2017 Supreme(Guj) 1611
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. Pardiwala, J.
Nayanaben Firozkhan Pathan @ Nasimbanu Firozkhan Pathan – Petitioner
Vs.
Patel Shantaben Bhikhabhai & Ors. – Respondents
Special Civil Application No. 15825 of 2017
Decided On : 26-09-2017
For the Petitioner:Mr. Dhruv K. Dave, Advocate
For the Respondents:Mr. Utkarsh Sharma, AGP., Mr. Parthiv B. Shah, Advocate
Headnote:Hindu Succession Act, 1956 (30 of 1956) - Sections 2(1)(a), 2(3), 4 & 26 - Caste Disabilities Removal Act, 1850 (21 of 1850) - S. 1 – This petition is filed seeking quash of orders by S.S.R.D. and collector – as per the facts of the case applicant get married to a Muslim guy and embraced Islam – court while quashing the orders by S.S.R.D. and collector held that after converting from Hindu to Muslim religion right to inheritance does not abandoned under Hindu Succession Act.
J.B. PARDIWALA, J.
1. As a neat question of law is raised in this petition, the matter is taken up, with the consent of the learned counsel appearing for the respective parties, for final disposal at the admission stage itself.
2. This petition although titled as one under Article 226 of the Constitution of India, yet, in substance, is a petition under Article 227 of the Constitution of India.
3. By this application under Article 227 of the Constitution of India, the applicant calls in question the legality and validity of the order dated 22nd March 2017 passed by the SSRD at Ahmedabad, by which the SSRD rejected the revision application filed by the applicant herein, thereby affirming the order of the Collector, Vadodara, dated 29th November 2011.
4. The facts of this case may be summarised as under:
The applicant herein took birth as a Hindu. There is no dispute in this regard. The dispute between the parties pertains to the parcels of land numerated below:
Village
Block No.
Area [H-R-A]
Type
Vemali
52/8
0.33.39
2.50 Rs./Ps.
Vemali
54/8
0.31.36
2.25 Rs./Ps.
Vemali
107.B/8
0.04.05
0.25 Rs./Ps.
Vemali
191/8
1.89.19
16.18 Rs./Ps.
5. The lands referred to above are the ancestral properties. The applicant herein happens to be the sister of the respondent no. 1 and the respondent no. 2. They all are children of one Bhikhabhai Patel. Bhikhabhai Patel passed away on 12th October 2004. On his demise, the names of the respondent nos. 1 and 2 came to be entered in the record of rights by succession vide entry no. 1502. At that point of time, the name of the applicant herein was not entered along with her brother and sister.
6. It appears that the applicant, having learnt about the mutation of entry no. 1502 in the record of rights, filed an affidavit dated 13th December 2007 and produced it before the authority concerned for the purpose of getting her name also mutated in the revenue record. This led to the mutation of entry no. 1668 dated 19th December 2007. This entry no. 1668 came to be later certified. The private respondents herein questioned the mutation of revenue entry no. 1668 before the Deputy Collector, Vadodara, by filing an R.T.S Appeal No. 137 of 2008. This entry came to be challenged substantially on the ground that the applicant herein although Hindu by birth, but later having married to a Muslim and having embraced Islam, she would ceased to be a Hindu and, therefore, the Hindu Succession Act would not apply in her case.
7. The appeal filed by the private responds before the Deputy Collector came to be dismissed vide order dated 16th September 2009. The private respondents, being dissatisfied with the order passed by the Deputy Collector, preferred a revision application before the Collector. The Collector accepted the argument of the private respondents and allowed the revision application. The disputed entry no. 1668 came to be cancelled. The applicant herein, being dissatisfied with the order passed by the Collector, preferred a revision application before the SSRD and the SSRD, by its impugned order, rejected the revision application and thought fit to affirm the order passed by the Collector.
8. Being dissatisfied with the orders passed by the SSRD and the Collector, the applicant is here before this Court with this application under Article 227 of the Constitution of India.
9. The Collector, while allowing the appeal filed by the private respondents, held as under:
“On carefully examining the case-papers of the lower court and the submissions made by the parties, it appears that the lands situated at Mouje Vemali, Taluka Vadodara, bearing Survey Nos. 52/8, 54 8, 107.B/8, 191/8 are the ancestral lands owned by late Shri Bhikhabhai Ranchhodbhai. On his demise, an entry bearing no. 1502 came to be entered on 12.4.2004, which is also certified. The present opponent - Nayanaben ali