Therefore, the next question that arises is whether the Petitioner-Respondent No. 2 and Respondent Nos. 1 and 4 herein can be said to be the persons who are legal heirs and representatives and have inherited estate of deceased Laxman. There is no dispute that the Petitioner and Respondent Nos. 2 and 4 are the sons of deceased Laxman and Respondent No. 1 Padmavati. However, they have been excluded only because they were sons born prior to the date of adoption of Laxman. This is obviously improper. No provision in law has been adverted to by the authorities below to substantiate this position. On the other hand, reliance was placed on the decision of this court by the Petitioner to support his contention that all the legal heirs and representatives of deceased Laxman were entitled to be included in the proposed mutation entry. Besides, the said decision which was relied before the authorities, reliance has also been placed on the decision of this court reported in 1978 Mah.L.J. 356 in the case of Kausalayabhau v. Devakabai. In that case, the father went in adoption in 1924 and died after 1956. However, before the date of adoption daughter was born. The Court held that even if the daughter was born before adoption she was entitled to share in father's property as the father had died in 1965 i.e. after 1956. Reliance is also placed on another decision of Karnataka High Court in the case of Smt. Neelawwa v. Bhivawwa. In that case, the father of Plaintiff was given in adoption and died intestate after coming into force of Hindu Succession Act, 1956; the Court held that stepmother and the plaintiff herself being only heirs were entitled to succeed to the estate of the deceased irrespective of the fact that the Plaintiff daughter who was born prior to adoption of her father. No doubt, both these decisions pertain to claim of inheritance set up by the daughter born prior to the adoption of her father-whereas in the present case, the Petitioner, Respondent Nos. 2 and 4 are the sons born prior to the adoption of their father. That would make no difference to the application of legal principle enunciated in the above said decision. The position that would emerge is that irrespective of the fact that the son or daughter was born prior to the date of adoption that would not exclude him or her from inheriting or succeeding to the estate of deceased father. Understood thus, it is not possible to countenance the reason which has weighed with the authorities below in recording the names of Respondent Nos. 1 and 3 alone as having succeed to the estate of deceased Laxman.
Bombay High Court
Shri Manohar Laxman Kulkarni vs Smt. Padmavathi W/O. Laxman ... on 11 November, 2002
Equivalent citations: 2003 (3) MhLj 951
1. This writ petition takes exception to the order passed by the Revenue Authorities in relation tot he Mutation Entry No. 4702 indicating that the Respondent Nos. 1 and 3 herein as the owners in respect of the suit lands to the exclusion of the Petitioner and Respondent Nos. 2 and 4 herein. The land in question is situated at Village Kasegano, Taluka, Walwa, Dist. Sangli. The said land was originally owned by the Saraswati Kulkarni. She adopted Laxman G. Kulkarni on 2.11.1935. When that adoption took place, the Petitioner and Respondent Nos. 2 and 4 herein respectively were three sons of said Laxman. All the three sons were born prior to adoption. After above said adoption, the Respondent No. 3 Sou. Kalindi was born to said Laxman and Respondent No. 1. It is not in dispute that the said Saraswati predeceased Laxman whereas Laxman died on 10.1.1987. After the death of Laxman, the Respondent No. 3 Sou. Kalindi daughter born after adoption filed application before the revenue authorities for effecting necessary mutation so as to indicate her as well as name of her mother Respondent No. 1 as the owners of the suit land. This application is on the premise that the Petitioner-Respondent Nos. 2 and 4 had no right with regard to suit land since they were born prior to the date of adoption; whereas Sou. Kalindi-Respondent No. 3 daughter was born after the adoption and therefore, the said daughter and the wife of Laxman alone would succeed to the property.
2. As aforesaid, that application was filed on 10.3.1987 and the concerned officer immediately on the very next day obliged by effecting the mutation entry No. 4702 i.e. on 11.3.1987. It presupposes that necessary procedure required for carrying out amendment or changing the mutation entry was not observed.
3. Be that as it may, being aggrieved the Petitioner carried the matter in appeal before the Sub Divisional Officer. The Sub Divisional Officer accepted the grievance of the Petitioner by order dated 16.3.1989 and allowed the appeal with directions to the Tahsildar to undertake fresh enquiry before effecting the mutation entry in respect of the suit land. Before the first Appellate Authority, it was contended on behalf of the Petitioner that although the Petitioner and Respondent Nos. 2 and 4 were born prior to the date of adoption of Laxman, yet they would inherit and succeed to the estate of Laxman alongwith other heirs namely the Respondent Nos. 1 and 3 herein. That contention was accepted by the First Appellate Court as it was substantiated by the Petitioner by relying on the decision of this Court in Second Appeal No. 556/1968 dated 16.11.1971.
4. Being dissatisfied by the said order, the Respondent No. 3 filed appeal before the Second Appellate Authority. The second Appellate Authority, the Additional Collector and Resident Deputy. Collector, Sangli. The second Appellate Authority on the other hand by order dated 25.1.1980 partly allowed the appeal preferred by Respondent No. 3. The second appellate Authority observed that the decision relied upon by the Petitioner in support of their plea that they have also inherited the estate of Laxman was in applicable to the present case. Besides, the second Appellate Authority took the view that it was relevant to examine who was in actual possession of the suit land and since there was no evidence brought on record with regard to actual possession of the suit land enquiry will have to be limited to that extent.
