JUDGMENT :

Sunita Agarwal, J.

1. Two connected matters, viz., Special Civil Application No. 9792 of 2018 and Letters Patent Appeal No. 1012 of 2018 have been filed by Mr.Vinayakrao Shantilal Desai who has appeared in person ("Mr. V.S. Desai, party-in-person") to argue the matter.

2. The appeal has been presented on 11.06.2018 challenging the judgment and order dated 01.05.2018 passed by the learned Single Judge in Testamentary Petition No.1 of 2018, filed under Section 300 of the Indian Succession, 1925. The party-in-person, viz. Mr. V.S. Desai who is the original petitioner in the testamentary suit, sought probate of the 'Will' executed by him as Manager in the name of Ms. Shraddhaben Manjulal Majmudar, for her properties.

3. It may be noted that the original petitioner, party-in-person was appointed as the Manager of Ms.Shraddhaben under the Mental Health Act, 1987 (hereinafter referred to as "M.H. Act") by an order dated 11.04.2012 passed in Misc. Civil Application No. 79 of 2017 by the District Judge, Vadodara. There is no dispute about the fact that Ms.Shraddhaben was mentally ill person and treated as indoor patient at the hospital for mental health. She had died on 01.01.2018 at the age of 76 years. The Will-in-question was executed in her name during her lifetime on 23.02.2016.

4. Learned Single Judge taking note of Sections 54 to 59 of the M.H. Act, came to the conclusion that the Manager has no free hand to deal with the properties of the mentally ill person. He is subjected to control and supervision of the competent authority which is responsible for appointing him as manager for the properties of the mentally ill person. As per the provisions of Section 59 of the Indian Succession Act read with the provisions of M.H. Act, the manager appointed under the M.H. Act cannot execute the 'Will' to deal with the properties of a person who is a mentally ill person or a person not of sound mind. With these observations, it was held that the Will-in-question cannot be said to be a 'Will' executed by Ms. Shraddhaben and she cannot be said to be the testator of the 'Will'. The 'Will' executed by the Manager appointed under Section 54 of the M.H. Act, is not a Will in the eye of law. The Testamentary Petition has, thus, been dismissed holding that it cannot be entertained to consider the prayer for grant of probate in connection with the document appended to the petition called as 'Will'.

5. It may be noted that after dismissal of the Testamentary Petition by the judgment and order dated 01.05.2018 and presentation of the Letters Patent Appeal challenging the said decision of passed the learned Single Judge, the Special Civil Application No. 9792 of 2018 was presented on 20.06.2018 by Mr.V.S. Desai, party-in-person, Manager of Ms.Shraddhaben with the relief as under:-

a) to declare S.59, S.59's Explanation 4, and Explanation 4's words "or from illness" of the I. S. Act, 1925 vis-à-vis the mentally ill persons ineffective, ultra vires, void ab initio;

b) to duly quash the impugned provisions wholly or partly;

c) to grant such other reliefs as necessary in the case.

6. Pressing the writ petition and the appeal, the petitioner (party-in-person) would submit that sections 35 and 37 of the Gujarat Court of Wards Act, 1963, which requires approval of the Court of Wards to transfer or grant any charge on or interest in the property by a Government ward, also does not prohibit making of 'Will' by the Government ward. Proviso to section 37 of the Gujarat Court of Wards Act, 1963, rather facilitates making of 'Will' by providing that consent shall not be withheld unless the 'Will' is contrary to the personal or special law applicable to the Ward or it is likely to cause considerable pecuniary embarrassment to the property or lower considerably the influence or responsibility of the family in public estimation.

7. The contention, thus, is that there is no prohibition in the Gujarat Court of Wards Act, 1963, from making 'Will' of a mentally