Fraudulent Mutation Entry Is A 'Nullity'; Limitation Begins From Knowledge Of Fraud: Gujarat High Court

The Gujarat High Court has held that revenue entries obtained by suppressing material facts and playing fraud cannot confer legal rights, reiterating that any order secured by fraud is a “nullity and non est in the eye of law.”

In doing so the court observed that challenge to a 29-year-old mutation entry would not be barred by limitation as limitation was applicable only from the date of knowledge of the fraud, and not from the date of the fraud itself. 

Justice Divyesh A. Joshi relied on the Supreme Court judgement of A.V. Papayya Sastry & Ors. Vs. Government of A.P. & Ors., wherein the apex court had observed:

“It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law. Such a judgment, decree or order… has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings… Fraud and justice never dwell together… Even most solemn proceedings stand vitiated if they are actuated by fraud.”

The high court thereafter said:

"Thus in view of the aforesaid decision of the Hon'ble Supreme Court, it is evident that whenever any any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law and such judgment or order is a nullity and non est in the eye of law and it can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings and here in the present case, it is an admitted position of fact that the order by the private respondent from the learned Assistant Collector has been obtained by fraud as material facts have been suppressed and incorrect information were provided with regard to the place of death of the father of the petitioner, which is also evident from the facts of case and the documents produced on record".

The Court was hearing writ petitions challenging orders of the Special Secretary, Revenue Department (SSRD).

The dispute concerns land at Village Kandoli, District Navsari, and Mutation Entry No.760, which was mutated on 09.06.1984. The land was the petitioner's father's self-acquired property. The father later settled in South Africa and died there in 1977, executing a Will in favour of the petitioner bequeathing him the land. Probate was obtained from the Bombay High Court, and the petitioner's siblings filed declarations waiving their rights in the land.

However, after the father's death, the respondents mutated the succession entry (Entry 760) in their favour and this was certified without notice to the petitioner, who was not in the country at the time. When the petitioner returned to India at the age of 65 in 2013, he learnt of the mutation, and initiated proceedings before the Assistant Collector, Navsari, challenging the entry.

The Assistant Collector dismissed the plea solely on the ground of delay, leading the petitioner to move a plea before the Collector, Navsari who allowed the same and quashed Entry No. 760.

The respondents then challenged the Collector's order before the SSRD, which remanded the matter back to the Collector for fresh consideration. Against this order of remand, the present writ petitions came to be filed by the petitioners.

Appearing for the petitioners, Advocate Mehul Sharad Shah argued that the respondents took advantage of the petitioners' absence from the country and mutated their names in the revenue records in 1984 on the basis of a “forged power of attorney” and usurped the property. He submitted that the petitioner had obtained probate from the Bombay High Court and was the lawful owner, and that the entry was certified “without issuing notice under Section 135D,” thereby violating mandatory procedure.

Section 135D(b)(ii) requires that upon completion of verification, notice shall be given to interested persons when land entries are mutated.

Opposing the petitions, AGP Jay Trivedi submitted that the orders of the revenue authorities were “just, legal and based upon sound principle of law” and did not warrant interference. He argued that there was an admitted “gross delay of more than 29 years” in challenging the mutation entry, and therefore, the Assistant Collector had rightly dismissed the appeal on the ground of delay. He further contended that the SSRD had correctly remanded the matter for fresh consideration and that no illegality had been committed in passing the impugned orders.

The High Court found that the respondents were not the direct heirs of the deceased owner and had secured the mutation by misrepresentation and suppression. The Court observed that “taking advantage of the absenteeism of the petitioner and other family members, the private respondents have entered their name in the revenue record by suppressing material facts and by declaring incorrect facts.” It further noted that the petitioner, being the beneficiary under a probated Will, was the lawful owner of the land.

Holding that the mutation was fraudulent, the Court ruled that such an order “cannot be said to be a judgment or order in law” and must be treated as void.

Furthermore, the revenue authority argued that the delay of nearly 3 decades in challenging the mutation was hit my limitation, barring the claims of the petitioners. However, the Court held that limitation would run from the date of knowledge of fraud, and not from the fraud itself. It observed that since the petitioner was residing abroad and came to know of the fraudulent entry only upon his return to India, “the cause of action has arisen from the said date,” and therefore, “it cannot be said that there is gross delay in challenging the said order.”

Relying on Supreme Court precedent, the Court emphasised that justice cannot be defeated on technical grounds and that “the authorities below ought not to have thrown out their case on the ground of delay.”

Accordingly, the Court quashed the revenue department's orders, restored the Collector's order cancelling Entry No.760, and directed restoration of the petitioner's name in the revenue entries.

The petition was allowed. 

Case Title: Suleiman Ahmed Minty v. State of Gujarat & Ors

Case No.: R/Special Civil Application No.15609 of 2016 with R/Special Civil Application No.15610 of 2016

Appearance: Mr. Mehul Sharad Shah for the Petitioner; Mr. Jay Trivedi, AGP for the State Authorities

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