Gujarat High Court
Ramniklal (Ramanlal) Trikamji Sevak vs State Of Gujarat on 6 February, 2013
Author: Jayant Patel
Bench: Jayant Patel
RAMNIKLAL (RAMANLAL) TRIKAMJI SEVAK....Petitioner(s)V/SSTATE OF GUJARAT - V.C.TRIVEDIAND/OR HIS SUCCESSOR C/SCA/2685/2004 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 2685 of 2004 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE JAYANT PATEL ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ RAMNIKLAL (RAMANLAL) TRIKAMJI SEVAK....Petitioner(s) Versus STATE OF GUJARAT - V.C.TRIVEDIAND/OR HIS SUCCESSOR & 4....Respondent(s) ================================================================ Appearance: MR ANSHIN H DESAI, ADVOCATE for the Petitioner(s) No. 1 MR JAYSWAL AGP for the Respondent(s) No. 1 - 4 MR BD KARIA, ADVOCATE for the Respondent(s) No. 5 ================================================================ CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL Date : 06/02/2013 ORAL JUDGMENT
1. The petitioner by this petition challenges the order passed by the Deputy Collector and the confirmation thereof by the District Collector as well as State Government; whereby, the entry No.276 dated 11.4.1997 mutated in the revenue record is set aside and the matter is remanded for following procedure as if the interest is derived in the property by way of succession.
2. The short facts are that as per the petitioner, widow Prabhuichchha Prabhuprasad expired on 28.12.1995 without leaving any issue and she executed Will ; whereby, the property bearing Block No.13, C.S. No.7/2 of situated at Junagadh was bequeathed to the petitioner by will. The entry was mutated in the revenue record to that effect based on the will of widow Prabhuichchha Prabhuprasad. Respondent No.5 being aggrieved by the said order of making entry in the revenue record, carried the matter before the Deputy Collector, Junagadh and the Deputy Collector, Junagadh by order dated 18th February, 1998 allowed the appeal and remanded the matter to the Revenue Authority City Survey Superintendent for considering afresh as if it is a successory property. The matter was further carried before the District Collector vide order dated 31st July, 1998 the District Collector dismissed the appeal. The matter was further carried before the State Government and the State Government vide order dated 8.12.2003 dismissed the revision. It is under these circumstances, the present petition before this Court.
3. I have heard Mr.Ashin Desai, learned counsel appearing for the petitioner, Mr.Jayswal, learned A.G.P. for the State Authorities and Mr.Karia, learned advocate for respondent No.5.
4. It appears from the impugned order passed by the State Government that the State Government was guided by the point that there was no probate obtained of the Will of Prabhuichchha Prabhuprasad and it has been further stated in the order that the Will was pertaining to the property at Mumbai and therefore, until the probate is obtained and the property in which the interest has been inherited by way of succession, without hearing to all legal heirs, the entry could not have been certified and therefore, the revision is dismissed and the order of the Deputy Collector and the District Collector are confirmed.
5. The copy of the Will is produced at Annexure-E and the perusal thereof, shows that there is no reference for succession by will of any property located at Mumbai or within the boundaries of corporation area of Mumbai. The Will is pertaining to property located at Junagadh which area is not covered in the presidential town. It is by now well settled that if any property is not located in the presidential town and is outside the area of presidential town, the probate is not a must for succession of the rights of the parties based on the will. The reference may be made to the decision of Apex Court in case of Clarence Pais and Others V/s. Union of India reported in (2001) 4 SCC 325 and the another decision of this Court based on the above referred decision of the Apex Court in case of Minaxiben S.Patel V/s. District Collector, Gandhinagar reported in 2007(1) GLR 277.
In the said decision, this Court observed at para-4 to 8 as under:
4.
As such, on the aspects of the existence of the Will, there is no dispute. Whether the Will is genuine or not is also not in dispute before this Court. Whether by the present Will, rights of the other legal heirs of the deceased are affected in any manner or not is also not an aspect, which is the subject matter of this petition. The only aspect, which arise for consideration is legality and validity of the stand taken by the District Collector for insistence of the probate before making mutation entry in the revenue record based the will of the deceased.
