Gujarat High Court
Sanjaybhai Mafatlal Shah vs State Of Gujarat on 20 January, 2022
Author: Vaibhavi D. Nanavati
Bench: Vaibhavi D. Nanavati
C/SCA/14440/2020 ORDER DATED: 20/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14440 of 2020
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SANJAYBHAI MAFATLAL SHAH
Versus
STATE OF GUJARAT
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Appearance:
MS TEJAL A VASHI(2704) for the Petitioner(s) No. 1
MS DHARITRI PANCHOLI, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 20/01/2022
ORAL ORDER
1. The writ-applicant has filed the present writ-application under Section 226 of the Constitution of India being aggrieved and dissatisfied with the order passed by the respondent no.2 dated 15.10.2020, which was provided to the writ-applicant by hand delivery on 20.12.2020, whereby the application filed by the writ-applicant dated 03.09.2020 interalia requesting for a family tree / pedhinama from the respondent authority narrating the names of the legal heirs of late Smt. Pritiben Sanjaybahi Shah came to be rejected.
2. The brief facts germane to the present writ-application for adjudication of the present dispute are stated thus, 2.1 The writ-applicant herein is a businessman and he is in business of trading of chemicals with Reliance Industries Ltd.
Page 1 of 12 Downloaded on : Sun Apr 24 10:18:23 IST 2022C/SCA/14440/2020 ORDER DATED: 20/01/2022 and trading and export of potatoes as well as potato seeds. On 14.12.2019, the wife of writ-applicant Smt.Pritiben Sanjaybhai Shah expired leaving behind present applicant and two sons being (i) Kush Sanjaybhai Shah, 31 years, (ii) Luv Sanjaybhai Shah, 25 years. In her lifetime, the writ-applicant had purchased the properties in her name. Properties were purchased jointly as well by late Pritiben. Upon death of Smt. Pritiben Sanjaybhai Shah i.e. wife of writ-applicant herein, the writ-applicant approached the respondent no.2 authority for issuance of family tree / pedhinama by way of the application dated. 03.09.2020. The said application was accompanied with the affidavit filed by the writ-applicant narrating the names of legal heirs as well as other documents as narrated in the said application dated 03.09.2020 and the witnesses on behalf of the writ-applicant also remained present before the competent authority and other two legal hairs sons of late Smt. Pritiben Sanjaybhai Shah i.e. (i) Kush Sanjaybhai Shah and (ii) Luv Sanjaybhai Shah also remained present for verification as directed by the authority.
2.2 The said application dated 03.09.2020 came to be rejected by order dated 15.10.2020 relying on the circular of the State of Gujarat dtd.14.05.2014 being HKP/102014/756/j.
The operative portion of the order dated 15.10.2020 passed by the Revenue Talati, Moje Chhadavad rejecting the Page 2 of 12 Downloaded on : Sun Apr 24 10:18:23 IST 2022 C/SCA/14440/2020 ORDER DATED: 20/01/2022 application dated 03.09.2020 reads as under :-
"The Mamlatdar has instructed to proceed as per the rules of genealogy. Instructions regarding succession in case of direct heirs for agriculture and non-agriculture land, have been circulated vide circular dated 14/05/2014 of the Government. If the husband is mentioned as the heir of the wife, then he has to be mentioned as heir above line instead of direct heirs, which is not possible. Moreover, Rule-(A) to Rule-(E) under section-15 of Hindu succession Act, are given for the succession of Hindu woman, along with the same, Rules regarding the implementation of section-15 are mentioned at section-17. As per the rules deciding order for implementing the provisions of Sr. (A) to (E) of section-15, it is mentioned to indicate sons as first heirs, daughters as second heirs and husband or father as third heirs.
Thus, as per the aforesaid rules, you are not entitled to get genealogy on the basis of the affidavit and other documents submitted by you. Therefore, your application is filed. Kindly note that, the genealogy will be issued, upon fresh submission of the affidavit by you showing only the sons and daughters as the successor and not the husband in the succession of the wife."
