Probate of a Will is not required for property mutation among family members when no legal notification necessitates it, as established by prior judgments.

JUDGMENT :

BISWANATH RATH, J.

1. The Writ Petition involves a challenge to the order of the Competent Authority, vide Mutation Case No. 5475 of 2021 as at Annexure-6.

2. This matter is taken up for final hearing on consent of parties, for their being involved a small question as to whether in consideration of mutation aspect based on an application involving the family members of the actual owner of the property based on a Will if at all require probate of Will?

3. Mr. Mohanty, learned counsel for the Petitioner taking this Court to a decision of this Court, in the case of Mana Khamari and another v. Smt. Malliphula Padhan (and after her) Sakhi Baida and others in First Appeal No. 106 of 1975 decided in 1979 draws the attention of this Court to the decision contended, the decision has a clear support to the case of the Petitioner and in opposition to the decision of the Tahasildar, vide Annexure-6. Mr. Mohanty, learned counsel for the Petitioner further contended, the Will involved therein relates to Bargarh district, a district carved out from Sambalpur district, above decision has clear application to the case at hand. Mr. Mohanty, learned counsel for the Petitioner in this regard also referred to a decision of this Court in the case of Siba Sankar Sahoo Vrs. State of Odisha & Ors. reported in 2022(II) OLR 1030. It is on premises of District -Sambalpur already protected from the rigor of probate of Will, Mr. Mohanty, learned counsel for the Petitioner contended that the Will involved herein created in the district of Jharsuguda which is a district carved out from District-Sambalpur. On the premises, the decisions referred to herein above are applying to the case at hand, Mr. Mohanty, learned Counsel for the Petitioner claims allowing the Writ Petition.

4. Mr. Mishra, learned Additional Standing Counsel however attempting to justify the impugned order submits, there may not be any dispute that Sambalpur is already a district notified requiring no probate of Will but districts carved out are yet to get any special notification in this regard. It is in above view of the matter, Mr. Mishra, learned Additional Standing Counsel objects to the entertainability of the Writ Petition in the justification of the impugned order involved herein. There is however no dispute on the settled position of law and referred to herein.

5. Hearing the Counsel for the Parties, this Court finds, there is no dispute that the impugned order in Mutation Case No. 5475 of 2021 of the Tahasildar, Jharsuguda vide Annexure-6 involved a rejection of request on Mutation Application by the family members of the owners of the property involved but however on the basis of creation of Will making out a case for Mutation of the Property in favour of the person desired to be owning the property by the testator.

6. It is at this stage of the matter, this Court going through a judgment of this Court, in the case of Sariamani Hota and others Vrs. State of Orissa and others reported in (2011) 112 CLT 756 the High Court has the following view through Paragraphs- 9 and 13 therein:-

“9. Law is well settled that the registration of the Will is not necessary. The Apex Court in the case of Ishwardeo Narain Singh v. Smt. Kamta Devi and others MANU/SC/0125/1953 : AIR 1954 SC 280 at paragraph-4 has held that there is nothing in law which requires the registration of a Will and Wills are in a majority of cases not registered at all. To draw any interference against the genuineness of the Will on the ground of its non-registration appears to be wholly unwarranted.

13. This Court in the case of Sailabala Satpathy v. Parbati Satpathy and others 2008(I) OLR 729 has held that on reading of Sections 57 , 213(1), (2) and