised by the other parties, as expeditiously as
possible, preferably within a period of six weeks from the date of
receipt of copy of this order. It is further clarified that all the
contentions of the rival parties are kept open for consideration
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by the Mamlatdar, Chanasma without being influenced by any of
the observations made hereinabove.
Connected Civil Application for stay also stands disposed
of.
(SUNITA AGARWAL, CJ )
(ANIRUDDHA P. MAYEE, J.)
KAUSHIK D. CHAUHAN
