Gujarat High Court
Subhashbhai Bhikhubhai Patel & vs Bimal Ramakant Halpati & ... on 14 July, 2015
Author: Akil Kureshi
Bench: Akil Kureshi
C/CRA/196/2014 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL REVISION APPLICATION NO. 196 of 2014
[On note for speaking to minutes of order dated 09/06/2015 in
C/CRA/196/2014 ]
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SUBHASHBHAI BHIKHUBHAI PATEL & 1....Applicant(s)
Versus
BIMAL RAMAKANT HALPATI & 14....Opponent(s)
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Appearance:
MR ADIL R MIRZA, ADVOCATE for the Applicant(s) No. 1 - 2
MR BHARAT T RAO, ADVOCATE for the Opponent(s) No. 1 - 2
RULE SERVED for the Opponent(s) No. 3 - 15
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
Date : 14/07/2015
ORAL ORDER
Through this Note for Speaking to Minutes, it is pointed out that in the first paragraph of the order dated 9.6.2015, reference to the Regular Civil Suit is wrongly typed as Regular Suit No. 66 of 2012 instead of 56 of 2012.
Such typographical error is ordered to be corrected.
Note for Speaking to Minutes is disposed of.
(AKIL KURESHI, J.)
JNW
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C/CRA/196/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION NO. 196 of 2014 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================== 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 or any order made thereunder ?
========================================================== SUBHASHBHAI BHIKHUBHAI PATEL & 1....Applicant(s) Versus BIMAL RAMAKANT HALPATI & 14....Opponent(s) ========================================================== Appearance:
MR ADIL R MIRZA, ADVOCATE for the Applicant(s) No. 1 - 2 MR BHARAT T RAO, ADVOCATE for the Opponent(s) No. 1 - 2 RULE SERVED for the Opponent(s) No. 3 - 15 ========================================================== CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI Date : 09/06/2015 ORAL JUDGMENT
1. This revision application is takenup for final hearing at the admission stage. I have heard learned advocates for Page 1 of 10 2 of 11 C/CRA/196/2014 JUDGMENT the parties at a considerable length. Petitionersoriginal defendants No. 14 and 15 of Regular Civil Suit No. 66 of 2012 have filed this petition challenging an order dated 20.02.2014 passed by the learned Additional Civil Judge, Vapi below application Exhibit 34 filed by them under Order 7 Rule 11 of Civil Procedure Code.
2. Brief facts are as under:
Land bearing Survey Nos. 352/1 and 352/2 admeasuring 86 ares of Village Chala of Pardi Taluka of Valsad District was of the ownership of one Shri Naranbhai Maganbhai Gedia who belonged to the Scheduled Tribe. The present respondent Nos.1 and 2, original plaintiffs claimed to have received the suit land under a Will dated 02.07.2010 made by said Shri Naranbhai. Naranbhai died on 04.04.2012. However, since the legal heirs of Naranbhai were not accepting the said Will and the transfer of the property through such Will in favour of the plaintiffs, they filed the said suit praying for a declaration that he had become the owners of the said land under the Will dated 02.07.2010 of deceased Naranbhai. They also prayed that the defendants be prevented from dispossessing of the suit land.
The present petitioners initially claimed to have also received the same land under a Will dated 07.12.2011 of Page 2 of 10 3 of 11 C/CRA/196/2014 JUDGMENT Naranbhai but later on, claimed that after Naranbhai's demise they had purchased the land from his legal heirs with proper sanction from the competent authority. Initially, these petitioners were not parties to the suit proceedings. At their instance, they were joined as defendants No. 14 and 15. On the premise that a tribal cannot transfer his immovable property through a Will in view of the restrictions contained in Section 73AA of the Gujarat Land Revenue Code, they moved application Exhibit 34 before the Trial Court seeking rejection of the plaint under Order 7 Rule 11 Clause D. On such application the Trial Court passed the impugned order inter alia observing that if the Will in favour of the plaintiffs is in breach of Section 73AA of the Gujarat Land Revenue Code, one claimed by the defendants No. 14 and 15 would also be hit by the same provision. The Court also observed that there was breach of Section 73AA insofar as the transaction in favour of the plaintiffs is concerned, however, the question of forcible dispossession of the plaintiffs would still survive and that therefore, the suit cannot be dismissed. It is this order which the defendants No. 14 and 15 have challenged in this revision application.
