1. This petition, under Article 226 of the Constitution of India, is preferred against the order dated 31.01.2012 (08.02.2012), passed by the Additional Secretary (Appeals), Revenue Department, whereby the Revision Application filed by respondent No.1, has been allowed and the orders dated 03.08.2001 passed by the Mamlatdar, Thasra, (respondent No.3) 09.03.2005, passed by the Deputy Collector and 31.12.2005 passed by the Collector (respondent No.2), respectively, have been quashed and set aside.
2. The brief facts of the case emerging from the record are that Somabhai Chaturbhai, grandfather and predecessor-in-title of the petitioner, owned ancestral property. He had two sons viz. Dhoribhai Somabhai, father of the petitioner and Manibhai Somabhai, the uncle of the petitioner. The father of the petitioner passed away on 02.09.1999, leaving behind the petitioner and other three sons as heirs and legal representatives. The lands in question, bearing Survey Nos.243/2, 23, 32, 226, 248 and 1622, devolved upon the father and uncle of the petitioner. It is the case of the petitioner that a partition took place between his father and his uncle and the said lands were divided between them. According to the petitioner in respect of lands forming part of Survey Nos.23, 32, 226, 248 and 1622, the father of the petitioner executed a Will in favour of respondents Nos.4, 5 and 6 (brother of the petitioner). The grievance of the petitioner is that he had a right in the aforesaid lands, and the Will could not have been executed with regard to the same in favour of his brothers, against the interest of the petitioner. Mutation Entry No.2401 came to be recorded in the revenue record on 10.03.2000, on the basis of the Will. The petitioner lodged an objection against the certification of this entry before the Mamlatdar (respondent No.3), stating that the said entry could not have been certified and the names of only three sons of deceased Dhoribhai Somabhai (respondents Nos.4 to 6) could not have been entered, as the petitioner also has a right in the said property. By order dated 14.09.2001, the Mamlatdar directed the Talati to enter the names as per the Pedhinama (family tree). Against the aforestated order, respondent No.4 preferred R.T.S. Appeal No.36 of 2003 before the Deputy Collector, Nadiad which came to be rejected by order dated 14.03.2005. The Deputy Collector by order dated 14.03.2005 confirmed the order passed by the Mamlatdar. Against the aforesaid orders of the Deputy Collector, respondents Nos.4 to 6 filed R.T.S. Appeal No.10 of 2005 before the Collector under the provisions of Rule-108(6) of the Gujarat Land Revenue Rules, 1972. The Collector, by his order dated 13.12.2005, dismissed the appeal filed by the respondents Nos.4 to 6 and confirmed the orders of the Mamlatdar, Collector and Deputy Collector. Respondents Nos.4 to 6, therefore, preferred a Revision before the Additional Secretary (Appeals) against the orders passed by the Collector. The said Revision Application has been allowed by the impugned order dated 31.01.2012 (08.02.2012) giving rise to filing of the present petition.
3. Mr.N.K. Majmudar, learned advocate for the petitioner, has submitted that while passing the impugned order, the Additional Secretary has not taken into consideration the well-reasoned order of three revenue authorities, inasmuch as the land in question, being ancestral, ought to have been mutated in the name of the petitioner as well as respondents Nos.4 to 6 and not on the basis of the Will executed by the father of the petitioner. It is further submitted that the Mamlatdar has rightly rejected Entry No.2401 mutated on the basis of Will and the order passed by the Mamlatdar has rightly been confirmed by the Deputy Collector and the Collector on the ground that the petitioner has a right in the land in question. It is further submitted that the father of the petitioner could not have executed a Will only in favour of respondents Nos.4 and 6 in respect of ancestral property in which the petitioner has a share, being a member of joint Hindu family. A substantial error of law has been committed by the Additional Secretary (Appeals) while setting aside the order of the Revenue Authorities below by directing that Entry No.2401, which has been mutated on the basis of Will, be certified. On the basis of the above submissions, the learned advocate for the petitioner has prayed that the impugned order passed by the Additional Secretary (Appeals) be quashed and set aside and the petition allowed.
4. I have heard the learned advocate for the petitioner, perused the averments made in the petition, contents of the impugned order and other documents on record.
5. In the impugned order passed by the Additional Secretary (Appeals), the reasons stated for arriving at the conclusion that the disputed entry be certified, are that in respect of the land in question, Dhoribhai Somabhai (father of the petitioner) has executed a Will on 02.06.1999, in favour of respondents Nos.4 to 6, only. The Additional Secretary (Appeals) has observed that whether the Will is false or not, or whether the father of the petitioner could have executed the Will only in favour of certain legal heirs, while leaving out the petitioner, are matters that cannot be gone into, or decided by the Revenue Authorities. It is only the Competent Civil Court that can decide a challenge to the Will. It is stated that the Revenue Authorities are bound to give effect to registered Will, until and unless it is set aside. It has further been observed in the impugned order that it does not appear that the petitioner has challenged the Will before the Competent Court.
6. The learned advocate for the petitioner has drawn the attention of the Court to a copy of the plaint in Regular Civil Suit No.6 of 2004 instituted by the petitioner, for partition and declaration. A perusal of the plaint reveals that a prayer for a declaration has been made to the effect that the deceased- Dhoribhai Somabhai has not executed any Will and if any Will is purported to have been executed on 02.06.1999, the same should be declared null and void. It has been submitted by Mr.N.K. Majmudar, learned advocate, that the said suit is pending and there is a challenge to the Will before the Civil Court.
7. Having perused the contents of the impugned order, it cannot be said that the reasons advanced by the Additional Secretary (Appeals) for allowing the Revision Application filed by respondents Nos.4 to 6, are either illegal or erroneous. What has been stated in the impugned order is only that the challenge to the Will, if any, can only be decided by the Civil Court. It can transpire that the Additional Secretary (Appeals) was not informed regarding the institution and pendency of the Civil Suit, as is apparent from impugned order. However, having perused the plaint in Regular Civil Suit filed by the petitioner, which is on record, it is apparent that the Civil Court is seized of the matter. The suit is still pending, which lends further weightage to the reasons assigned by the Special Secretary (Appeals) in the impugned order.
8. In Jhaverbhai Savjibhai Patel through Power of Attorney Holder Ashok J. Patel Vs. Kanchaben Nathubhai Patel and others reported in 2005(3) GLR 2233, this Court has held that where a registered document is produced before the Revenue Authority, the authority must prima facie post an entry in the record of rights, leaving it to the other competent authorities to adjudicate upon the validity of the transaction contained in the deed.
9. Applying the principles enunciated in the above- quoted judgment to the facts of the present case, it is an admitted fact that the Will executed by the father of the petitioner is a registered one. The Revenue Authorities are, therefore, bound to post an entry in accordance with Will in the revenue record. Ultimately, the final decision of the Civil Court would prevail and the parties would be bound by the decision by the Civil Court that may be taken in respect of the Will. It is a settled position of law that mutation entries in the revenue record do not confer title, but are mutated for fiscal purposes. The reasons recorded by the Additional Secretary (Appeals) in the impugned order do not suffer from any legal infirmity. The Additional Secretary (Appeals) has rightly stated in the impugned order that the challenge to the Will would depend upon the final decision of the Civil Court. The only aspect that needs to be recorded is that the entry would be subject to the final decision in the Civil Suit.
10. As there is no merit in the petition, it stands rejected, subject to the direction that that an endorsement be made in the revenue record to the effect the disputed entry would be subject to the final decision of the Civil Court in respect of the Will.
Direct Service of this order, is permitted.
(Smt. Abhilasha Kumari, J.)
rakesh/