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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
ANANT S. DAVE, BIREN VAISHNAV, JJ.
BHARATKUMAR KARSHANBHAI RAMI - Appellant
Versus
STATE OF GUJARAT - Respondent
R/LETTERS PATENT APPEAL NO. 831 of 2019 With CIVIL APPLICATION (FOR STAY) NO. 2 of 2018
Decided On : 10-04-2019
Letter Patent Appeal, Clause 15 -Indian Registration Act, 1906, Section 17 -Hindu Succession Act, 1925 -Sections 57 and 213 -Bombay Tenancy and Agricultural Lands Act, Sections 43, 84(c), 43 , 63 -Challenge in this appeal under Clause of the Letters Patent is to oral order dated rendered by learned Single Judge in Special Civil Application whereby the challenge to the order dated passed by the revisional authority –Additional Secretary Revenue Department Government in Revision Application came to be negative -Learned Single Judge noticed that writ petitioners and respondents were brothers and sisters -A translated version of the order dated passed by the revisional authority was produced in Paragraph-2 of the order passed in writ petition -Applicants and the respondents are brothers and sisters -The impugned order passed –Held, This is clear from para of the aforesaid decision wherein it has been observed that transfer connotes normally between two living person during a will takes effect after demise of the testator and transfer in that perspective becomes incongruous -Will is only a devolution of interest and cannot be said to be a transfer as restricted under the provisions of the Tenancy Act and when such mutation has taken place or devolution of interest in favour of legatee based on Will executed by Testator is there even breach of conditions imposed or restrictions prescribed under the provisions of Tenancy Act were held to be not violative -Considering the above and in the facts and circumstances of the case what is held and observed by learned Single Judge in Paragraph-6 of the judgment in the background of the fact that respondent also applied for probate on the strength of the Will but such proceedings were dismissed for default namely that no error of law can be said to have been committed by revisional authority in passing the order and that if the writ petitioners have anything to say with regard to genuineness of the Will or if they are asserting their own right title or interest on the land in question they need to file a civil suit before a competent Civil Court seeking declaration in that regard cannot be said to be erroneous – Appeal is dismissed.
Certainly. Based on the provided legal document, here are the key points:
The appeal concerns the validity of revenue entries based on a Will and the authority of revenue authorities to question the genuineness of such Will (!) (!) .
The revenue authorities initially doubted the authenticity of the Will due to suspicious circumstances surrounding its execution, especially since it was executed shortly before the testator’s death. However, the revisional authority reversed this view, affirming the Will’s legality and validity (!) .
The court emphasized that the revenue authorities do not have jurisdiction to decide on the legality or genuineness of a Will; such matters are within the purview of civil courts. If there are disputes regarding the Will’s genuineness, the appropriate remedy is to file a civil suit for declaration of rights, title, or interest (!) .
The order of the revenue authorities was challenged on the grounds that the Will was executed under suspicious circumstances, and the validity of the Will was questioned due to the circumstances of execution and the prior rejection of probate proceedings. Nonetheless, the court found that the revenue authorities correctly recognized that the Will, being notarized and attested, was legally valid and that the question of its genuineness should be settled in a civil court, not revenue proceedings (!) (!) .
The court noted that the Will was executed shortly before the testator’s death, but since it was duly notarized and registered, it was presumed valid unless challenged and proved otherwise in a civil court. The mere fact that probate proceedings were dismissed for default did not automatically invalidate the Will (!) (!) .
The court reaffirmed that mutation of land records based on a Will is for administrative and fiscal purposes and does not determine title or ownership rights. Any disputes regarding ownership or the validity of the Will must be resolved through civil litigation (!) (!) .
The appeal was dismissed, reaffirming the authority of civil courts to decide on the genuineness of the Will and the rights of the parties involved. The revenue authorities’ order was upheld, and the revenue entries based on the Will were restored (!) .
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ANANT S. DAVE, J.
