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2014 DIGILAW 820 (GUJ)

SHASHIBEN BACHUBHAI RANA v. .

2014-07-23

JAYANT M.PATEL, Z.K.SAIYED

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JUDGMENT JAYANT PATEL, J. 1. Draft amendment is allowed as prayed for. 2. Present appeal is directed against the judgment and order dated 29.04.2013 passed by the learned Principal Senior Civil Judge, Gadhinagar in Civil Misc. Application No.107 of 2009, whereby, the learned Judge has dismissed the application for probate. 3. The short facts of the case appear to be that the appellant-original applicant submitted application for probate under Indian Succession Act based on the “Will” executed by late Shri Atmaram Zaverbhai Patel who passed away on 27.08.2009. The aforesaid application was registered as Civil Misc. Application No.107 of 2009 before the learned Judge. The learned Judge directed for issuance of the public notice in the daily newspaper 'Sandesh' and it was so published on 14.01.2010. The public notice was ordered to be placed on the notice board of District Court; Collector Office, Gandhinagar and Mamlatdar Office. In response to any public notice, none filed objections. The appellant-applicant examined witnesses to show the genuineness of 'Will' and supporting documents were also produced. The learned Judge, thereafter, framed issues as to whether the applicant is entitled to get the probate under Section 222 of the Indian Succession Act or not? The learned Judge, thereafter, ultimately dismissed the application by the impugned judgment. Under the circumstances, present appeal before this Court. 4. We have heard Mr. Nilesh Shah, learned counsel appearing for the appellant-original applicant. The perusal of the order passed by the learned Judge shows that inspite of the findings recorded by him that the 'Will' is proved as genuine of the deceased Atmaram Zaverbhai Patel, he has rejected the application mainly on two grounds. One is that the properties, which are referred in the Will, are disputed properties and the title of the person, who executed the Will, could not be said as satisfactorily proved and another was that as per the decision of this Court in case of Minaxiben S. Patel vs. District Collector, Gandhinagar, 2007 (1) GLR 277 and another decision of the Apex Court in case of Clearance Paise & Others vs. Union of India, AIR 2001 SC 1151 , if the properties are located outside the presidential area, for a Will executed by Hindu, probate is not required. 5. In our considered view, the learned Judge has misdirected himself on the ground, which were not germane to the exercise of the power. 5. In our considered view, the learned Judge has misdirected himself on the ground, which were not germane to the exercise of the power. In a matter of issuance of probate, the prime requirement would be 'whether the Will of the deceased was proved or not'? If the Will is found to be proved and as per the contents of the Will, the person in whose favour bequeath is made, has applied for the probate of the Will, such can be granted unless the genuineness of the Will is doubted or any person affected by the Will may be the legal heirs of the executant of the Will or otherwise have raised any objections. If any objections are raised, in a given case, the Court may be required to be examined the aspect as to whether the Will is genuine or not? or the Court may further examine the aspect for the interse rights, if such arises out of Will. But in a case where no objections are filed by any of the person and the Will is proved, the person in whose favour the property is bequeathed or the administrator of the Will would be entitled to get the probate. 6. Apart from the above, on the second aspect, it appears to us that the learned Judge misdirected himself. It is true that as per the above referred two decisions; in case of Minaxiben S. Patel vs. District Collector, Gandhinagar (supra) as well as in case of Clearance Paise & Others vs. Union of India (supra), it may not be mandatory to get probate for a Will executed by Hindu in respect of the property situated outside the presidential area, but thereby, the Bar would not operate over the jurisdiction of the Court to issue probate. If any person who is beneficiary of the Will or any administrator of the Will is desirous to get probate voluntarily and the genuineness of the Will is proved before the Court and nobody has raised any objections, the application cannot be dismissed on the ground that it is not compulsory for the beneficiary of the Will to get the probate. 7. 7. In any case, once the Will was proved and nobody raised the objections, even if, the learned Judge has any doubt about the capacity of the executant of the Will in respect of any property referred to in the Will, he could have issued the probate certificate with the clarification that the title of the executant of the Will in the property shall not be get concluded by issuance of the probate. 8. In our view, the learned Judge has committed error in not considering the above referred aspects and has erroneously rejected the application. Hence, the impugned judgment and order deserved to be quashed and set aside. 9. In view of the aforesaid observation and discussion, the impugned judgment and order dated 29.04.2013 passed by the learned Principal Senior Civil Judge, Gadhinagar in Civil Misc. Application No.107 of 2009 is quashed and set aside with the direction that Civil Misc. Application No.107 of 2009 shall stand restored to the file of the learned Judge. Learned Civil Judge shall consider the matter in light of the observation made by this Court in the present judgment and shall pass appropriate orders, preferably, within three months from the receipt of the judgment of this Court. 10. The appeal is partly allowed to the aforesaid extent. No order as to cost. Record and proceedings shall be returned to the concerned Court. Appeal partly allowed.