IMPORTANT POINT
A registered Will executed by a tribal cannot be enforced without prior permission from the Collector under Section 73AA of the Land Revenue Code, and failure to obtain probate invalidates the claim.

JUDGMENT :

1. The present Second Appeal is directed against the judgment and order dated 25.11.2023 passed by the learned Additional District Judge, Narmada at Rajpipla in Regular Civil Appeal No.46/2021 as well as the judgment and order dated 30.10.2021 passed by the learned Principal Senior Civil Judge, Dediyapada in Regular Civil Suit No.7/2015.

2. The present Second Appeal has been preferred on following substantial questions of law,

“(A) Whether both the Ld. Lower Courts erred holding that Will is within meaning of transfer?

(B) Whether Section 73AA of the Land Revenue Code, apply to the registered Will by the deceased in favour of the inter family?

(C) Whether Will which was registered before Sub Registrar under the Registration Act, without challenging the validity of the same, whether implementation can be withheld?

(D) Whether Article 58 of the Limitation Act, would be applicable for declaratory suit on the basis of registered Will?

(E) Whether defendants are barred by rejudicata once the Special Civil Suit No.

125 of 1998 was filed by them and dismissed?

(F) Whether previous sanction under section 73AA of the Land Revenue Code, would be required when property bequeath by way of Will to family member only?

(G) Whether finding recorded by the Ld. Trial Court without any evidence on record and on irrelevant and inadmissible evidence?

(H) Whether both the Ld. Lower Courts have failed to consider the issue and record the findings without any evidence on record?

(I) Whether findings recorded by both the Ld. Lower Courts have are perverse and misled and misunderstood the evidence on record?”

3. Heard learned advocate, Mr. Vijay Nangesh for the appellants.

4. Learned advocate for the appellants submitted that the appellants herein are the original plaintiffs and the respondents herein are the original defendants in the suit being Regular Civil Suit No.7/2015 preferred by the appellants, therefore for the sake of convenience, hereinafter they shall be referred to as per their original status in the suit. Learned advocate submitted that the dispute pertains to the land bearing Survey Nos.1, 8, 15, 42/2 pk., 151 and 156 situated in Village : Nivalda, Taluka : Dediyapada, District : Narmada as also House Nos.237 and 238 (hereinafter referred to as “the suit properties” for short). Learned advocate submitted that the aforesaid suit was filed by the appellants inter alia praying for declaration that the plaintiffs be declared a absolute owner and occupier of the suit properties and pass an order of mutation of their name in the revenue record as also for deletion of the names of the original defendants from the revenue record and also sought permanent injunction against the original defendants restraining the original defendants and/or their agents, servants etc. from entering into the suit properties as also from interfering their possession. Learned advocate submitted that however without considering the facts of the case and evidence available on record, the learned Civil Court has dismissed the suit, against which, Regular Civil Appeal was preferred challenging the same, however, the said appeal has also been dismissed by the learned Appellate Court and, hence, the present Second Appeal has been preferred challenging both judgment and orders on the aforesaid substantial questions of law.

5. Learned advocate submitted that the original plaintiffs and the original defendants are siblings and the father of the original plaintiffs was the agriculturist and was the owner of the suit properties. Learned advocate submitted that the father of the original plaintiffs has executed a “Will” on 15.05.1997 during his lifetime and thereby bequeathed the suit properties and immediately within a period of two months from the date of execution of the said Will, the father of the plaintiffs passed away and after the sad demise of the deceased, the original defendants have mutated their names in the revenue record, therefore, the aforesaid suit was preferred,