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2024 DIGILAW 894 (GUJ)

Aslambhai Umarbhai Ghojaria v. State of Gujarat

2024-04-16

CHEEKATI MANAVENDRANATH ROY

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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: 4.1 Late Umar Jamal Ghojaria was the absolute owner of the immovable property bearing Plot No. 18 in an extent of 125.42 square meters situate at Palanpur in the State of Gujarat. He also owned other movable and immovable properties along with the aforesaid property situate both in the State of Gujarat and also in the State of Maharashtra. The petitioner herein and respondent no. 7 are his sons. He also got two daughters. One of the said two daughters predeceased him. 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. 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). 5. The material facts of the lis are not in dispute. 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). 5. The material facts of the lis are not in dispute. Admittedly, late Umar Jamal Ghojaria was the absolute owner of the immovable property i.e. Plot No. 18, which is a vacant site along with structure on it, situate at Village Gathaman, Taluka Palanpur. It is not disputed that it was his self acquired property. Similarly, admittedly both the petitioner and respondent no. 7 are his legal heirs being the sons of the deceased Umar Jamal Ghojaria. Although he had two daughters, one daughter predeceased him and the other daughter though alive is not contesting this petition. According to the petitioner, late Umar Jamal Ghojaria has executed his last Will dated 31.10.2008 bequeathing the aforesaid Plot No. 18 in his favour. After the death of Umar Jamal Ghojaria on 26.01.2011, the petitioner has submitted an application before the Talati to effect mutation in the concerned records by incorporating his name in respect of the aforesaid Plot No. 18. The Talati has ordered for mutation of the name of the petitioner on the basis of the said Will without ordering notice to the affected parties, who would be the other legal heirs of the deceased Umar Jamal Ghojaria i.e. respondent no. 7 herein, who is the other son of the Umar Jamal Ghojaria and his daughter by name Zainab, who is respondent no. 8 and to respondents no. 9 to 14, who are legal heirs of his deceased daughter. 6. The appeal preferred by respondent no. 7 before the Deputy Collector came to be rejected and thereafter, the Collector allowed the revision preferred by respondent no. 7 and he has set aside the mutation entry and the second revision preferred by the petitioner their against the same came to be dismissed by the impugned order by the Secretary (Revision). He has rejected the revision on the ground that to effect mutation on the basis of a Will that a probate is required and also on the grounds that no notice was given to respondent no. 7 by the Talati before ordering for mutation and as the execution of the Will itself was disputed by the respondent no. 7. 7. He has rejected the revision on the ground that to effect mutation on the basis of a Will that a probate is required and also on the grounds that no notice was given to respondent no. 7 by the Talati before ordering for mutation and as the execution of the Will itself was disputed by the respondent no. 7. 7. As regards the ground that probate is required to effect mutation in the revenue records is concerned, the impugned order cannot be sustained on that premise. Admittedly, the Will was executed by a Mohammedian by name Umar Jamal Ghojaria. Both the petitioner and respondent no. 7 and his sons are also Mohammedians. A combined reading of Section 57 and Clause (1) of Section 213 of the Indian Succession Act, 1925 (for short “the Act”) makes it manifest that probate of a Will is required only when the Will was executed by a Hindu, Buddhist, Sikh or Jaina. Clause 2 of Section 213 of the Act clearly mandates that Clause 1 of Section 213 of the Act is not applicable to a Will made by a Mohammedian or Indian Christians. It shall only apply to the Wills made by a Hindu, Buddhist, Sikh or Jaina. 8. The legal position in this regard has been also elaborately discussed and settled by the Apex Court in the case of Ravinder Nath Agarwal vs. Yogender Nath Agarwal and Others, (2021) 15 SCC 282 . At paragraph no. 38 of the judgment, the Supreme Court held as follows: “38. By virtue of Section 213(2)(i) read with Clauses (a) and (b) of Section 57 of the Indian Succession Act, the mandatory requirement to seek probate or letters of administration for establishing a right as executor or legatee under a Will, is applicable only to Wills made by Hindu, Buddhist, Sikh or Jaina within the local limits of the ordinary civil jurisdiction of certain High Courts and to Wills made outside those territories, to the extent they cover immovable property situate within those territories. Therefore, there is no prohibition for a person whose case falls outside the purview of these provisions, from producing, relying upon and claiming a right under a Will, in any proceeding instituted by others including the other legal heirs for partition or other reliefs.” 9. Therefore, there is no prohibition for a person whose case falls outside the purview of these provisions, from producing, relying upon and claiming a right under a Will, in any proceeding instituted by others including the other legal heirs for partition or other reliefs.” 