3. Learned counsel Mr. Adil Mirza for the petitioners contended that the Trial Court committed a serious error Page 3 of 10 4 of 11 C/CRA/196/2014 JUDGMENT in rejecting the application of the petitioners that too with a finding that there was a breach of Section 73AA of the Gujarat Land Revenue Code. He relied on the decision of the Division Bench of this Court in case of Shamjibhai Keshavjibhai Kansagra (Patel) & Ors. vs. Principal Secretary, Revenue Dept (Appeals) and ors. reported in AIR 2011 Gujarat 55. He also relied on the decision in case of Rajenbhai Baldevbhai Shah vs. Baijiben Kabhaibhai Patanvadia reported in 2009 2 GLR 1784.
4. On the other hand, learned counsel Mr. Rao for the original plaintiffs, the present respondents No. 1 and 2 vehemently contended that the defendant Nos. 14 and 15 have been taking inconsistent stand. They also claimed to have received the same land through a Will on which basis they were allowed to be joined as defendants in the suit. In any case, the plaintiffs themselves are tribal. The question whether by virtue of the Will the transfer of the property would be hit by Section 73AA of the Gujarat Land Revenue Code would require further consideration. The Court, therefore, committed no error in dismissing the application for rejection of the plaint.
5. Insofar as the locus standi of these petitioners, who filed the said application Exhibit 34 for rejection of the plaint Page 4 of 10 5 of 11 C/CRA/196/2014 JUDGMENT is concerned, there is no serious dispute. They have been joined as defendants in the civil suit of course at their request and such order has not been carried further. They would therefore, be entitled to raise appropriate defense including questioning the very institution of the suit. Merely because at one stage they claimed the title to the property through a Will would not preclude them from ascertaining that they acquired the property through a registered sale deed from the heirs of the deceased Narenbhai with permission from the authorities. I hasten to add that I am not called upon to nor have I examined the validity of the transaction of sale putforth by these defendants. They are not the plaintiffs before the Court nor are they opposing application under Order 7 Rule 11. Their assertion of title to the property could be gone into in appropriate proceedings after fullfledged inquiry. Presently I am only concerned with the validity of the order of the Trial Court refusing to reject the plaint on the ground that the suit is barred by law or that the same does not disclose any cause of action.
6. In this context, one may recall the entire basis of the plaintiffs' claim to the property is the so called Will made by Narenbhai before his death. Section 73AA of the Gujarat Land Revenue Code pertains to restriction on transfer of occupancies of tribals to tribals or nontribals.
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C/CRA/196/2014 JUDGMENT
Sub section (1) thereof provides that notwithstanding anything contained in Section 73, an occupancy of a person belonging to any of the Scheduled Tribes shall not be transferred to any person without the previous sanction of the Collector. Admittedly, in the present case, Narenbhai was a tribal. The question, therefore, is, whether even through a Will he could have assigned the said property to a person not member of his family i.e. his legal heirs. This question came up before Division Bench of this Court in case of Shamjibhai Keshavjibhai Kansagra (Patel) & Ors. vs. Principal Secretary, Revenue Dept (Appeals) and ors. in para 9 the Court framed following questions for its consideration:
"9. The questions that arise in these cases are:
(a) Whether by execution of a will `occupancy of land' of a tribal can be transferred to any tribal or a nontribal in view of restriction u/Sec.73AA of the Code?
(b) Whether by execution of a will `interest' on an agricultural land can be transferred by a tenant landholder to a nonagriculturist, except in the manner prescribed u/Sec.63 of the Bombay Tenancy Act?
