Gujarat High Court
Ajitsinh Dhirajsinh Desai vs Dariyaben Dhirajsinh Desai W/O ... on 24 September, 2024
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
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C/SCA/13493/2024 JUDGMENT DATED: 24/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13493 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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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 ?
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AJITSINH DHIRAJSINH DESAI & ORS.
Versus
DARIYABEN DHIRAJSINH DESAI W/O BHARATSINH BARAD & ORS.
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Appearance:
MR NACHIKET A DAVE(5308) for the Petitioner(s) No. 1,2,3
MR NIKUNJ KANARA, AGP for the Respondent(s) No. 13
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 24/09/2024
ORAL JUDGMENT
1. Heard learned Advocate Mr. Nachiket A. Dave for the petitioners
and learned AGP Mr. Nikunj Kanara for the respondent-State.
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2. By way of this petition, order passed by the learned SSRD dated
01.06.2024 in Revision Application No. 93 of 2019, confirming order
passed by the Collector in RTS Revision No. 162 of 2017, dated
05.01.2019 and order passed by the Deputy Collector in RTS Appeal No.
151 of 2016, dated 23.03.2017, are sought to be questioned.
3. It appears that the dispute is with regard to the land bearing Survey
No. 68 i.e. Re-survey No. 34 situated at village Pali, Taluka Kamrej,
District Surat, which was originally owned by one Dhirajsinh Gomanshin
who had expired on 29.07.2005. It appears that the said Dhirajsinh had
bequeathed the land in question vide a Will dated 06.02.1997 in favour of
his daughter namely Dariyaben Dhirajsinh Desai - respondent No.1
herein. It appears that the Will had been entered in the revenue record
vide mutation entry No. 2838 which was posted on 30.10.2015. It appears
that the petitioners had challenged the entry in question by filing RTS
Case No. 85 of 2015 before the Mamlatdar, Kamrej, who vide order dated
29.02.2016 had allowed the application preferred by the present
petitioners and whereas the mutation entry No. 2838 had been set aside. It
appears that the order passed by the Mamlatdar, Kamrej had been
challenged by the respondent No.1 herein by preferring RTS Appeal No.
151 of 2016 before the Deputy Collector, Kamrej, who, vide order dated
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23.03.2017, while setting aside the order passed by the Mamlatdar dated
29.02.2016, had allowed the appeal preferred by the respondent No.1
herein.
3.1 It further appears that the present petitioners had challenged the
order passed by the Deputy Collector by preferring RTS Revision Case
No. 162 of 2017 before the Collector, Surat and whereas vide order dated
05.01.2019, the Collector had rejected the said revision preferred by the
petitioners, resulting in the petitioners preferring the Revision
Application 93 of 2019 before the learned SSRD and the learned SSRD
vide the impugned order dated 01.06.2024 had declined to interfere in the
revision application, and it is under such circumstances, the present writ
petition is preferred challenging the orders passed by the learned SSRD,
Collector and the Deputy Collector.
4. Learned Advocate Mr. Dave for the petitioners would submit that
the respondent revenue authorities before mutating the Will dated
06.02.1997, in the revenue record were required to consider the
submissions made on behalf of the petitioners that the property in
question, was not a self acquired property of the deceased, for the
deceased to have bequeathed the property to his daughter. It is submitted
by the learned Advocate that only if the property in question was a self
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acquired property would the original testator be entitled to bequeath the
property to a person of his liking and whereas since the property in
question was an ancestral property, therefore, same should have been
devolved upon all the legal heirs of the deceased as per the normal rule of
succession. Learned Advocate would submit that this important aspect
not having been considered by the revenue authorities, interference of this
Court is warranted.
5. This petition is vehemently object to by learned AGP Mr. Kanara
for the respondent-State, who would submit that the revenue authorities
having not committed any error whatsoever, this Court may not interfere
in this writ petition.
6. At this stage, it also appears that the petitioners have preferred civil
suit being Regular Civil Suit No. 49 of 2023 and whereas the respondent
No. 1 has preferred civil suit being Regular Civil Suit No. 49 of 2019 and
both the civil suits are stated to be pending before the Civil Court,
Kathor.