9. When the constitutional validity of Section 213 of the Act is questioned on the ground of discrimination among various religions and regions, the Apex Court in the case of Clearance Pais and Others vs. Union of India, (2001) 4 SCC 325 upheld the constitutional validity of the said provision and held that the discrimination relating to religion and region in Section 213 of the Act is not based on religion, but on historical grounds. It is held that reasons for Section 213 of the Act being applicable to certain classes of persons only are not based on religion, but are based on historical reasons. Further held that the classification rule and the historical reasons may justify differential treatment of various geographical regions. 10. Therefore, as per the legal position enunciated in the aforesaid judgments of the Apex Court, the law is very clear that the mandate of requirement or grant of probate of a Will as contemplated under Section 213 of the Act is only applicable to the Wills executed by a Hindu, Buddhist, Sikh or Jaina and it is not applicable to the Wills executed by Mohammedian. 11. Therefore, as the alleged Will propounded by the petitioner dated 31.10.2008 was admittedly executed by a Mohammedian, grant of probate of the Will as required under Clause 1 of Section 213 of the Act is not required under law. Therefore, both the Collector and the Secretary (Revision) in the impugned order have committed a manifest error of law in holding that the Will said to have been executed by late Umar Jamal Ghojaria requires probate for effecting mutation in the concerned records. 12. However, the other two grounds on which he has set aside the order of the Talati, who has ordered to effect mutation in the concerned record on the basis of the said Will are legally sustainable. Admittedly, after the petitioner has submitted an application before the Talati to effect mutation in respect of Plot No. 18 by incorporating his name in the concerned record on the basis of the said Will, the Talati did not issue notice to respondent no. Admittedly, after the petitioner has submitted an application before the Talati to effect mutation in respect of Plot No. 18 by incorporating his name in the concerned record on the basis of the said Will, the Talati did not issue notice to respondent no. 7 and respondent no. 8, who are the son and daughter of late Umar Jamal Ghojaria being his other legal heirs. No notice was given to respondents no. 9 to 14 also. They being the affected parties, who in the usual course are entitled to a share in the said property by way of a succession are entitled to notice before ordering mutation in respect of the said immovable property on the basis of the said Will relied on by the petitioner. The principles of natural justice also require the Talati to issue notice to the affected parties before ordering for mutation. Therefore, the order of the Talati to effect mutation in respect of the said property in the concerned record was obviously passed in utter violation of principles of natural justice. The said order was passed behind the back of the affected parties, who are the legal heirs of late Umar Jamal Ghojaria. Therefore, the order is undoubtedly vitiated for passing it without notice to the affected parties and for violating the principles of natural justice. Therefore, the Collector and the Secretary (Revision) have rightly set aside the said order on the ground that it was passed without notice to the affected parties. 13. As regards the other ground that as the validity of the Will was disputed by respondent no. 7 and as the dispute relating to the said Will is pending before the competent civil court for adjudication that mutation cannot be ordered in respect of the said property pending adjudication of the said civil dispute by the competent civil court is concerned, learned advocate for the petitioner vehemently contended that when there is a registered Will that as per Section 135 (c) of the Land Revenue Code that the concerned authority has to first effect mutation on the basis of the said registered document and it should be subject to the result of the civil suit and the Collector and the Secretary (Revenue) erred in setting aside the mutation entry on that ground. In support of his submission, he relied on the judgment of the Apex Court rendered in the case of Suraj Bhan vs. Financial Commissioner, 2007 (6) SCC 186 . He has also relied on the judgments of this Court rendered in the case of Jaswantbhai Dahyabhai Patel vs. State of Gujarat, 2019 (1) LLJ 201 and another judgment of this High Court, which is an unreported judgment, rendered in the case of Sunil Jayantilal Jayaswal vs. State of Gujarat and Others decided on 26.03.2024. 14. The Apex Court in the case of the above Suraj Bhan held that when there is a Will and even when the validity and genuineness of the Will is questioned in the competent civil court that mutation has to be first effected on the basis of the said Will when it is applied and it should be subject to the result of the civil suit. Similar view was taken by this High Court in the case of Jaswantbhai Dahyabhai Patel and in the case of Sunil Jayantilal Jayaswal referred supra. So, relying on the purport of the said judgments, learned advocate for the petitioner would contend that the Collector and the Secretary (Revenue) grossly erred in setting aside the mutation entry by the impugned order on the ground that the civil dispute is pending before the competent civil Court. 