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1994 DIGILAW 23 (GUJ)

B. H. PAREKH v. DEPUTY COLLECTOR

1994-01-27

A.N.DIVECHA

body1994
A. N. DIVECHA, J. ( 1 ) THE order passed by the Competent Authority at Rajkot (respondent No. 1 herein) on 1/12/1983 in ULC Case No. 2360 as affirmed in appeal by the order passed by the Urban Land Tribunal at Ahmedabad (the Appellate Authority for convenience) on 18/09/1987 in Appeal No. Rajkot-61 of 1984 is under challenge in this petition under Article 226 of the Constitution of India. By his impugned order respondent No. 1 came to the conclusion that the holding of the petitioner was in excess of the ceiling unit by 1234. 32 square metres and ordered preparation of the final statement in that regard under Section 9 of the Urban Land (Ceiling and Regulation) Act 1976 (the Act for brief ). ( 2 ) THE facts giving rise to this petition move in a narrow compass. The petitioner had his house situated in Mill Para Rajkot admeasuring 224. 32 square metres. His wife had some four parcels of land in all admeasuring 2500 square metres in Rajkot. She breathed her last on 18/10/1975 Prior to her death she had executed one testamentay document on 10/05/1975 bequeathing all her properties including the aforesaid four parcels of land to her husband and her three married sons practically in equal share. It may be mentioned at this stage that each plot of land left behind by the deceased was admeasuring nearly 750 square metres. On coming into force of the Act the petitioner filed his statement under Section 6 (1) of the Act disclosing his properties to be the aforesaid house property and his share in his deceased wifes property being one plot admeasuring 745 square metres. The proceeding thereupon came to be registered as ULC case No. 2360 Pursuant thereto a draft statement was prepared and served to the petitioner as provided in the relevant provisions contained in Section 8 of the Act. The petitioner submitted his objection thereto. It appears that the petitioner produced in support of his case that he received his share in his wifes property one judgment delivered by the Probate Court granting a probate in respect of her Will executed on 10/05/1975. After hearing the arguments by his order passed on 1/12/1983 in the aforesaid proceeding respondent No. 1 came to the conclusion that the petitioners holding was in excess of the ceiling area by 1234. 32 square metres. After hearing the arguments by his order passed on 1/12/1983 in the aforesaid proceeding respondent No. 1 came to the conclusion that the petitioners holding was in excess of the ceiling area by 1234. 32 square metres. Its copy is at Annexure C to this petition. The aggrieved petitioner carried the matter in appeal before the Appellate Authority by means of his Appeal No. Rajkot-61 of 1984 A copy of the Memo of Appeal is at Annexure F to this petition. By his order passed on 18/09/1987 in the aforesaid appeal the Appellate Authority dismissed it. Its copy is at Annexure G to this petition. The aggrieved petitioner has thereupon moved this Court under Article 226 of the Constitution of India for questioning the correctness of the impugned order at Annexure C to this petition as affirmed in appeal by the appellate order at Annexure G to this petition. ( 3 ) RESPONDENT No. 1 did not accept the case of the petitioner about his having inherited his share of plot from his wife under the testamentary document only on the ground that its probate was obtained on 4/05/1979. Respondent No. I therefore treated the property belonging to the petitioners wife to be that of her husband and accordingly calculated the excess property in his hand. Besides the Competent Authority also took into consideration the residential house which was admittedly constructed prior to coming into force of the Act. The Appellate Authority in appeal doubted whether the property belonging to the wife was in fact her property as it was purchased in her name sometime in 1968. Even after reading the document wherein it was treated as her streedhan the conclusion of the Appellate Authority was to the effect that it was not free from doubt that the petitioner had purchased the aforesaid land property in his wifes name from his own funds. Thereupon the Appellate Authority considered the aforesaid parcels of land in all admeasuring 2500 square metres to be the petitioners property for the purposes of the Act. ( 4 ) AS rightly submitted by Shri Shah for the petitioner both the authorities have clearly erred in law in deciding the case before them. Respondent No. 1 has remained oblivious to the fact that a judgment of the Probate Court is always judgment in rem. ( 4 ) AS rightly submitted by Shri Shah for the petitioner both the authorities