(Translated from Gujarati to English)
3. Heard learned advocate Mr.Parth Patel for Mr.Tejal Vashi, learned advocate for the petitioner and Mr.Dharitri Page 3 of 12 Downloaded on : Sun Apr 24 10:18:23 IST 2022 C/SCA/14440/2020 ORDER DATED: 20/01/2022 Pancholi, learned AGP for the respondent - State for the respondent authority.
4. Learned advocate Mr.Parth Patel for Mr.Tejal Vashi, learned advocate for the writ-applicant submitted that the writ- applicant is seeking family tree / pedhinama from the respondent authority narrating the names of the legal heirs of late Smt. Pritiben Sanjaybhai Shah. The writ-applicant is the husband seeking impleadment in the family tree / pedhinama of Smt.Pritiben Sanjaybhai Shah along with his two sons namely (i) Kush Sanjaybhai Shah and (ii) Luv Sanjaybhai Shah. The writ-applicant submitted all the documents as sought for under the circular dated 14.05.2014 in accordance with Schedule - A and B. As stated above, he submitted that the said circular is duly attached with Schedule - A and B. The writ-applicant has produced the application at page 11/A along with the required documents, which were produced before the competent authority; (1) Affidavit duly affirmed by the writ- applicant at page no.12 and 13, (2) Death Certificate of Smt.Pritiben Sanjaybhai Shah at page no.15, (3) Aadhar Card of Witness No.1 - Aaron Darshan Patel at page no.16, (4) Aadhar Card of Vaishnavi Aaron Patel at page no.17, (5) Aadhar Card of Son Kush Shah along with Pan Card at page nos.18 and 19, (6) Pan Card and Aadhar Card of Sanjay Mafatlal Shah at page nos.20 and 21,(7) Pan Card and Aadhar Card of Luv Sanjay Shah at page nos.22 and 23. All the documents as required under the said notification were Page 4 of 12 Downloaded on : Sun Apr 24 10:18:23 IST 2022 C/SCA/14440/2020 ORDER DATED: 20/01/2022 submitted. He further submitted that the respondent authority committed an error in considering the provisions of law by rejecting the application of the writ-applicant relying on Section 17 of the Hindu Succession Act, 1956. He submitted that Section 15 (1) (A) read with Section 16 of the Hindu Succession Act would be applicable to the facts of the present case.
5. Having heard the learned counsel appearing for the parties and having gone through the materials on record the only question that falls for consideration of this Court is whether the Talati of Village : Chhadavad, Taluka :
Sabarmati, Dist. Ahmedabad was justified in rejecting the application filed by the writ-applicant for family pe-degree chart by way of the impugned communication dated 15.10.2020 (Annexure-A to the writ-application) (Page-9). For the purpose of deciding the aforesaid question it is necessary to first look into the circular issued by the State of Gujarat in its Revenue Department dated 14.5.2014 with respect to preparing a family pe-degree chart (popularly known as (pedhinama). The true English translation of the Circular dated 14.5.2014 reads thus :-
"Government of Gujarat Revenue Department Circular no. HKP/102014/756/J Secretariat, Gandhinagar.
Date: 14/05/2014.
Read with:-Page 5 of 12 Downloaded on : Sun Apr 24 10:18:23 IST 2022
C/SCA/14440/2020 ORDER DATED: 20/01/2022 Resolution no. HKP/102003/2727/J dated 01/12/2003 of the Revenue Department CIRCULAR:
The instructions with regard to the Record of Rights have been issued qua the integrated resolution dated 01/12/2003 of the Revenue Department read with. The mutation entry procedure in the revenue records, in the cases of succession of direct heir(s) and in the cases of family partition of direct heirs for agricultural and non-agricultural land (open plot), is undertaken on the basis of the Family- Tree (pedhinama), application given by an applicant and the ancillary documents. However, no instruction regarding production of Family-Tree (pedhinama) is mentioned therein.
