A will cannot bequeath restricted-tenure land without the Collector’s prior sanction.

The disputed lands comprised Survey Nos. 265/2, 265/3, 265/4, 265/5 and 267, situated at Village Nani Tambadi, Taluka Pardi, District Valsad. They were owned by Parbhubhai Mangalabhai, who died on 28 October 2007. The petitioner, his maternal nephew, claimed the lands under a registered Will executed by Parbhubhai on 11 April 1990 and obtained mutation of his name through Entry No. 4151.

The Mamlatdar cancelled that entry on the ground that the lands were restricted/new-tenure lands and could not be transferred without the requisite statutory permission under Section 73AA of the Bombay/Gujarat Land Revenue Code and Section 43 of the Gujarat Tenancy and Agricultural Lands Act, 1948. Thereafter, the names of the deceased’s heirs were mutated through succession Entry No. 4175, which was certified on 13 March 2009.

The petitioner challenged the cancellation of Entry No. 4151 before the Deputy Collector, who dismissed the appeal on 23 November 2010. The Collector dismissed the revision on 21 November 2012, and the Special Secretary, Revenue Department, dismissed the further revision on 4 January 2017.

The petitioner consequently invoked Articles 226 and 227 of the Constitution, seeking quashing of the revenue orders and certification of Entry No. 4151, along with cancellation of Entry No. 4175.

Whether the revenue authorities were justified in refusing to mutate the petitioner’s name on the basis of a registered Will concerning restricted-tenure lands, where the statutory permission required for transfer had not been obtained?

Whether a testamentary disposition or registered Will could validly transfer or confer rights in restricted-tenure/agricultural land in breach of Section 43 of the Gujarat Tenancy and Agricultural Lands Act, 1948 and Section 73AA of the Gujarat Land Revenue Code?

Whether the petitioner could challenge the heirship mutation Entry No. 4175 before the Collector and the Special Secretary when that challenge had not been raised before the Deputy Collector?

Whether the petitioner could obtain mutation of his name merely on the basis of the registered Will without first establishing its validity and enforceability before a competent Civil Court?

The Court applied Section 73AA of the Gujarat Land Revenue Code, which restricts transfer of tribal/restricted occupancy except in the manner authorised by law, and Section 43 of the Gujarat Tenancy and Agricultural Lands Act, 1948, which prohibits transfer, assignment or other disposition of protected agricultural land without the requisite prior permission.

Relying on Shamjibhai Keshavjibhai Kansagra (Patel) v. Principal Secretary, Revenue Department, AIR 2011 Gujarat 55, the Court held that statutory restrictions on transfer cannot be circumvented through a Will; a testamentary disposition that defeats the object of protective land legislation is invalid or liable to be ignored for mutation purposes.

A registered Will does not, by itself, establish title or entitle the beneficiary to mutation where its legal validity and enforceability are disputed; the propounder must establish the Will before the competent Civil Court.

Revenue authorities decide fiscal entries and cannot conclusively adjudicate title or the genuineness and validity of a Will.

Further, a revisional/appellate authority cannot enlarge the scope of proceedings by permitting a new challenge that was not raised before the subordinate authority.

The Court found that the lands were admittedly restricted-tenure lands and that the petitioner relied on the Will without obtaining the prior statutory permission necessary for transfer.

Applying Shamjibhai, it held that although a Will operates after the testator’s death and is not an inter vivos transfer in the ordinary sense, it cannot be used to defeat statutory restrictions on the transfer or assignment of protected agricultural land.

The revenue authorities were therefore entitled to refuse mutation based on the Will.

The petitioner’s possession, payment of land revenue and construction on the property did not establish lawful title, since payment of revenue is only a fiscal matter and possession under a potentially invalid instrument cannot be presumed lawful.

The Court also held that the petitioner had not properly challenged Entry No. 4175 before the Deputy Collector and could not introduce that challenge for the first time before the Collector or the Special Secretary.

Since the petitioner had not obtained a Civil Court determination validating the Will, he could not compel the revenue authorities to recognise it through mutation.

It held that the Will, executed in respect of restricted-tenure lands without the requisite statutory permission, could not form the basis for mutation, and that the petitioner must establish his rights and the validity of the Will before a competent Civil Court.

Any interim relief was vacated forthwith.