1. The challenge in this appeal under Clause 15 of the Letters Patent is to oral order dated 22.10.2018 rendered by learned Single Judge in Special Civil Application No.15563/2013, whereby the challenge to the order dated 08.08.2013 passed by the revisional authority – the Additional Secretary (Appeals), Revenue Department, Government of Gujarat, in Revision Application No.51/2013, came to be negatived.
2. Learned Single Judge noticed that writ petitioners and respondents No.5 to 7 were brothers and sisters. A translated version of the order dated 08.08.2013 passed by the revisional authority was produced in Paragraph-2 of the order passed in writ petition, which reads as under :
“2. The writ-applicants and the respondents Nos. 5, 6 and 7 are brothers and sisters. The impugned order passed by the SSRD reads as under:
“(4) The revision application of the applicant, written submissions of the learned advocates for the parties and order of the Collector and case papers were carefully perused. The land bearing survey no. 96, situated at moje Bakratpur, Taluka Patan, is registered in the name of Mali Karshanbhai Mohanbhai, etc. Out of the aforesaid land, he gave 90% share to Rami Pravinkumar Karshanbhai i.e. applicant of this case and 10% share to Rami Geetaben Karshanbhai i.e. respondent no. 2 of this case by way of the Will. Therefore, entry no. 1029 was mutated in the record of the right in respect of the said Will on 05/08/2011. As objection application was received against the said entry, Mamlatdar, Patan, registered mutation entry no. 1029 in the dispute register and issued show-cause notice to the interested parties and heard their submissions. Accordingly, taking action as per rules, he has decided to cancel mutation entry no. 1029 vide his order no. RTS/Case No. 140/11 dated 18/01/2012. Being aggrieved by impugned order dated 18/01/2012 of Mamlatdar, Patan, the applicant Mr. Rami Pravinkumar Karshanbhai preferred appeal before the Deputy Collector under Rule 108(5) of Gujarat Land Revenue Rules, 1972. The Assistant Collector, Patan, has passed his order no. RTS/Case No. 37/12 dated 07/05/2012 rejecting appeal. Being aggrieved by order dated 07/05/2012 of Assistant Collector, Patan, applicant Mr. Rami Pravinkumar Karshanbhai filed revision petition before the Collector, Patan under Rule 108(6) of the Gujarat Land Revenue Rules, 1972. The Collector, Patan, has passed his impugned order rejecting revision petition. Being aggrieved by the impugned order dated 30/03/2013 of the Collector, Patan, applicant Mr. Pravinkumar Karshanbhai Rami has filed present revision petition under Rule 108(6-A) of the Gujarat Land Revenue Rules, 1972. Upon perusal of case papers of the lower Court and order of the Collector, it appears that the land bearing survey no. 96, account no. 279 in the village form no. 8/A, situated at moje Bakratpura, Taluka Patan was registered in the name of Mali Karshanbhai Mohanbhai, etc. He has executed the Will in the presence of two witnesses at sr. no. 860 before the Notary on 20/03/2011. As per the said Will, agricultural land bearing survey no. 715/P/1 admeasuring hec. 2-37-75 are and survey no. 102 admeasuring hec. 3-45-00 are, situated at moje Ved, Taluka Sami is self-acquired property of Karshanbhai Mohanbhai, who executed the Will. The said agricultural land has been given to the applicant Pravinkumar Karshanbhai and respondent Bharatbhai Karshanbhai on half sharing basis by way of the Will. The agricultural land bearing survey no. 96, admeasuring hec. 1- 70-05 are, situated at moje Bakratpura, Taluka Patan is self acquired property of the person, who executed the Will. Out of the said land, 90% agricultural land has been given to the applicant and 10% agricultural land has been given to Bharatbhai Karshanbhai by way of the Will. Moreover, the right of 82.69.07 sq.m. Of Tika No. 5/1, City Survey No. 294, Municipal Census No. 3/7/13 and 3/6/43 of both storeys and right of 6.44.75 sq.
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