In the rural areas, the Talati-cum-Mantri under the Panchyat Department and in the urban area, the Talati of City/ Kasba Area prepares a Family-Tree (Pedhinama). Family-Tree (Pedhinama) is prepared before the Talati-cum- Mantri/ City/Kasba Talati as dictated by an applicant and on the basis of the Rojkam of reputed witnesses. As per the present prevailing method, it is possible that a Talati-cum- Mantri may not be knowing all the family members of the persons residing in his jurisdiction, and therefore, the heirs have to face difficulties in obtaining a Family-Tree (pedhinama) and obtaining a Family-Tree (pedhinama) gets delayed also. Moreover, there are possibilities that in some cases, the applicants may conceal the name(s) which should have been mentioned and legal issues may arise at later Page 6 of 12 Downloaded on : Sun Apr 24 10:18:24 IST 2022 C/SCA/14440/2020 ORDER DATED: 20/01/2022 stage. Under these circumstances, with a view to redress difficulties of the land-holders/ khatedar in obtaining the Family-Tree (pedhinama), following instructions are hereby circulated.
(1) The Talati-cum-Mantri / City / Kasba Talati has to prepare Pedhinamu (Family Tree) as dictated by the applicant in the presence of the witnesses - reputed persons of the village and to prepare Rojkam thereof.
However, the Talati-cum-Mantri / City / Kasba Talati shall have to obtain Affidavit executed before the Competent Authority showing the details of the heirs from the applicant in order to avoid future legal issues before preparing Pedhinama (Family Tree) keeping in view that no name(s) of any legal heir(s) is concealed by the applicant, which is supposed to be included in the Pedhinama (Family Tree).
(2) In the cases of succession and in the cases of family partition of the direct heirs, the applicant has to submit Pedhinama (Family Tree), Rojkam and other documentary evidences when he goes to E-Dhara Kendra to register the mutation entry. Henceforth, the applicant shall have to submit Affidavit also showing details of the heirs before the competent authority alongwith the required documents / documentary evidences. (3) The applicant shall have to execute Affidavit showing details of the heirs, as per the applicable format of Page 7 of 12 Downloaded on : Sun Apr 24 10:18:24 IST 2022 C/SCA/14440/2020 ORDER DATED: 20/01/2022 Affidavit mentioned in Annexure-1 and Annexure-2, before the Executive Magistrate in ATVT Janseva Kendra / Notary / Competent Authority at Taluka Level. (4) In the case of Non-Resident Indian applicant, Affidavit shall be required to execute before the Competent Authority.
(5) Arrangement will have to be made at ATVT Janseva Kendra that this procedure is done under One Day Governance.
By the Order and in the name of the Governor of Gujarat, Sd/- (Illegible) (Harish Prajapati) Under Secretary, Revenue Department, Governance of Gujarat"
6. The plain reading of the above circular would indicate that it is in the form of guidelines issued for the purpose of preparing a family pe-degree chart (pedhinama) through the Talati-cum-Mantri of the village. This circular came to be issued with the sole object to ease the hardships and the difficulties which people in the rural areas were experiencing for the purpose of getting necessary entries mutated in the record of rights. Alongwith the circular there is also a form prescribed in Schedule-I. The true English translation of the Schedule-I reads thus :-
Page 8 of 12 Downloaded on : Sun Apr 24 10:18:24 IST 2022C/SCA/14440/2020 ORDER DATED: 20/01/2022 "(As per Circular No. HKP/102014/756/J, Dtd. 14/05/2014 of Revenue Department) ANNEXURE - 1 Affidavit (on stamp of Rs. 20/-) (in case of succession of direct heirs) I the undersigned, Age years, Occupation _ Residing at hereby declare on oath that, I am residing at the aforementioned address. My - father / mother / husband / wife has died on (dt.) . Following is the details of Immovable property owned / occupied by the deceased _______________________________________________ _________________ _______________________________________________ _________________ Below mentioned are his / her legal heir(s) Sr. Age -
Name Relation Residing at.