15. Learned advocate for respondent no. 7 would contend that respondent no. 7 has filed a Civil Suit No. 102 of 2014 in the High Court of Bombay challenging the legal validity of the Will on the ground that it was a fake and forged Will and that an interim order was also passed in the said suit not to give any effect to the said Will and the said interim order is in force. So, he contends that when the validity of the Will is questioned by way of filing a suit and pending adjudication of the said suit and even before deciding the validity of the said Will that mutation cannot be ordered on the basis of the said Will. In support of his contention, he relied on the latest decision of the Apex Court in the case of Jitendra Singh vs. State of Madhya Pradesh, 2021 SCC Online SC 802, wherein it is held in paragraph no. 9 as follows: “9. In support of his contention, he relied on the latest decision of the Apex Court in the case of Jitendra Singh vs. State of Madhya Pradesh, 2021 SCC Online SC 802, wherein it is held in paragraph no. 9 as follows: “9. In view of the above settled proposition of law laid down by this Court, it cannot be said that the High Court has committed any error in setting aside the order passed by the revenue authorities directing to mutate the name of the petitioner herein in the revenue records on the basis of the alleged will dated 20.05.1998 and relegating the petitioner to approach the appropriate court to crystalise his rights on the basis of the alleged will dated 20.05.1998. We are in complete agreement with the view taken by the High Court.” 16. So, on the basis of the law laid down by the Apex Court in the above reported judgment, learned advocate for respondent no. 7 would contend that the order of the Collector and the Secretary (Revenue) in the impugned order of setting aside mutation entry on the ground that the civil dispute is pending before the competent court is perfectly sustainable under law. 17. Learned advocate for the petitioner sought to distinguish the judgment in the case of Jitendra Singh on the ground that it is not clear from the said judgment that whether the Will in question in the said case was a registered Will or not and Section 135 of the Gujarat Land Revenue Code was not discussed in the said judgment, which clearly indicates that when there is a registered document that mutation entry is to be first made and it should be subject to the result of the civil suit. 18. After perusing the aforesaid judgments cited at the bar by both the learned advocate for the petitioner and learned advocate for the respondent, considering the fact that admittedly the mutation entry was ordered by the Talati without giving notice to respondent nos. 7 and 8 to 14, who are admittedly the legal heirs of late Umar Jamal Ghojaria and as the said order was passed in utter violation of the principles of natural justice behind the back of the affected parties, this Court is of the considered view that the matter is to be remanded to the Talati for fresh consideration after giving notice to both the respondent nos. 7 and 8 to 14, who are the legal heirs of the original owner Umar Jamal Ghojaria of the said property and who are the affected parties and then hear all of them and pass appropriate orders according to law. Therefore, as the Court has now decided to remand the matter back to the Talati for fresh consideration to pass appropriate orders after complying with the principles of natural justice by giving notice to all affected parties and after hearing them, this Court is not expressing any opinion on the said contentions raised by both the parties on the basis of the above cited judgments and it is completely left open to both of them to raise the said contentions before the Talati, who has to take a final call on the said plea that may be raised by them by passing an appropriate order according to law. Therefore, whether a mutation entry can be ordered on the basis of a registered Will, even when the validity of the said Will is questioned before the competent civil court or not is completely left open to be considered by Talati while passing an order afresh after hearing both the parties. Both the parties are at liberty to raise their contentions before the Talati and cite the aforesaid judgments before him and the Talati has to consider the said plea and also the aforesaid judgments and also the law laid down in the aforesaid judgments and then decide according to law whether mutation can be ordered when the civil suit is pending relating to the validity of the said registered Will or not. 19. The Talati, who is respondent no. 6 shall issue notices to the petitioner and respondent nos. 7, 8 and 9 to 14 and then hear all the parties and then pass an appropriate order according to law as directed supra within a period of six months from the date of receipt of this order. 20. The Talati has to independently pass an order according to law without being influenced by any of the observations made by the Deputy Collector in the appeal and the Collector in the revision and the Secretary (Revenue) in second revision. 21. With the above observation and direction, this petition is disposed of. Direct service is permitted.