Gujarat High Court
Roshanben Hajibhai Deraiya W/O ... vs State Of Gujarat on 9 July, 2021
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/10065/2020 JUDGMENT DATED: 09/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10065 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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ROSHANBEN HAJIBHAI DERAIYA W/O GANIBHAI SORATHIYA
Versus
STATE OF GUJARAT
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Appearance:
MR ANKUR Y OZA(2821) for the Petitioner(s) No. 1
MOHSINKHAN A KOREJA(9296) for the Respondent(s) No. 5,6,7,8
MR. ROHAN N. SHAH, AGP, for the Respondent(s) No. 1,2,3,4
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CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 09/07/2021
ORAL JUDGMENT
[1] Rule. Learned Assistant Government pleader waives service of rule on behalf of respondent No.-1-State. Learned advocate Mr. Mohsinkhan Koreja waives service of rule on behalf of respondent Nos.5 to 8 .This petition under Article 226 of the Constitution of India is filed by the petitioner with the following prayers:-
"5(a). issue appropriate Writ, direction or order to quash and set aside the order No.MVV/HKP/BhVN/38/2018 dated Page 1 of 9 Downloaded on : Sat Jan 15 22:30:05 IST 2022 C/SCA/10065/2020 JUDGMENT DATED: 09/07/2021 12/06/2020 passed by the Secretary, Revenue Department (Disputes) Ahmedabad and consequently condone the delay in filing appeal against mutation entry No.6364 certified on 19/10/2016 by the respondent No.4 and further be pleased to direct the respondent No.3 to hear the appeal on merit.
(b) issue appropriate Writ, direction or order pending admission and hearing of this petition to stay the mutation entry no.6364 dated 30/08/2016 certified on 19/10/2016 by the Mamlatdar, Shihor, District Bhavnagar.
(c) pass ad-interim or interim order ex-parte in terms of paragraph (b) above."
[2] It is the case of the petitioner that the petitioner and respondent Nos. 5 to 8 are brothers and sisters and their father namely Hajibhai Sulemanbhai Deraiya was owner of agricultural land of village Shihor. That during the lifetime of the father Hajibhai Sulemanbhai, names of three brothers i.e. respondent Nos. 5, 6 and 7 were entered on 05.08.2010 and certified on 01.11.2010. While making this mutation entry, affidavits of the sisters i.e. the petitioner and respondent No.8 were relied upon and the affidavits were to the effect of relinquishing their rights into the father's property. It is submitted that based on such affidavit, right of the petitioner was extinguished. Learned advocate for the petitioner draws attention of this Court to the purported affidavit which relinquishes the right and submits that the document in the form of consent/affidavit cannot be treated as a relinquishment deed and could not have been acted upon by the authorities. The petitioner has now disputed the said relinquishment deed and therefore, the petitioner has right to adjudicate the same before the authorities, but the authorities have erroneously rejected the application merely on the ground of delay and accepted such relinquishment deed despite the petitioner has objected to the same.
Page 2 of 9 Downloaded on : Sat Jan 15 22:30:05 IST 2022C/SCA/10065/2020 JUDGMENT DATED: 09/07/2021 [3] It appears that the father Hajibhai Sulemanbhai Deraiya expired on 14.10.2010 and upon presenting the death certificate by respondent Nos. 5 to 7 before the Mamltadar, Shihor alongwith an application, the land belonging to the father of the petitioner was distributed amongst respondent Nos.5, 6 and 7 however, no consent or approval was obtained from the petitioner. The entry was made vide mutation entry No.6364 without following any procedure including issuing of notice under Section 135D of the Gujarat Land Revenue Code (for short "the Code") and the entry was confirmed on 19.10.2016.
[4] Learned advocate for the petitioner submits that the mutation entry No.6364 confirmed on 19.10.2016 was without following process of law and relying upon the affidavit dated 02.08.2010 purportedly relinquishing the right of the petitioner from the property of the father. It is submitted that even the affidavit dated 02.08.2010 is to be considered relinquishment deed, it was at the time when father was alive and in his presence, four names that is to say father and three brothers were entered into revenue record, but upon the death of the father, suddenly without change and at least in so far as the share of the father in the agricultural land, the right of the petitioner would survive unless extinguished by following due process of law. Learned advocate has relied upon the decision in the case of Sita Ram Bhama v/s. Ramvatar Bhama, reported in 2018 (15) SCC 130 and in the case of Yellapu Uma Maheshwari v/s. Buddha Jagadheeswararao, reported in 2015 (16) SCC 787 to submit that no right, title or interest of the petitioner would travel to the brothers on the basis of document which is a unregistered document.
