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Gujarat High Court
Judgename :JAYANT PATEL
MINAXIBEN SHASHIKANTBHAI PATEL - Appellant
Versus
DIST.COLLECTOR - Respondent
SPECIAL CIVIL APPLICATION 19303 Of 2005
Decided On : 10/30/2006
Whether in the facts of the case mutation can be effected in pursuant to Will without obtaining probate.
Head Note :
Indian Succession Act, 1925 (Central Act 39 of 1925) - Sections 57, 57 Clauses (a) and (b) 213 and 213(1) and (2) - Will by a Hindu -Registered at Gandhinagar - Mutation in pursuance of Will - Rejection - Ground that probate is not obtained - Sustainability - According to the provisions of the Act if the Will is falling in the category of the Clauses other than Clause (a) and (b) of Section 57 of the Act the restoration as provided in Section 213(1) of the Act shall not operate - In view of the said legal position in the present case when disputed property is situated in Gandhinagar and is outside the territories of the original civil jurisdiction of the High Court of Bombay and property involved is situated in Gujarat out side the original civil jurisdiction of the High Court of Bombay or Madras or Calcutta even without probate rights acquired by the executor or legatee of Will can be established before the Court or before any other authority which in the present case is revenue authority - Hence the stand of District Collector insisting the probate for the Will in question cannot be sustained for the purposes of mutation - The impugned communication of District Collector set aside with directions.
Held :
As per Section 213 of the Indian Succession Act, the right as executor or legatee pursuant to the Will can be established in any Court of justice unless a Court of competent jurisdiction has granted probate of the said Will. However, Sub-section 2 of Section 213 provides that this section shall not apply to the Will made by Hindu, Buddhist or Sikh where such Wills are of the clauses specified in Clauses (a) & (b) of Section 57 of the Act. To say in other words, if the Will is falling in the category of the clauses other than Clauses (a) & (b) of Section 57 of the Act, the restriction as provided in Sub-section 1 of Section 213 of the Act shall not operate. [Para 6]
If he facts of the present case are considered in light of the above referred legal position, it cannot be disputed that the property is situated at Gandhinagar and is outside the territories of the original civil jurisdiction of the High Court of Bombay and the property is even otherwise is situated in Gujarat State, which is outside the original civil jurisdiction of the High Court of Bombay or Madras or Calcutta. Therefore, even without probate, the rights acquired by the executor or legatee of the Will can be established before the Court or before any other authority which in the present case is revenue authority. [Para 9]
Law Laid Down :
Probate Will not be required to be obtained by a Hindu in respect of a Will made outside those territories or regarding immovable properties situated outside as specified in Clause (a) and (b) of Section 57 of the Act.
Case Law Analysis :
Clerence Pais & Ors. vs. Union of India, 2001 SC 1151 [Para 7].-Followed
Conclusion :
In the facts of the case even without probate the rights acquired by the executor or legatee of the Will can be established before the Court or before any other authority which in the present case is revenue authority.
Decided in Favour of :
Appellant
Petition Allowed
Key Points: - The only legal question for consideration is whether probate is a compulsory requirement for establishing rights pursuant to a Will executed by a Hindu for property situated outside the original civil jurisdiction of the High Courts at Calcutta, Madras, and Mumbai. (!) - If a Will falls under clauses other than (a) and (b) of Section 57 of the Indian Succession Act, the restriction requiring probate to establish rights under Section 213 does not operate. (!) - Probate is not required to be obtained by a Hindu in respect of a Will made outside the specified territories or regarding immovable properties situated outside those territories. (!) (!) - Since the property in this case is situated in Gandhinagar, Gujarat, which is outside the original civil jurisdiction of the High Court of Bombay, rights acquired by the legatee can be established before the revenue authority even without probate. (!) - The stand of the District Collector insisting on obtaining probate before making a mutation entry is legally unsustainable and is set aside. (!) - The District Collector is directed to consider the matter for entering mutation based on the Will after following the procedure under Section 135(d) of the Bombay Land Revenue Code if rights are established. (!) - The petition was allowed, and the impugned communication of the District Collector was quashed. (!)
( 2 ) THE short facts of the case are that the petitioner is a housewife and her farther-in-law purchased the property in Gandhinagar (Gujarat State) bearing Plot No. 1319/1 at Sector No. 3b admeasuring about 90 Sq. Mtrs. The Registered Sale Deed is also executed by Ilaben Vivekchandra Desai in favour of the father-in-law of the petitioner Chandubhai Jivabhai Patel on 29. 03. 1996. The said document came to be registered vide No. 1160 with the Sub-Registrar, Gandhinagar and consequently, the father-in-law of the petitioner became owner of the property in question. It appears that the father-in-law of the petitioner Chandubhai Jivabhai Patel, executed a Will dated 03. 04. 2000, which also came to be registered with the Sub-Registrar, Gandhinagar vide No. 1619. It is the case of the petitioner that as per the said Will, the property is bequeathed to the petitioner, who is wife of Shashikantbhai Patel, the youngest son of the executant of the Will. The executant of the Will Chandubhai Jivabhai Patel since expired on 05. 07. 2000, the petitioner applied to the revenue authority, i. e. the District Collector for entering mutation on her name based on the Will dated 03. 04. 2000 of the deceased Chandubhai Jivabhai Patel. It is the case of the petitioner that the process was undertaken and during the course of the said process, the other legal heirs of the deceased Chandubhai Jivabhai Patel consented for mutation in favour of the petitioner. However, the District Collector by the impugned communication dated 30. 11. 2004 declined to consider the matter on the ground that the probate is not obtained of the Will and the matter will be considered after the probate is obtained and therefore, under these circumstances, the petitioner has approached to this Court by way of the present petition.
( 3 ) I have heard Mr. Brahmbhatt, learned counsel appearing for the petitioner, Mr. Mengdey, learned AGP for the respondent District Collector. As such, on the aspects of the existence of the Will, there is no dispute. Whether the Will is genuine or not is also not in dispute before this Court. Whether by the present Will, rights of the other legal heirs of the deceased are affected in any manner or not is also not an aspect, which is the subject matter of this petition. The only aspect, which arise for consideration is legality and validity of the stand taken by the District Collector for insistence of the probate before making mutation entry in the revenue record based the will of the deceased.
( 4 ) IN my view, as per the provisions of Section 57 of the Indian Succession Act, 1925 (hereinafter referred to as ?the Act?), the provisions of testamentary succession are applicable to the Will made by Hindu, subject to restriction and the modifications specified therein. The Will made by Hindu are differently classified qua the property situated within the territories, which were subject to the control of the Lieutenant-Governor of Bengal or within the local limits of the ordinary civil jurisdiction of the High Courts of Judicature at Madras and Bombay. Whereas, qua all other Wills made by Hindus, a separate clause is provided under clause (c) of the Section 57 of the Indian Succession Act.
( 5 ) AS per Section 213 of the Indian Succession Act, the right as executor or legatee pursuant to the Will can be established in any Cou
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