MINAXIBEN SHASHIKANTBHAI PATEL Vs. DIST COLLECTOR

JUDGEMENT

(1.) The only question, which arise for consideration of this Court in the present petition is whether for a Will executed by a Hindu qua the property situated outside the original civil jurisdiction of the High Court at Calcutta, Madras and Mumbai, the probate is a compulsory requirement for establishing the rights pursuant to the will or not? In the present case, it is an admitted position that property is situated at Gandhinagar and therefore, the incidental question which may be required to be considered by the Court is whether probate for such will is necessary requirement for claiming any right under the said will or not?

(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.