[Cites 3, Cited by 0]

Gujarat High Court

Hareshbhai Keshubhai Ramani vs State Of Gujarat on 3 December, 2025

Author: Vaibhavi D. Nanavati

Bench: Vaibhavi D. Nanavati

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                            C/SCA/750/2019                                  ORDER DATED: 03/12/2025

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                               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                 R/SPECIAL CIVIL APPLICATION NO. 750 of 2019

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                                             HARESHBHAI KESHUBHAI RAMANI
                                                         Versus
                                                STATE OF GUJARAT & ORS.
                     ==============================================================
                     Appearance:
                     DHARMESH D NANAVATY(2396) for the Petitioner(s) No. 1
                     MR ASIT B JOSHI(2567) for the Petitioner(s) No. 1
                     MS DEVANSHIBA RANA, AGP for the Respondent(s) No. 1,2,3,4
                     NOTICE SERVED BY DS for the Respondent(s) No. 1,5
                     ==============================================================

                       CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                                                      Date : 03/12/2025

                                                          ORAL ORDER

1. Rule, returnable forthwith. Learned AGP waives service of notice

of Rule for and on behalf of the respondents.

2. Heard Mr. Asit B. Joshi, learned advocate appearing for the

petitioner and Ms. Devanshiba Rana, learned AGP appearing for the

respondents.

3. By way of the present petition, the petitioner herein challenges

the impugned order dated 19.10.2018 passed by respondent no. 1 in

Revision Application No. 20/2018 wherein, respondent no. 1 has

rejected the Revision of the petitioner and has confirmed the order

passed by respondent no. 2.








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4. Brief facts leading to the filing of the present petition are as

follows:

4.1. It is submitted that an Agricultural land bearing Survey. No.

510, admeasuring 13A-26G was purchased by the mother of the

Petitioner i.e. Hiraben Keshavji Ramani in her personal capacity vide

registered sale deed bearing no. 3026 dated 10.09.1975 from the

original land owner Naran Gokal a resident of Kherdi village upon

payment of sale consideration. A copy of sale deed executed in favour

of the mother of the petitioner, in respect of subject land, is at

Annexure-B to this petition.

4.2. That Hiraben had six daughters and two son including

petitioner, wherein, all six daughters are married. It is submitted that

Hiraben in her last days was residing with the petitioner who was

taking care of the mother. That Hiraben executed a notarized will

dated 22.05.2013 for her various properties including self acquired

Agricultural land bearing Survey No. 510/p3 admeasuring 1H-41A-64

sq. mtr. situated at Village: Kherdi, Taluka: Rajkot, District: Rajkot

(herein after referred to as the subject land) in favour of the petitioner.

4.3. The petitioner therefore, on the basis of Will submitted an

application to mutate his name in respect of subject land. It appears

that notice under Section 135D of the Bombay Land Revenue Code,

1879 (for short, "the Code"), came to be issued to all the legal heirs of

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the deceased Hiraben, wherein, no objection was lodged from any of

the legal heirs. Therefore, Entry No. 6400 dated 23.07.2013 came to

be mutated in favour of the petitioner in the records of rights of the

subject land.

4.4. Circle Officer, vide order dated 03.10.2013 rejected the revenue

Entry No. 6400 on the ground that affidavit of consent of all the legal

heirs and probate of Will is not produced. Being aggrieved by the order

of Circle Officer, petitioner approached Dy. Collector, Rajkot - 2, by

way of Appeal Under Rule 108 (5) of the Gujarat land Revenue Rules,

1972 being Appeal Case No. 59 /2013, wherein, Dy. Collector, Rajkot

2, vide order dated 15.09.2014 was pleased to reject the Appeal of the

petitioner.

4.5. The petitioner being aggrieved by the order dated 15.09.2014

preferred Revision application no. 79 /2014 before Collector, Rajkot

wherein, vide order dated 04.05.2018, Revision of the petitioner was

rejected by the authority.

4.6. Being aggrieved by the order of Collector, Rajkot, petitioner

approached respondent no. 1 by way of Revision Application which

came to be rejected vide order dated 19.10.2018 by the respondent no.

1, without assigning the independent findings and without giving any

reasons.








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5. Mr. Asit B. Joshi, learned advocate submits that the impugned

orders are required to be interfered with, mainly on the ground that

the petitioner's mother purchased the land in question by way of a

registered sale deed on 10.09.1975 and in turn, made a Will which is

also produced on record. The petitioner herein had approached the

Circle Officer mutating the entry pursuant to the Will in the name of

the petitioner, however, the competent authorities erred in declining to

certify the Entry No. 6400 dated 23.07.2013 on the ground that the

legal heirs of deceased Hiraben were not served with the 135D of the

Code, notice and the copy of the probate was not produced. It is

submitted that such reasoning are contrary to the settled position of

law.