The conclusion of the Court were as under:
"22. The question arises as to whether any living person can execute a document in contravention of any law. The answer is always in negative. If law do not permit and there is a prohibition to do certain thing, or there is a prohibition to do certain act except in certain manner, any Page 6 of 10
7 of 11 C/CRA/196/2014 JUDGMENT document or agreement or anything in contravention to such provision of law, is illegal and invalid. During the lifetime of a living person, if the person is under restriction to execute certain document and thereby has no right to transfer his occupancy or no right to transfer his interest under one or other Act, he cannot execute any document, including a will showing his wish and intention in regard to such property in contravention of such law. Therefore, a tribal even cannot wish nor can show his intention to transfer his right of occupancy to a tribal or nontribal, there being restriction u/Sec.73AA of the Bombay Land Revenue Code. Similarly, a tenantowner of agricultural land cannot wish nor can show his intention to transfer his right on agricultural land to a nonagriculturist by executing a will in contravention of Sec.63 of the Bombay Tenancy Act, except in the manner prescribed thereunder. Any such wish and intention shown by testator during his lifetime, being in contravention of law, as noticed above, is invalid and can be ignored.
24. Therefore, even if it is accepted that the transfer under the Transfer of Property Act is a conveyance of an existing property by one living person to another, and will does not involve any transfer, but if a will is executed in contravention of law, it is always open tot he authority to ignore such will and may refuse to mutate the name on the basis of such will."
7. In a slightly different context, Division Bench of this Court in case of Rajenbhai Baldevbhai Shah vs. Baijiben Kabhaibhai Patanvadia (supra) also held that term 'assignment' used in Section 43 of the Bombay Tenancy and Agricultural Lands Act would include a Will and in view of the restrictions contained in Section 63 of the said Act a holder of agriculture land cannot execute a Page 7 of 10 8 of 11 C/CRA/196/2014 JUDGMENT Will in favour of a nonagriculturist and defeat the object and purpose of the act.
8. In view of these judicial pronouncements, the conclusion of the Trial Court that the transaction in favour of the plaintiffs was definitely hit by Section 73AA of the Gujarat Land Revenue Code gets confirmed. Despite such findings, the Trial Court refused to dismiss the plaint only on the ground that the question of forcible dispossession of the plaintiffs' was yet to be decided. In my view, this was a clear error. Even the plaintiffs have not voiced any apprehension of illegal or forcible dispossession in the suit. It is not even the case of the plaintiffs that the defendants were likely to take law in their hands and evict them out of the said property. Merely therefore to survive the suit on this basis, would be to give artificial life to a litigation which is a dead cause. Order 7 Rule 11 of the Code of Civil Procedure would require the Court to reject the plaint inter alia when it does not disclose the cause of action or where the suit appears from the statement of the plaint to be barred by any law. When the very basis of the plaintiffs' claim to the suit property namely, the Will made by the Tribal is hit by a statutory restriction, the suit could be stated to have been lacking in disclosure of any cause of action. Learned counsel Mr. Rao however drew my attention to subsection (3) of Section 73AA of the Gujarat Land Revenue Code and Page 8 of 10 9 of 11 C/CRA/196/2014 JUDGMENT contended that since the plaintiffs are also tribal, within two years, the transferor tribals would have to make an application for restoration of the possession of the suit land failing which the transfer would continue to operate. However, this contention ignores the provision of Section 73AC of the Gujarat Land Revenue Code, Sub section (1) whereof which provide that no civil court shall have jurisdiction to settle, decide or deal with any question which is by or under Section 73A or Section 73AA or Section 73AB required to be settled, decided or dealt with by the Collector nor shall the Civil Court have jurisdiction to entertain any suit or application for grant of injunction in relation to such question.
9. In the result, the revision petition is allowed. The application Exhibit 34 filed by the present petitioners under Order 7 Rule 11 is granted. Plaint stands rejected. It is again clarified that I have not decided the nature of the rights of the present petitionersdefendants No. 14 and 15 qua the said land and all pending proceedings with respect to the same will be decided unmindful of these observations.
10. At the request of learned advocate Mr. Rao this order shall stand stayed up to 15.07.2015.
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