[5] As against this, learned advocate for the respondent submitted that the authorities were consistent in holding that the claim of the petitioner is belated as way back in the year 2010, the Page 3 of 9 Downloaded on : Sat Jan 15 22:30:05 IST 2022 C/SCA/10065/2020 JUDGMENT DATED: 09/07/2021 petitioner had executed an affidavit in the lifetime of the father and now after the death of father and that too after a lapse of almost 6 years, that the petitioner is now raking up a stale claim. It is submitted that based on the affidavit for relinquishment, the petitioner had given up her right in the property on the basis of which the mutation was caused in the year 2010, but thereafter, the petitioner has never challenged that mutation entry. Therefore, the delay has to be construed from 2010 and therefore, the authorities have rightly rejected by not condoning the delay.
[5.1] It is submitted that for the subsequent entry upon the death of the father there was no question of complying with Section 135D of the Code notice as in the revenue record itself, name of the petitioner was removed to her knowledge in the year 2010 itself and therefore, her name was non-existent in so far as this property is concerned and there is no question of issuing of notice under Section 135D of the Code.
[5.2] Learned advocate for the respondent has relied upon the decision of the Supreme Court in the case of Subraya M.N. v/s. Vittala M.N., reported in 2016(8) SCC 705 to contend that the family arrangement dealing with the immovable property may not require any registration for getting effect. Another judgment relied upon in the case of Roshan Singh v/s. Zile Singh, reported in AIR 1988 SC 881 to contend that within the family when property is divided by an agreement, no registration is required. It is also submitted that on the basis of judgment of this Court in the case of Dahiben D/o Mulchandbhai Makanbhai and W/o Maganbhai Dalpatbhai Patel v/s. Collector, reported in 2019 (O) AIJEL-HC 241649 to indicate that the mutation entries are only for fiscal purpose, but does not confer any right, title or interest on the property which is subject matter of challenge.
Page 4 of 9 Downloaded on : Sat Jan 15 22:30:05 IST 2022C/SCA/10065/2020 JUDGMENT DATED: 09/07/2021 [6] The Court has heard learned advocates for the parties and perused the documents placed on record. The dispute pertains to an agricultural land bearing block/survey No.290 paiki 1 of village Shihor, District: Bhavnagar. The mutation entry No.5697 dated 05.08.2010 came to be certified on 01.11.2010 on the basis of affidavit/consent purportedly signed by the petitioner to the effect that the petitioner does not desire to continue her right in the land in question and agrees to the rights as decided by the father namely Hajibhai Sulemanbhai. This document is dated 02.08.2010. The father expired on 14.10.2010 and thereafter, on the basis of such death certificate, the respondent Nos.5 to 7 produced the copy of the death certificate of deceased father Hajibhai Sulemanbhsi for the purpose of mutation on 30.08.2016. On the basis of such application, mutation entry No.6364 came to be recorded and the same certified on 19.10.2016. It is this entry which is the subject matter of challenge before the Deputy Collector in Rev./Delay/Appeal/Reg. No.72/2017-18.
[6.1] The said application came to be rejected vide order dated 08.09.2017 on the ground of delay and while rejecting the same on the ground of delay, the Deputy Collector arrived at finding that brothers of the petitioner and respondent No.8 jointly owned the land bearing Part-1 of Survey No.290 admeasuring 1- 70-98 Hectre Sq. M. at Sihor. They distributed the land amicably and Entry No.6364 was recorded for it in the village record, which has been certified on 19/10/2016. Name of the petitioner's father was deleted after the entry was certified. The petitioner and other sister have waived their right by filing affidavits in the Entry No.5697 filed by Hajibhai Sulemanbhai for entry of right during his life. Copy of the affidavits have been produced in this case. Thus, once right is waived, entry of the name cannot be recorded again. The affidavits executed by the Page 5 of 9 Downloaded on : Sat Jan 15 22:30:05 IST 2022 C/SCA/10065/2020 JUDGMENT DATED: 09/07/2021 petitioner before Mamlatdar, Sihor on 02/08/2010 for the Entry No.5697 are binding to the petitioner's heirs. The affidavits and Entry No.5697 are of 2010. Thus, the entry is 7 years old.
[7] The petitioner thereafter preferred revision application being No.RO/Revision/85/2017 before the Collector challenging the order of the Deputy Collector. However, the Collector has confirmed the order of the Deputy Collector by an order dated 19.02.2018. Against the order of the Collector, the Revision Application being MVV/HKP/BhVN/38/2018 was filed before the Special Secretary, Revenue Department (Appeals) which came to be disposed of by an order dated 12.06.2020, confirming the order of the Collector and consequently the Deputy Collector.