5. Being dissatisfied by this decision, both the Petitioners on the one hand and Respondent Nos. 1 and 3 on the other hand preferred two separate revision application before the Additional Commissioner. Pune Division, Pune. The Addl.Commissioner by his order dated 14.2.1992 was pleased to dismiss the revision application preferred by the Petitioner and; whereas allowed the revision application preferred by Respondent Nos. 1 and 3. As a consequence of that order, the Commissioner restored the mutation entry No. 4702 which operates in favour of Respondent Nos. 1 and 3 alone.
6. In the circumstances, the Petitioner carried the matter by way of further revision before the Minister for Revenue and Forest Department, Maharashtra State. That revision was dismissed by the Minister on 8.9.1992.
7. It is in this backdrop, the present petition has been filed under Article 227 of the Constitution of India assailing the correctness of the view taken by the authorities below and to contend that the Respondent Nos. 1 and 3 alone did not succeed or inherit estate of the Laxman, but, even Petitioners and Respondent Nos. 2 and 3 being sons of deceased Laxman and Respondent No. 1 were entitled to succeed to his estate, albeit born prior to the date of adoption of Laxman. In substance, the Petitioner submits that the subject Mutation Entry No. 4702 effected in favour of Respondent Nos. 1 and 3 be set aside and the Revenue Authorities be directed to effect appropriate mutation entry by recording the names of Petitioners, the Respondent Nos. 2 and 4 alongwith all the heirs and legal representatives of deceased Laxman G. Kulkarni.
8. It is relevant to note that, during the pendency of this Petition, the Respondent No. 1 has been reported to be dead but, since, all the heirs of Respondent No. 1 are already on record, the matter would proceed. Although, the Respondent No. 3 has been served none appears; whereas Mr. Vaze appears for Respondent No. 4. He had adopted the argument advanced on behalf of the Petitioner.
9. Having considered the submissions, I have no hesitation in taking the view that the approach of the revenue authorities in conforming the Mutation Entry No. 4702 is wholly improper. As rightly contended by the Petitioner Section 148 of the Maharashtra Land Revenue Code, 1966 provides that a record of right shall be maintained in every village and such record shall include that the names of all persons (other than tenants) who are holders, occupants, owners or mortgages of the land or assignees of the rent or revenue thereof. The nature and extent of the respective interests of such persons and conditions or liabilities, if any, attaching thereto etc. The learned counsel for the Petitioner therefore, rightly contends that the names of legal heirs and representatives of deceased Laxman will have to be recorded in the record of rights by virtue of Section 148 of the MER Code.
10. Therefore, the next question that arises is whether the Petitioner-Respondent No. 2 and Respondent Nos. 1 and 4 herein can be said to be the persons who are legal heirs and representatives and have inherited estate of deceased Laxman. There is no dispute that the Petitioner and Respondent Nos. 2 and 4 are the sons of deceased Laxman and Respondent No. 1 Padmavati. However, they have been excluded only because they were sons born prior to the date of adoption of Laxman. This is obviously improper. No provision in law has been adverted to by the authorities below to substantiate this position. On the other hand, reliance was placed on the decision of this court by the Petitioner to support his contention that all the legal heirs and representatives of deceased Laxman were entitled to be included in the proposed mutation entry. Besides, the said decision which was relied before the authorities, reliance has also been placed on the decision of this court reported in 1978 Mah.L.J. 356 in the case of Kausalayabhau v. Devakabai. In that case, the father went in adoption in 1924 and died after 1956. However, before the date of adoption daughter was born. The Court held that even if the daughter was born before adoption she was entitled to share in father's property as the father had died in 1965 i.e. after 1956. Reliance is also placed on another decision of Karnataka High Court in the case of Smt. Neelawwa v. Bhivawwa. In that case, the father of Plaintiff was given in adoption and died intestate after coming into force of Hindu Succession Act, 1956; the Court held that stepmother and the plaintiff herself being only heirs were entitled to succeed to the estate of the deceased irrespective of the fact that the Plaintiff daughter who was born prior to adoption of her father. No doubt, both these decisions pertain to claim of inheritance set up by the daughter born prior to the adoption of her father-whereas in the present case, the Petitioner, Respondent Nos. 2 and 4 are the sons born prior to the adoption of their father. That would make no difference to the application of legal principle enunciated in the above said decision. The position that would emerge is that irrespective of the fact that the son or daughter was born prior to the date of adoption that would not exclude him or her from inheriting or succeeding to the estate of deceased father. Understood thus, it is not possible to countenance the reason which has weighed with the authorities below in recording the names of Respondent Nos. 1 and 3 alone as having succeed to the estate of deceased Laxman.
11. In the circumstances, appropriate course is to restore the order passed by the first Appellate Authority which had set aside the subject mutation entry No. 4702 and directed the Tahsildar to include the names of the Petitioner and Respondent Nos. 2 and 4 alongwith Respondent Nos. 1 and 3 by fresh mutation. That is the correct order that ought to be made in the fact situation of the present case.
12. Accordingly this petition succeeds. The impugned orders are set aside and instead the order passed by the Sub Divisional Officer, Walwa dated 16.3.1989 in R.T.S. Appeal No. 78/1987 is restored. No order as to costs.
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