5.1. It is submitted that it was self-acquired property of the

petitioner's mother and it was open for her to bequeath the same in

favour of the petitioner and no objections are raised by any of the legal

heirs. Further, reliance is placed on ratio laid down in 2007 (1) GLR

277 in case of Minaxiben Shashikantbhai Patel Versus District

Collector, Gandhinagar and 2006 (3) GLR 2455 in case of

Chhimiben Wd/o Hiraben Gopalbhai Versus State of Gujarat

wherein it is held that there was no requirement of the probate.

Placing reliance on the aforesaid decisions, it is also submitted that

whether the mandatory procedure is followed or not.








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                     6.       Ms.     Devanshiba      Rana,      learned    AGP     submitted         that     no

interference is called for in the impugned order passed by the

competent authority. It is submitted that in absence of notice issued

to the other legal heirs under Section 135D of the Code and an order

of probate such entry was rightly declined to be mutated in the entry

No. 6400 was rightly declined to be certified in the revenue record.

7. Having heard the learned advocates appearing for the respective

parties, it is not in dispute that the petitioner is a beneficiary of the

Will by his mother Hiraben. The said Will is produced on record at

page 24. The petitioner herein approached the competent authority for

certifying the Entry No. 6400 which came to be mutated in the

revenue record on 23.07.2013, however, the Circle Officer declined to

certify the mutation entry on the ground that the petitioner failed to

produce the consent affidavit of other legal heirs and the probate of a

Will.

8. On perusal of the record while the petitioner preferred Revision

Case No. 79 of 2014 before the Collector, it was categorically stated by

the petitioner herein that the aforesaid is not a requirement under the

law, that there is no requirement of the probate of a Will and consent

affidavit of legal heirs. It is also required to be noted that the

respondent - Collector has arrived at an erroneous finding of fact that

the property which was bequeathed to the petitioner was of heir-ship.








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There is nothing on record to show that either of the properties that

are bequeathed to the petitioner by way of Will are properties through

heir-ship. Even otherwise, the mutation entry pursuant to the Will in

favour of the petitioner was required to be certified by the respondent-

authorities without raising such objections as that they are contrary

to the well settled principles of law.

9. At this stage it is apposite to refer to the judgment passed in

the case of Minaxiben Shashikantbhai Patel Versus District

Collector, Gandhinagar in 2006 (0) AIJEL-HC 217150 wherein

paragraphs no. 7 to 11 which reads thus:

"7. At this stage, it would be worthwhile to extract certain observations of the Apex Court in the case of Clarence Pais and Ors. Vis. Union of India, AIR 2001 SC 1151 wherein while considering the constitutional validity of the provisions of Sec. 213 vis-a-vis Sec. 57 of the Indian Succession Act at para 6, it has been observed by the Apex Court inter alia as under:

"A combined reading of Sec. 213 and 57 of the Act would show that where the parties to the will are Hindus or the properties in dispute are not in territories falling u/s. 57(a) and

(b), sub-sec. (2) of Sec. 213 of the Act applies and sub-sec. (1) has no application. As a consequence, a probate will not be required to be obtained by a Hindu in respect of a will made outside those territories or regarding the immovable properties situate outside those territories." (emphasis supplied.)

8. The aforesaid position of law is settled by the highest Court of the country and therefore, no further discussion may be

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required.

9. If the facts of the present case are considered in light of the above referred legal position, it cannot be disputed that the property is situated at Gandhinagar and is outside the territories of the original civil jurisdiction of the High Court of Bombay and the property is even otherwise is situated in Gujarat State, which is outside the original civil jurisdiction of the High Court of Bombay or Madras or Calcutta. Therefore, even without probate, the rights acquired by the executor or legatee of the Will can be established before the Court or before any other authority which in the present case is revenue authority.

10. 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.

11. In the result, the petition succeeds. The impugned communication made by the District Collector not to proceed with the mutation without their being any probate of the Will in question executed by the deceased Chandubhai Jivabhai Patel is quashed and set aside. Consequently, the District Collector shall be required to consider the u/s. 135D of the Bombay Land Revenue Code and if the rights pursuant to the Will are

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established before him, the matter for entering mutation based on the Will after following the procedure as may be required, if not followed, necessary mutation shall be recorded in the revenue record in favour of the petitioner as may be permissible in law."

9.1. It is also apposite to refer to the judgment passed in case of

Chhimiben Wd/o Hiraben Gopalbhai Versus State of Gujarat in

2006 (3) GLR 2455 in paragraph no. 4 which reads thus:

"4. 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 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 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

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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 Vs. Kanchaben Nathubhai Patel & 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 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."

10. Considering the aforesaid position of law as referred to herein-

above, it is well-settled principle of law that the entry in the revenue

record are for fiscal purposes. The revenue authorities are required to

mutate the entry pursuant to the Will without going into the aspect

whether the mandatory procedure is followed or not, whether the Will

is genuine or not. The same would be subject matter of separate

proceedings. In absence of any prohibitory order from the competent

Civil Court and in absence of the Will having been challenged, the

respondent authority is required to mutate the entry pursuant to the

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