KOTHARI, J.

Misapplying of decision in Minaxiben Shashikantbhai Patel v. Dist. Collector, Gandhinagar, 2007(1) GLR 277, has led the learned Additional Senior Civil Judge, Gondal, to dismiss the application for obtaining probate of Will by holding that, “In view of the said decision, it is not necessary for the applicants to incur expenditure for obtaining probate of Will. Hence, the application is rejected”.

2. The short facts are thus:

The appellants-applicants had filed Misc. Civil Application No. 28/2011 in the Court of learned Additional Senior Civil Judge, Gondal, praying for grant of probate of the Will made on 14.07.2001 by Maharajkumar Late Shri Shivrajsinhji Bhojrajsinhji Jadeja, who died on 3.2.2011 at Gondal. Along with the Will, the applicants have produced a detailed Schedule showing various properties of the deceased. The applicants had filed the application for obtaining probate in the capacity of executors of the Will.

Upon filing of the application, necessary formalities were carried out by the Court, viz. issuance of Public Notice in the newspaper inviting objections, if any, from the public. No objection was received by the Court from the public. The applicants had filed an affidavit (Exh.24) and also other two affidavits (Exhs. 22 & 23) supporting the applicant’s affidavit (Exh.24). The learned trial Court has come to the conclusion that the Will appears to be genuine. It has also recorded a conclusion that the applicants have duly proved the Will. Thereafter, it says, “This Court is unable to grant probate of the Will to the applicants, as sought for by them, as the same is not necessary”.

In support of this conclusion, the learned trial Court, in his short order, has referred to and relied upon the decision in the case of Minaxiben Shashikantbhai Patel (supra).

3. Heard learned advocate Mr. B.B. Gogia for the appellants.

4. Learned advocate Mr. Gogia, after referring the facts of the case, has submitted that uncontested application of the applicants appellants came to be rejected on the sole ground that the applicants are not required to obtain probate and the applicants need not incur unnecessary expenditure. The learned advocate has also drawn attention of the Court to the order passed by the learned Additional District Judge, Gondal.

5. The appellants – applicants carried the appeal before the District Court, Gondal by filing Misc. Civil Appeal No. 14/2012 against the order of rejection of the application by the learned Additional Senior Civil Judge, Gondal. The learned 4th Additional District Judge, Gondal was pleased to return the appeal memo under Order 7 Rule 10 CPC by holding that in view of the Gujarat Civil Courts Act, 2005 when the value of subject matter exceeds Rs. 5,00,000/(Rupees Five Lacs), the appeal would lay only before the High Court. That is how, the applicants are before this Court.

6. In Minaxiben Shashikantbhai Patel’s case (supra), the applicants had applied to the District Collector for mutation of entry in her name. This application was based on the Will. The District Collector rejected the application on the ground that the applicants had not produced the Probate. In this context, the Court has held that where the executors of the Wills are Hindus and the Wills relate to immovable properties situated outside the cities of Calcutta, Madras and Bombay, probate is not required for establishing title to immovable property.

7. In Minaxiben Shashikantbhai Patel’s case (supra), the Court has concluded thus:

“Therefore, in view of the aforesaid legal position, for a Will executed by a Hindu qua the immovable property situated outside the territory of original civil jurisdiction of High Court of Bombay and Madras, the probate is not compulsory for establishing the rights in the property. As the property in the present case is situated in Gandhinagar, even without probate the legatee who is the petitioner in the present case can establish the rights pursuant to the Will executed by decea