JUDGMENT : ANANT S. DAVE, J. 1. The challenge in this appeal under Clause 15 of the Letters Patent is to oral order dated 22.10.2018 rendered by learned Single Judge in Special Civil Application No.15563/2013, whereby the challenge to the order dated 08.08.2013 passed by the revisional authority – the Additional Secretary (Appeals), Revenue Department, Government of Gujarat, in Revision Application No.51/2013, came to be negatived. 2. Learned Single Judge noticed that writ petitioners and respondents No.5 to 7 were brothers and sisters. A translated version of the order dated 08.08.2013 passed by the revisional authority was produced in Paragraph-2 of the order passed in writ petition, which reads as under : “2. The writ-applicants and the respondents Nos. 5, 6 and 7 are brothers and sisters. The impugned order passed by the SSRD reads as under: “(4) The revision application of the applicant, written submissions of the learned advocates for the parties and order of the Collector and case papers were carefully perused. The land bearing survey no. 96, situated at moje Bakratpur, Taluka Patan, is registered in the name of Mali Karshanbhai Mohanbhai, etc. Out of the aforesaid land, he gave 90% share to Rami Pravinkumar Karshanbhai i.e. applicant of this case and 10% share to Rami Geetaben Karshanbhai i.e. respondent no. 2 of this case by way of the Will. Therefore, entry no. 1029 was mutated in the record of the right in respect of the said Will on 05/08/2011. As objection application was received against the said entry, Mamlatdar, Patan, registered mutation entry no. 1029 in the dispute register and issued show-cause notice to the interested parties and heard their submissions. Accordingly, taking action as per rules, he has decided to cancel mutation entry no. 1029 vide his order no. RTS/Case No. 140/11 dated 18/01/2012. Being aggrieved by impugned order dated 18/01/2012 of Mamlatdar, Patan, the applicant Mr. Rami Pravinkumar Karshanbhai preferred appeal before the Deputy Collector under Rule 108(5) of Gujarat Land Revenue Rules, 1972. The Assistant Collector, Patan, has passed his order no. RTS/Case No. 37/12 dated 07/05/2012 rejecting appeal. Being aggrieved by order dated 07/05/2012 of Assistant Collector, Patan, applicant Mr. Rami Pravinkumar Karshanbhai filed revision petition before the Collector, Patan under Rule 108(6) of the Gujarat Land Revenue Rules, 1972. The Collector, Patan, has passed his impugned order rejecting revision petition. The Assistant Collector, Patan, has passed his order no. RTS/Case No. 37/12 dated 07/05/2012 rejecting appeal. Being aggrieved by order dated 07/05/2012 of Assistant Collector, Patan, applicant Mr. Rami Pravinkumar Karshanbhai filed revision petition before the Collector, Patan under Rule 108(6) of the Gujarat Land Revenue Rules, 1972. The Collector, Patan, has passed his impugned order rejecting revision petition. Being aggrieved by the impugned order dated 30/03/2013 of the Collector, Patan, applicant Mr. Pravinkumar Karshanbhai Rami has filed present revision petition under Rule 108(6-A) of the Gujarat Land Revenue Rules, 1972. Upon perusal of case papers of the lower Court and order of the Collector, it appears that the land bearing survey no. 96, account no. 279 in the village form no. 8/A, situated at moje Bakratpura, Taluka Patan was registered in the name of Mali Karshanbhai Mohanbhai, etc. He has executed the Will in the presence of two witnesses at sr. no. 860 before the Notary on 20/03/2011. As per the said Will, agricultural land bearing survey no. 715/P/1 admeasuring hec. 2-37-75 are and survey no. 102 admeasuring hec. 3-45-00 are, situated at moje Ved, Taluka Sami is self-acquired property of Karshanbhai Mohanbhai, who executed the Will. The said agricultural land has been given to the applicant Pravinkumar Karshanbhai and respondent Bharatbhai Karshanbhai on half sharing basis by way of the Will. The agricultural land bearing survey no. 96, admeasuring hec. 1- 70-05 are, situated at moje Bakratpura, Taluka Patan is self acquired property of the person, who executed the Will. Out of the said land, 90% agricultural land has been given to the applicant and 10% agricultural land has been given to Bharatbhai Karshanbhai by way of the Will. Moreover, the right of 82.69.07 sq.m. Of Tika No. 5/1, City Survey No. 294, Municipal Census No. 3/7/13 and 3/6/43 of both storeys and right of 6.44.75 sq.m. Out of open land for the way along with right of undistributed ownership of Tika No. 5/1, City Survey No. 237 and right of enjoyment of permanent way of Tika No. 5/1, City Survey No.238 paiki, situated in Golsheri in Patan City have been given. The aforesaid house has been given to the applicant alone by way of the Will. Karshanbhai Mohanbhai Rami, who executed the Will, has died on 13/04/2011. The date of the Will has been shown as 20/03/2011. The aforesaid house has been given to the applicant alone by way of the Will. Karshanbhai Mohanbhai Rami, who executed the Will, has died on 13/04/2011. The date of the Will has been shown as 20/03/2011. It appears that the Will was executed 24 days before the death. The Assistant Collector has observed that parties should approach Civil Court to verify legality of the Will on the basis of the Will. The Civil Court has power to decide the genuineness of the Will, but