Gujarat High Court
Arvindbhai Rasiklal Jani vs Anilaben Rasiklal Jani & 6 on 30 August, 2017
Author: R.Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/1364/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1364 of 2017
In
SPECIAL CIVIL APPLICATION NO. 11416 of 2017
With
CIVIL APPLICATION NO. 11133 of 2017
In
LETTERS PATENT APPEAL NO. 1364 of 2017
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ARVINDBHAI RASIKLAL JANI....Appellant(s)
Versus
ANILABEN RASIKLAL JANI & 6....Respondent(s)
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Appearance:
MR DHRUV K DAVE, ADVOCATE for the Appellant(s) No. 1
MR DM DEVNANI, AGP, ADVANCE COPY SERVED TO GP/PP for the
Respondent(s) No. 4
MR AB MUNSHI, CAVEATOR for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH
REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 30/08/2017
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY)
1. This Letters Patent Appeal under Clause 15 of the Letters Patent is filed by the original petitioner in Special Civil Application No.11416 of 2017, aggrieved by the order dated 19.06.2017 passed by the learned single Judge.
2. The aforesaid Special Civil Application was filed with the prayers, which read as under;
Page 1 of 6HC-NIC Page 1 of 6 Created On Sat Sep 09 08:38:44 IST 2017 C/LPA/1364/2017 ORDER "A. Your Lordships be pleased to issue a Writ of Mandamus or a writ in the nature of Mandamus or appropriate writ by an order, writ or direction quashing and setting aside an order on 13.04.2017 in Revision Application being MVV/HKP/NMD/4/2016 and thereby to allow the Revision Application and appropriate directions to the respondent no.4 to
7. B. Your Lordships be pleased to issue appropriate writ or writ of certiorari to quash and set aside the impugned order on 13.04.2017 by allowing the revision application of the petitioner in Revision Application being MVV/HKP/NMD/4/2016 with suitable directions to the respondent no.4 to 7.
C. Pending admission and final hearing of the present Special Civil Application, Your Lordships be pleased to stay the implementation, operation, enforcement and execution of the order on 13.04.2017 (10.04.2017) in Revision Application being MVV/HKP/NMD/4/2016 and further direct the Mamlatdar, Nandod, Narmada not to act in furtherance to pencil entry in form no.6 of land revenue records in Entry No.3849 and Entry No.3850 before the Mamlatdar, Nandod, Narmada;
D. To grant exparte adinterim relief in terms of Para 27(C), any other exparte interim relief in the interest of justice."
3. The learned single Judge dismissed the Special Civil Application by the impugned order.
4. The dispute between the parties is with regard to mutation Entry No.3504 mutated in the record of rights on 01.05.2013 in respect of the lands bearing Survey Nos.242, 288, 296, 490/a and 490/b situated at Village : Ori, Taluka : Nandod, District : Narmada. The Page 2 of 6 HC-NIC Page 2 of 6 Created On Sat Sep 09 08:38:44 IST 2017 C/LPA/1364/2017 ORDER original owner of the said land was one Rasiklal Ranchhodbhai Jani, who passed away on 24.09.2008. After the demise of the original owner, proceedings were initiated to record mutation entry in the names of his sons, i.e. the appellant herein and his brother and two other sisters of the appellant. The appellant herein objected to the mutation of the names of his two sisters in the record of rights. The said objections were overruled by the primary authority and resultantly, the mutation Entry No.3504 was mutated in the record of records, as referred to herein above.
5. The appellant herein unsuccessfully challenged the order passed by the primary authority before the appellate authority and also before the revisional authority, i.e. Special Secretary of the Revenue Department (Appeals). The abovesaid orders were subject matter of challenge before the learned single Judge.
6. The learned single Judge, by mainly taking note of the fact that the probate proceedings are pending before the competent authority and that there is no explanation worth the name as to why the probate proceedings were initiated after a lapse of almost 08 years, rejected the petition.
7. In this appeal, it is contended by learned counsel for the appellant that there is no limitation for initiating probate proceedings. In support of the Page 3 of 6 HC-NIC Page 3 of 6 Created On Sat Sep 09 08:38:44 IST 2017 C/LPA/1364/2017 ORDER submission, he placed reliance upon the judgment of the Apex Court in the case of Kunvarjeet Singh Khandpur v. Kirandeep Kaur and others reported in (2008)8 SCC 463.
8. On the other hand, it is contended by learned counsel Mr. A.B. Munshi appearing for respondent nos.1 & 2 that though the original owner, who was the father of the parties, passed away on 24.09.2008 and the Will was executed in the year 2006, the same was not produced in the proceedings before the primary authority and it was produced, for the first time, only in the proceedings before the appellate authority. It is submitted that only in January 2017, the Probate Application was filed and there is no reason at all for filing the Probate Application after such a long time and for not producing such testamentary Will before the primary authority.
9. Insofar as the probate proceedings are concerned, it is true that there is no limitation but, at the same time, the matter is pending consideration before the Court of learned Principal Civil Judge, Rajpipla, District Narmada in Probate Application No.11 of 2017. The same is to be considered on its own merits. However, the fact remains that after the demise of the original owner - Rasiklal Ranchhodbhai Jani, though the appellant had raised objections against the mutation of the names of his two sisters in the record of rights, he had not produced the testamentary Will at the stage of proceedings before the primary Page 4 of 6 HC-NIC Page 4 of 6 Created On Sat Sep 09 08:38:44 IST 2017 C/LPA/1364/2017 ORDER authority. On account of such nonproduction of the Will, the primary authority rightly effected the mutation entry in the record of rights on 01.05.2013, by entering the names of the appellant, his brother and two sisters.
10. In any way, it is to be noticed that Entry No.3504, which is already effected, will be subject to the orders to be passed in Probate Application No.11 of 2017. If the appellant herein succeeds in the abovesaid Probate Application, it is always open for him to move the authorities for mutation of entry in his favour but, at the same time, in view of the material placed before the authorities, we do not find any illegality in the orders passed by the authorities, as confirmed by the learned single Judge, which may warrant any interference in this appeal filed under Clause 15 of the Letters Patent. But, at the same time, as some findings have been recorded with regard to delay in initiating the probate proceedings, we clarify that the Probate Application is to be considered independently, being uninfluenced by the findings / observations recorded by the authorities and confirmed by the learned single Judge.
11. Subject to the above, this Letters Patent Appeal stands disposed of. Consequently, the Civil Application also stands disposed of.
(R. SUBHASH REDDY, CJ) Page 5 of 6 HC-NIC Page 5 of 6 Created On Sat Sep 09 08:38:44 IST 2017 C/LPA/1364/2017 ORDER (VIPUL M. PANCHOLI, J.) Pravin/* Page 6 of 6 HC-NIC Page 6 of 6 Created On Sat Sep 09 08:38:44 IST 2017