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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CHEEKATI MANAVENDRANATH ROY, J.
Aslambhai Umarbhai Ghojaria – Petitioner
Versus
State of Gujarat and Others – Respondents
Special Civil Application No. 4454 of 2017
Decided On : 16-04-2024
Article 226 - Legal Validity of Mutation Entry - Indian Succession Act, 1925, Section 213, Section 57 - The court discussed the legal validity of a mutation entry based on a registered Will and the requirement of probate under Section 213 of the Indian Succession Act, 1925. The court highlighted the interpretation of Section 213 and Section 57, emphasizing that probate is required only for Wills made by Hindu, Buddhist, Sikh, or Jaina, and not for Wills made by Mohammedians or Indian Christians. The court also referenced relevant case law to support its interpretation and emphasized the principles of natural justice in mutation proceedings.
Fact of the Case:
The petitioner sought to challenge the legal validity of a mutation entry made on the basis of a registered Will, which was set aside by the Collector and Secretary (Revenue) due to the requirement of probate and lack of notice to affected parties. The court found that the mutation entry was made without notice to the affected parties and in violation of principles of natural justice.
Finding of the Court:
The court found that the requirement of probate under Section 213 of the Indian Succession Act, 1925 did not apply to the registered Will in question, as it was executed by a Mohammedian. However, the court upheld the setting aside of the mutation entry due to the lack of notice to affected parties and the pending civil dispute over the validity of the Will.
Issues: The issues involved the legal validity of the mutation entry based on a registered Will, the requirement of probate under Section 213 of the Indian Succession Act, 1925, and the principles of natural justice in mutation proceedings.
Ratio Decidendi: The court held that probate is not required for Wills made by Mohammedians or Indian Christians under Section 213 of the Indian Succession Act, 1925. Additionally, the court emphasized the need for notice to affected parties and adherence to principles of natural justice in mutation proceedings.
Final Decision: The court disposed of the petition and directed the Talati to issue notices to all affected parties, hear their contentions, and pass an appropriate order according to law within six months, without being influenced by previous observations.
ORDER :
1. Invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, the petitioner seeks to challenge the legal validity of the impugned order dated 11.11.2016 passed by the Secretary (Revenue) in the second revision preferred by him whereby he has affirmed the order of the Collector dated 29.06.2015 setting aside the mutation entry made on the basis of a registered Will.
2. Heard learned advocate Mr. S.P. Majmudar for the petitioner, learned advocate Mr. Mayur Dhotre for respondent no. 7 and learned Assistant Government Pleader for respondent nos. 1 to 5.
3. Respondent nos. 6, 8 to 14 though served with notice, none appears for them. Therefore, this petition is not opposed by them. Only respondent no. 7, who is contesting this petition, opposed the same.
4. Factual matrix of the lis may briefly be stated as follows:
4.2 As per the case pleaded by the petitioner, Umar Jamal Ghojaria has initially executed a registered Will dated 28.12.2004 in respect of the aforesaid plot bequeathing the same in favour of the petitioner. Later on, he has executed another Will in supersession of the aforesaid Will, which is also a registered Will on 31.10.2008 whereby, it is stated that he has bequeathed the aforesaid plot and also the other immovable properties situated both in the State of Gujarat as well as in Mumbai in the State of Maharashtra in favour of the petitioner.
4.3 After execution of his alleged last Will dated 31.12.2008, he died on 26.01.2011. After his death, the petitioner has submitted an application before the Talati, Palanpur, District Banaskantha to mutate the name of the petitioner in respect of Plot No. 18 situated at Village Gathaman, Taluka Palanpur on the basis of the aforesaid registered Will dated 31.10.2008. Thereafter, the Talati ordered for mutation in the concerned record incorporating the name of the petitioner in respect of the said Plot No. 18, which is a vacant site with a structure on it.
4.4 After respondent no. 7, who is the other son Umar Jamal Ghojaria, came to know about the said mutation entry made in the concerned records, has preferred an appeal before the Deputy Collector questioning the said mutation entry. The Deputy Collector has rejected his appeal. Therefore, respondent no. 7 has preferred revision against the order of the Deputy Collector to the Collector (Revision). The Collector has allowed the revision and has set aside the said mutation entry on the ground that probate of Will is required to effect mutation on the basis of the Will relied on by the petitioner and also on the ground that no notice was given to respondent no. 7 before ordering for mutation and also on the ground that the execution of the Will itself is in dispute. Aggrieved by the said order, the petitioner has preferred a second revision, which is provided under law to the Secretary (Revision). He has rejected the said revision by the impugned order on the same ground that probate is required to effect mutation in the revenue record on the basis of the Will and also on the ground that the mutation was ordered without giving notice to respondent no. 7, who is an affected party and without hearing him and also on the ground that a civil dispute is involved in the matter as the validity of the Will is disputed by respondent no. 7.
4.5 Aggrieved thereby, the present petition under Article 226 of the Constitution of India is preferred challenging the legality and validity of the impugned order passed by the Secretary (Revision)
The main legal point established in the judgment is that probate is not required for Wills made by Mohammedians or Indian Christians under Section 213 of the Indian Succession Act, 1925, and that mut....
(1) Mutation – There is no bar for seeking mutation based on a Will – However, in a case of serious dispute regarding validity/genuineness of Will, appropriate course for parties would be to approach....
Mutation proceedings under the U.P. Land Revenue Act do not confer title, and jurisdiction to decide title issues lies solely with civil courts.
Un-probated Wills in ex-princely State areas can be used for mutation without requiring probate, as revenue authorities have jurisdiction in such matters unless disputes arise over the Will's genuine....
Probate is unnecessary for wills executed in specified districts, allowing mutation without disputing genuineness in revenue courts.
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