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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
V.M. PANCHOLI, J.
Shashiben - Appellant
Versus
State of Gujarat - Respondent
R/Special Civil Application No. 8000 of 2019
Decided On : 18-10-2019
Guardian & Wards Acts, 1890 – Section 29 –Articles 226 and 227 – Constitution of India –Land purchased by petitioners from owners of subject land by registered sale deed, which executed mutation entry posted in revenue record grievance of petitioner is that r, Jalalpore did not certify said entry on ground that one of co-owners, Joban Patel was a minor and permission of competent court not obtained to sell his share and, sale deed not executed in accordance with law, petitioners, filed challenging order passed by Mamlatdar rejected said Appeal vide order petitioners, filed Revision Application before the Collector, pendency of Revision Application, the said Joban Patel filed an affidavit in support of petitioners stating that land sold by his family members including his father and his father had executed sale deed on his behalf as his natural guardian and said sale deed is also acceptable to him, also stated that he is not inclined to challenge sale deed executed in favour of petitioners, fact of given consent by said Joban Shashikant Patel, the Collector rejected the Revision Application filed by the petitioners. petitioners, filed Revision Application before respondent-SSRD and respondent-SSRD has also rejected Revision Application, present petition is filed – Held, Eldest male member in family acted as Karta in executing sale and joined with him two widows for themselves and as guardians of minor members of joint Hindu family, as supporting executants, that act by itself is not indicative of minors having divided interest in joint Hindu family property commencing before or at time of sale, in this view of matter, section 8 of Act can be of no avail to appellant's claim to nullify sale ,when sale deed executed by Jagubhai Patel himself as owner and other family members also executed sale deed as co-owners and further when Patel executed sale deed as natural guardian of minor, Joban Patel, permission of concerned court is not required and, respondent authorities committed an error while cancelling mutation entry in question – Petition allowed. (Para 6, 11, 12)
Facts of the case:
Land purchased by petitioners from owners of subject land by registered sale deed, which executed mutation entry posted in revenue record grievance of petitioner is that r, did not certify said entry on ground that one of co-owners, Joban Patel was a minor and permission of competent court not obtained to sell his share and, sale deed not executed in accordance with law, petitioners, filed challenging order passed by Mamlatdar rejected said Appeal vide order petitioners, filed Revision Application before the Collector, pendency of Revision Application, the said Joban Patel filed an affidavit in support of petitioners stating that land sold by his family members including his father and his father had executed sale deed on his behalf as his natural guardian and said sale deed is also acceptable to him, also stated that he is not inclined to challenge sale deed executed in favour of petitioners, fact of given consent by said Joban Shashikant Patel, the Collector rejected the Revision Application filed by the petitioners. petitioners, filed Revision Application before respondent-SSRD and respondent-SSRD has also rejected Revision Application, present petition is filed
Findings of the court:
Eldest male member in family acted as Karta in executing sale and joined with him two widows for themselves and as guardians of minor members of joint Hindu family, as supporting executants, that act by itself is not indicative of minors having divided interest in joint Hindu family property commencing before or at time of sale, in this view of matter, section 8 of Act can be of no avail to appellant's claim to nullify sale ,when sale deed executed by Jagubhai Patel himself as owner and other family members also executed sale deed as co-owners and further when Shashikant Jagubhai Patel executed sale deed as natural guardian of minor, Joban Shashikant Patel, permission of concerned court is not required and, respondent authorities committed an error while cancelling mutation entry in question
Result: Petition allowed.
JUDGMENT :
V.M. Pancholi, J.
1. Rule. Learned AGP Mr. K.M. Antani waives service of notice of rule for respondents.
2. This petition is filed under Articles 226 and 227 of the Constitution of India, in which, the petitioners have prayed for following reliefs,
B. That this Hon'ble Court be pleased to quash and set aside the order dated 24.12.2018 passed by Additional Secretary, Revenue Department (Appeals) Ahmedabad, rejecting Revision Application No. MVV/HKP/NVS/50/2018 and in turn confirming the order dated 21.06.2018 passed by Collector, Navsari in CH/RTS/Revision Case No. 135/17 in turn confirming the order dated 29.06.2017 passed by the Deputy Collector, Navsari rejecting RTS/Appeal case No. 262/15 in turn confirming the order passed by the In-charge Mamlatdar (Land), Jalalpore cancelling Revenue Entry No.2302 dated 09.07.2012 and be pleased to direct the Mamlatdar, (Land), Jalalpore to certify the revenue entry no. 2302 mutated with respect to land bearing Block No.1126 situated in village-Tavdi, Taluka-Jalalpore, District-Navsari.
C. Pending admission and/or final disposal of the present petition, this Hon'ble Court be pleased to stay the execution, operation and implementation of the Judgment and Order dated 24.12.2018 passed by the Additional Secretary, Revenue Department (Appeals) Ahmedabad, allowing Revision Application No. MVV/HKP/NVS/50/2018.
D. xxx xxx xxx.
E. xxx xxx xxx."
3. The facts of the present case are as under,
3.2. The subject land was purchased by the petitioners from the owners of the subject land by registered sale deed, which was executed on 20.08.2010. The mutation entry no. 2302 was posted in the revenue record on 17.04.2012. However, the grievance of the petitioner is that the Mamlatdar, Jalalpore did not certify the said entry on the ground that one of the co-owners, Joban Shashikant Patel was a minor and permission of the competent court was not obtained to sell his share and, therefore, the sale deed was not executed in accordance with law.
3.3. The petitioners, therefore, filed RTS Appeal before the Deputy Collector challenging the order passed by the Mamlatdar. The Deputy Collector rejected the said Appeal vide order dated 29.06.2017. The petitioners, therefore, filed Revision Application before the Collector. During the pendency of the Revision Application, the said Joban Shashikantbhai Patel filed an affidavit in support of the petitioners stating that the land was sold by his family members including his father and his father had executed the sale deed on his behalf as his natural guardian and the said sale deed is also acceptable to him. It was also stated that he is not inclined to challenge the sale deed executed in favour of the petitioners. Despite the fact of given consent by the said Joban Shashikant Patel, the Collector rejected the Revision Application filed by the petitioners. The petitioners, therefore, filed Revision Application before the respondent-SSRD and the respondent-SSRD has also rejected the Revision Application. Therefore, the present petition is filed.
4. Learned advocate for the petitioners has assailed the impugned orders passed by the respondent authorities mainly on the ground that the respondent authori
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