7. Having heard the learned Counsels for the respective parties and
having perused the documents on record including the impugned orders,
to this Court, it would appear that the issue involved is in very narrow
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compass. The issue involved is whether it was open for the respondent
authorities to have gone into the aspect of whether the testator was
competent to bequeath the land or not and whether the revenue authorities
could have gone into the substance of the deed which was presented to
them for mutation.
8. At this stage, reference is being made to Section 135C of the
Gujarat Land Revenue Code. Section 135C, being relevant for the present
purpose is reproduced hereinblow for benefit.
"135C. Acquisition of rights to be reported. - Any person
acquiring the right on any land by succession,
survivorship, inheritance, partition, purchase, mortgage,
gift, [lease or Certificate of No Dues made under sub-
section (2) and (3) of Section 125L and section 133(2), or
otherwise] any right as holder, occupant, owner,
mortgagee, assignee of the rent thereof, shall make a
report of such acquisition of such right, either manually
or electronically, to the designated officer within the
period of three months from the date of such acquisition,
and the said designated officer shall at once, give a
written acknowledgment of the receipt of such report to
the person making it:
Provided that where the person acquiring the right is a
minor, or otherwise disqualified, his guardian or other
person, having charge of his property, shall make the
report to the designated officer:
Provided further that any person acquiring a right by
virtue of a registered document shall be exempted from
the obligation to report to the designated officer.
Explanation I. - The rights mentioned above include a
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mortgage without possession, but do not include an
easement or a charge not amounting to a mortgage of
the kind specified in section 100 of the Transfer of
Property Act, 1882 (IV of 1882).
Explanation II. - A person in whose favour a mortgage is
discharged or extinguished, or lease determines,
acquires a right within the meaning of this section."
8.1 A perusal of the said section inter alia reveals that a person who
has acquired right in a property, by any means as mentioned in the
section, should inform the same to the designated officer who shall give a
written acknowledgment and whereas thereafter, the right acquired would
be mutated in the revenue record. The crux of the issue, for which section
135C has been reproduced, is that while the revenue authorities are
required to mutate as regards any right acquired, the section or for that
matter no other provisions of the Land Revenue Code empowers the
authorities in question to verify the substance of the deed in question. To
elaborate, it is observed that the revenue authorities are required to mutate
the 'form' of the acquisition of right in question, whereas the revenue
authorities are not empowered to go into the 'substance' of the acquisition.
8.2 The above aspect could be appreciated if one considers that by
now it is a well settled position that revenue entries are for fiscal purpose
only and whereas they do not by themselves confer any right or title upon
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any person. Thus, revenue entries are only noting the form of the
acquisition and are not a constructive proof of the substance of the
acquisition.
9. To this Court, it would appear that the issues of whether the
testator was entitled to bequeath the land in question, more particularly
since according to the petitioners, the land was an ancestral property and
not a self acquired property etc., were all issues which could have been
agitated before a competent Civil Court and an appropriate declaration
could have been sought for. To this Court, it would clearly appear that the
said aspects were completely beyond the pale of the revenue authorities,
more particularly the revenue authorities being empowered only to
mutate the aspect of acquisition of a right in property and whereas, the
Code does not empower the authorities to verify whether the person who
was transacting was competent to transact or not, more particularly as in
the facts of the present case when it is undisputed that the testator in
question was the owner of the property in question.
10. Under such circumstances, to this Court, it would appear that the
issue of competency of the testator to bequeath the property in question
would have to be first decided by a Civil Court and whereas it is only
thereafter the effect of the order of the Civil Court, if the effect is in
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favour of the petitioners would result in an appropriate mutation in the
revenue record.
11. To this Court, it would appear that the above position being well
settled, would not require any further elaboration and whereas for this
reason, to this Court, it would appear that neither the learned SSRD nor
the Collector nor the Deputy Collector, as the case may be, have
committed any error whatsoever in rejecting the appeal/revision preferred
by the present petitioners. Under such circumstances, in the considered
opinion of this Court, the present petition being devoid of any merit, is
hereby disposed of as rejected.
12. It is clarified that the final outcome of the civil suits referred to
hereinabove shall govern the rights of the parties.
(NIKHIL S. KARIEL,J)
BDSONGARA