have clearly erred in law in deciding the case before them. Respondent No. 1 has remained oblivious to the fact that a judgment of the Probate Court is always judgment in rem. If the Probate Court grants a probate in respect of a testamentary document it would mean that the genuineness of the testamentary document is accepted in toto and it means the whole world. It is a settled principle of law relating to testamentary documents that a Will operates from the death of the testator or the testatrix as the case may be. The undisputed fact-situation emerging from the record is to the effect that the petitioners wife breathed her last on 18/10/1975. Prior to her death she had executed her Will on 10/05/1975 That testamentary document of hers would operate from the date of her death. The judgment of the Probate Court would merely accept the genuineness of the testamentary document and that judgment would also recognise the validity of the Will and its operation from the date of the death of the testator in the present case. Simply because the Probate Court has granted its probate in 1979 is no ground to come to the conclusion that the testamentary document has come into operation only after the coming into force of the Act. That conclusion can never be sustained in law even for a moment. ( 5 ) THE Appellate Authority was not required to go into the nature of the holding of the deceased wife of the petitioner. A copy of the testamentary document is at Annexure A to this petition. Her properties therein are described to be her own properties as her streedhan. The genuineness of the Will at Annexure A to this petition has been accepted by the Probate Court by granting its probates. It is treated to be a valid testamentary document. In that view of the matter the statement about the nature of her holding has also to be accepted as correct. Any expression of doubt as to the nature of her holding would tantamount to doubting the correctness of the judgment of the Probate Court. It is treated to be a valid testamentary document. In that view of the matter the statement about the nature of her holding has also to be accepted as correct. Any expression of doubt as to the nature of her holding would tantamount to doubting the correctness of the judgment of the Probate Court. It would not be open to the Appellate Authority to doubt the correctness of any judgment given by any Probate Court in exercise of the Appellate Authoritys appellate powers under Section 33 of the Act. No appellate authority under the act can be permitted to sit in appeal over any judgment rendered by the Probate Court. With respect the Appellate Authority has remained oblivious to this first principle of law. He has exceeded his authority in doubting the nature of the holding of the wife of the petitioner with respect to the aforesaid parcels of land. In that view of the matter the appellate order at Annexure C to this petition also cannot be sustained in law for a moment. ( 6 ) ONCE the probate in respect of the Will at Annexure A to this petition is granted by the Probate Court the Will operates from the date of the death of the deceased. It is an admitted position on record that she breathed her last before coming into force of the Act. The heirs of the deceased had therefore acquired their interest in the properties left behind by the deceased as per their share mentioned therein. The petitioners share of his immovable property therein was a parcel of land admeasuring 745 square metres. His residential house was admittedly a constructed property prior to coming into force of the Act and it could not have been included for the purposes of the Act in view of the binding ruling of the Supreme Court in the case of Smt. Meera Gupta v. State of West Bengal and Others reported in AIR 1992 Supreme Court 1567 as it would fall outside the preview of the definition of vacant land contained in Section 2 of the Act. Since no other property is found mentioned as belonging to the petitioner and since the land property admeasuring 745 metres is very much within the ceiling limit prescribed for the city of Rajkot under the Act there is no escape from the conclusion that the petitioners holding was not in excess of the ceiling limit thereunder. ( 7 ) IN the result the impugned order passed by the Competent Authority at Rajkot on 1/12/1983 in ULC Case No. 2360 at Annexure C to this petition as affirmed in appeal by the appellate order passed by the Urban Land Ceiling Tribunal at Ahmedabad on 18/09/1987 in Appeal No. Rajkot- 61 of 1984 at Annexure G to this petition is quashed and set aside. It is hereby declared that the petitioners holding was not in excess of the ceiling limit. Rule is accordingly made absolute with no order as to costs. .