No. Years
1.
2.
3.
4.
5.
Thus, we - the aforementioned are the legal heirs of the above Page 9 of 12 Downloaded on : Sun Apr 24 10:18:24 IST 2022 C/SCA/14440/2020 ORDER DATED: 20/01/2022 mentioned deceased, which also includes married / unmarried daughters, which I assure. I declare on oath that there is no other heirs of him / her except as above. The facts mentioned in this Affidavit are true and correct. If any fact is found false, I shall be held responsible, which I know.
I know that to execute false Affidavit is a criminal offence.
Place : Signature
Date : ____________________
Before
Notary / Executive Magistrate"
7. The circular clarifies that the Talati-cum-Mantri will have to prepare the pedhinama in presence of witnesses/respectable persons that may be produced by the applicant who has filled up the form in Schedule-I in the form of an affidavit. The Talati will have to draw a rojnama of such proceedings. At times the Talati may be misled also as regards the pedhinama.
To ensure that no one mislead the Talati the applicant will have to state on oath in the form of prescribed affidavit as to who all are the heirs who are to be shown in the pedhinama.
8. Instead of complying with the instructions issued in the above referred circular the Talati appears to have considered something extraneous. There was no need for the Talati to go into the issue of Sections 15 and 17 of the Hindu Succession Act. What was expected of the Talati was to undertake Page 10 of 12 Downloaded on : Sun Apr 24 10:18:24 IST 2022 C/SCA/14440/2020 ORDER DATED: 20/01/2022 necessary procedure in accordance with the circular issued by the State Government. Once he received an application from a particular person in the form of an affidavit as prescribed in Schedule-I, the Talati has to undertake the necessary exercise of preparing the pedhinama by asking respectable persons known to the applicant to remain present and also by drawing a rojkam of such proceedings.
9. The Talati has failed to perform his duty as assigned to him by the State Government by way of the aforesaid circular.
10. Prima facie, it appears that the respondent No.2 - Talati has not been able to understand the true purport and object of the circular referred to above issued by the Revenue Department of the State Government. It is not necessary that all Talatis may be educated or literate. At times a Talati may not be able to understand what procedure he is obliged to undertake. In such circumstances, it is the respondent No.3 - Mamlatdar, who owes responsibility to ensure that the circular issued by the State Government in its Revenue Department referred to above is scrupulously followed. The circular has been issued to ease the hardships and difficulties of the citizens and not to create more hardships and difficulties only because of lack of understanding on the part of the Talati.
11. In view of the aforesaid, the impugned communication Page 11 of 12 Downloaded on : Sun Apr 24 10:18:24 IST 2022 C/SCA/14440/2020 ORDER DATED: 20/01/2022 dated 15.10.2020 is hereby quashed and set aside. The entire matter is remitted to the respondent No.2 for fresh consideration. The respondent No.2 is directed to undertake the necessary exercise in accordance with the instructions as contained in the circular. With a view to ensure that the writ- applicant may not have to come back to this Court, this Court also directs the respondent No.3 - Mamlatdar to look into the matter and ensure that the Talati i.e. the respondent No.2 undertakes the exercise of preparing the pedhinama in accordance with the circular dated 14.5.2014 (Annexure-B to this writ-application) (Page-31).
12. Let this entire exercise be undertaken afresh at the earliest and shall be completed within a period of four weeks from the date of receipt of the writ of this order.
13. Registry shall forward one writ of this order to the respondent No.2 and one writ also to the respondent no.3.
Direct service of this order is also permitted.
(VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 12 of 12 Downloaded on : Sun Apr 24 10:18:24 IST 2022