[8] The document consent/affidavit dated 02.08.2010 was during the lifetime of the father, wherein the petitioner had indicated that she agrees to the decision of her father to enter the names of the brothers and her right in the land is to be relinquished. The affidavit is now disputed by the petitioner and when such document under which the right is to be relinquished, then the document is required to be registered. In case of Yellapu Uma Maheshwari (Supra), the Apex Court has held in paras-17 and 18 are as under:-
"17. It is well settled that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. A thorough reading of both Exhibits B-21 and B-22 makes it very clear that there is relinquishment of right in respect of immovable property through a document which is compulsorily registerable document and if the same not registered, becomes an inadmissible document as envisage under Section 49 of the Registration Act. Hence, Exhibits B-21 and B-22 are the documents which squarely fall within the ambit of section 17(i)(b) of the Registration Act and Page 6 of 9 Downloaded on : Sat Jan 15 22:30:05 IST 2022 C/SCA/10065/2020 JUDGMENT DATED: 09/07/2021 hence are compulsorily registerable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. We are of the considered opinion that Exhibits B-21 and B22 are not admissible in evidence for the purpose of proving primary purpose of partition.
18. Then the next question that falls for consideration is whether these can be used for any collateral purpose. The larger Bench of Andhra Pradesh High Court in Chinnappa Reddy Gari Muthyala Reddy Vs. Chinnappa Reddy Gari Vankat Reddy, AIR 1969 A.O. (242) has held that the whole process of partition contemplates three phases i.e. severancy of status, division of joint property by metes and bounds and nature of possession of various shares. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the appellants/defendants want to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the Trial Court is at liberty to mark Exhibits B-21 and B-22 for collateral purpose subject to proof and relevance."
[9] Admittedly, the affidavit/consent does not meet the requirement of Section 49 of the Registration Act, capable to transfer a right, hence cannot be treated to be a relinquishment deed and therefore, the right of the petitioner on the basis of this document cannot be treated to have extinguished. It was such document even if is to be used as a basis for relinquishment, it has to be appreciated by establishing the same by cogent evidence. Non-registration of the document is an impediment for straightway making such document admissible.
[9.1] Another aspect to which due regards will have to be given is that consent/affidavit was at the time when the father was alive and in the revenue record with the name of the father, Page 7 of 9 Downloaded on : Sat Jan 15 22:30:05 IST 2022 C/SCA/10065/2020 JUDGMENT DATED: 09/07/2021 names of three brothers were mutated vide entry No.5697. However, after the death of father on 14.10.2010, in the revenue record, the names of father and three brothers were reflected. Even after the death of the father, right of the petitioner on account of the succession for her share in the father's share of the land in question was required to be examined. The document consent/affidavit could not be treated to have extinguished the right of the petitioner in the share of the father after his death. The order of the Deputy Collector is therefore faulted on the ground of not considering the relevant material. The authorities specifically also have not taken into consideration this aspect.
[10] The respondent authorities have also committed an error simply by rejecting the application on the ground of delay. The error committed is that the authorities have construed the delay in challenging the entry from the year 2010 i.e. the day on executing of the consent/affidavit. As a matter of fact, the challenge by the petitioner is not to any mutation entry No.5659 certified on 01.11.2010, but to the mutation entry No.6364 which was on the basis of an application made by respondent Nos.5 to 7 appears on 30.08.2016 and certified on 19.10.2016. To challenge this, the petitioner has filed an application before the Deputy Collector on 30.12.2016. In that view of the matter, it cannot be said that the challenge by the petitioner was after the inordinate delay.
[11] In view of the aforesaid reasonings, challenge of the petitioner with regards to the entry No.6364 could not have been rejected merely on the ground of delay, but ought to have been decided on merits.
[12] In view of the aforesaid, the petition stands allowed. The order dated 08.09.2017 passed by the Deputy Collector in Page 8 of 9 Downloaded on : Sat Jan 15 22:30:05 IST 2022 C/SCA/10065/2020 JUDGMENT DATED: 09/07/2021 Rev./Delay/Appeal/Reg. No.72/2017-18, order dated 19.02.2018 passed by the Collector and District Magistrate, Bhavanagar in RO/Revision/85/2017 and order dated 12.06.2020 in MVV/HKP/BhVN/38/2018 passed by the Special Secretary, Revenue Department (Dispute) are quashed and set aside. The application of the petitioner before the Deputy Collector being Appeal Restoration No. Rev./Delay/Appeal/Reg. No.72/2017-18 to be heard on merits by the Deputy Collector expeditiously. Rule is made absolute to the aforesaid extent. Direct service is permitted.
[13] At this stage, learned advocate for the respondent Nos.5 to 8 prays to stay this order. Considering the nature of relief granted directing the Deputy Collector to expeditiously hear the case of the petitioner, the request for stay of the order of the order is refused.
(A.Y. KOGJE, J) SIDDHARTH Page 9 of 9 Downloaded on : Sat Jan 15 22:30:05 IST 2022