5. In my view, as per the provisions of Section 57 of the Indian Succession Act, 1925 (hereinafter referred to as the Act ), the provisions of testamentary succession are applicable to the Will made by Hindu, subject to restriction and the modifications specified therein. The Will made by Hindu are differently classified qua the property situated within the territories, which were subject to the control of the Lieutenant- Governor of Bengal or within the local limits of the ordinary civil jurisdiction of the High Courts of Judicature at Madras and Bombay. Whereas, qua all other Wills made by Hindus, a separate clause is provided under clause (c) of the Section 57 of the Indian Succession Act.
As per Section 213 of the Indian Succession Act, the right as executor or legatee pursuant to the Will can be established in any Court of justice unless a Court of competent jurisdiction has granted probate of the said Will. However, subsection 2 of Section 213 provides that this Section shall not apply to the Will made by Hindu, Buddhist or Sikh where such Wills are of the clauses specified in clause (a) &
(b) of Section 57 of the Act. To say in other words, if the Will is falling in the category of the clauses other than Clause (a) &
(b) of Section 57 of the Act, the restriction as provided in sub-section 1 of Section 213 of the Act shall not operate.
7. At this stage, it would be worthwhile to extract certain observations of the Apex Court in the case of Clarence Pais and Ors. Vs. Union of India, reported at 2001 SC 1151 wherein while considering the constitutional validity of the provisions of Section 213 vis-a-vis Section 57 of the Indian Succession Act at para 6, it has been observed by the Apex Court inter alia as under:
A combined reading of Section 213 and 57 of the Act would show that where the parties to the will are Hindus or the properties in dispute are not in territories falling under Section 57(a) and (b), sub-section(2) of Section 213 of the Act applies and subsection(1) has no application. As a consequence, a probate will not be required to be obtained by a Hindu in respect of a will made outside those territories or regarding the immovable properties situate outside those territories. (emphasis supplied.)
8. The aforesaid position of law is settled by the highest Court of the country and therefore, no further discussion may be required .
6. Same situation would prevail in the present matter inasmuch as the Will was pertaining to the property not located in the presidential town but located outside the area of presidential town i.e. Junagadh. Probate was not required to be obtained before the Will is acted upon.
7. Under these circumstances, the order of the Revenue Authority on the basis that probate was required to be obtained before the entry was recorded in the revenue record pertaining to the Will cannot be sustained. On the aspect that one of the property is located at Mumbai or was pertaining to property of Mubmai. The said ground is non existence and the findings so recorded, could be said as perverse to the record.,
8. As referred to herein above, the copy of the Will which is produced in the present proceedings shows that none of the property was located at Mumbai for which the Will was executed.
9. In view of the aforesaid, the order passed by the revenue authority for setting aside the decision of certifying the entry based on the Will without probate cannot be sustained in the eye of law and hence, the same deserves to be set aside.
10. Mr.Karia, learned counsel appearing for respondent No.5 attempted to contend that the property which is subject matter of the Will is by way of inheritance acquired by widow Prabhuichchha from her husband Prabhuprasad and therefore, she could not have executed Will for the said property. In my view, such aspect cannot be gone into while certifying the revenue entry and if respondent No.5 is asserting any right in property or is challenging the authority or genuineness of the Will , appropriate remedy is available before the Civil Court by preferring Civil Suit for appropriate relief.
11. Mr.Desai, learned counsel appearing for the petitioner voiced an apprehension that if Civil Suit is filed by now, the limitation is over long back and therefore, the observations made by this Court may not be construed for condonation of the delay automatically or giving any additional right to the respondent No.5 to prefer civil suit.
12. In my view, such apprehension is ill-founded because when the civil suit is to be preferred or is preferred, the question of limitation and the rights of other parties would always be required to be examined in accordance with law by the Civil Court concerned. The observations cannot be interpreted to mean for creating any additional right since the same is by way of clarification of the remedy available to the parties.
13. In view of the aforesaid observation and discussion, the impugned order passed by the Deputy Collector and its confirmation thereof by District Collector and the State Government are quashed and set aside. Consequently, Entry No.276 dated 11.4.1997 shall stand restored subject to the clarification made herein above in the present judgment.
14. The petition is allowed to the aforesaid extent. Rule made absolute. Considering the facts and circumstances of the case, no order as to cost.
(JAYANT PATEL, J.) ashish Page 7 of 7