no question arises to reject the mutation entry made based on the Will because father has given his self acquired property to his legal heirs by way of the Will in the impugned case. There is blood relation between son and father. The property has not been transferred to the third person by way of the Will. The Will has been registered before the Notary in the presence of two witnesses. It is not compulsory to register the Will. As per section 17 of the Indian Registration Act, 1906, the Will has been exempted from the compulsory registration. The Civil Court has power to decide as to whether the Will bears genuine signature or not and whether the Will is genuine or fake. It is not necessary to obtain probate based on the Will in Gujarat State because as per the judgement of the Supreme Court, Gujarat State has been excluded from obtaining probate based on the Will executed in respect of immovable property. The Revenue Court does not have power to decide legality of the Will. Therefore, Revenue Court cannot raise any doubt in respect of the Will. Therefore, as decision of Mamlatdar to cancel mutation entry in respect of the Will after registering the same in the dispute register based on the objection application is prima facie inappropriate and erroneous, the same deserves to be cancelled. As per the judgement delivered by Hon’ble Gujarat High Court in SCA No.19303/2005, it is not necessary to obtain probate in respect of the Will in Gujarat State. Looking to the facts of the judgement, as per section 57 and 213 of the Hindu Succession Act, 1925, exemption has been granted in respect of obtaining probate regarding immovable property situated outside Kolkata, Chennai, Mumbai. Looking to the facts of the judgement, as per section 57 and 213 of the Hindu Succession Act, 1925, exemption has been granted in respect of obtaining probate regarding immovable property situated outside Kolkata, Chennai, Mumbai. The Hon’ble Gujarat High Court has delivered judgement in the case of Minaxiben Shashikantbhai Patel V/s. District Collector, Gandhinagar citing the judgement reported in A.I.R., 2001, S.C., 1151. The said judgement has been reported in 2007 (1), G.L.R., Page No. 277. The details of the aforesaid judgment are applicable to the impugned case. Therefore, as orders of the lower Court are erroneous, they prima facie deserve to be cancelled. No question arises to reject or cancel mutation entry no. 1029, which was made on the basis of the Will. Therefore, as mutation entry no. 1029 deserves to be granted/restored after setting aside the order of Mamlatdar, Patan passed in connection with dispute register, Mamlatdar is directed to take action accordingly. The suits have been instituted in the Civil Court by the parties in respect of the Will, which have not been decided finally. The final decision of the Civil Court in the pending suits shall be binding on both parties. Therefore, accepting grounds of Revision Application of the applicant and written submissions of his learned advocate, the Revision Application is granted and the order of Assistant Collector, Patan and the Collector, Patan is set aside and the following order is passed.” 3. So far as Will dated 20.03.2011, executed by Karsanbhai Mohanbhai Rami is concerned, same was duly notarized and attested by two witnesses. Based on the above, the concerned Mamlatdar, Deputy Collector and Collector had taken a view that in view of suspicious circumstances as regards execution of the Will, the names of the persons in whose favour the land has been bequeathed, Will cannot be mutated in the revenue records. However, the revisional authority reversed such findings since the Will was legal and valid one and there was no reason or justification for subordinate revenue authorities to create a gloss over such execution and accordingly ordered entry to be mutated in the revenue records regarding the Will. 4. It may be noted at this stage that the father of the appellants and respondents No.5 to 7 bequeathed various properties in favour of his children. 4. It may be noted at this stage that the father of the appellants and respondents No.5 to 7 bequeathed various properties in favour of his children. However, one of the properties bearing Revenue Survey No.96 situated at Village Ved, Taluka: Sami, District: Patan, has been bequeathed in favour of respondents No.5 and 6 only, excluding the appellants from the said property, which is the subject-matter of challenge. 5. Learned Single Judge after considering the material on record came to the conclusion that the order passed by revisional authority cannot be said to be erroneous and if the petitioners had anything to say with regard to genuineness of the Will or intend to assert their own right, title and interest on the land in question, they need to file a civil suit before the competent Civil Court and seek a declaration in that regard, and dismissed the writ petition. 6. Mr. S.P. Majmudar, learned advocate for the appellants would contend that learned Single Judge committed an error inasmuch the circumstances about execution of Will were found to be suspicious by the revenue authorities and further, the other authorities had discarded the claim of beneficiaries of the Will, therefore, the order passed by revisional authority ought to have been quashed and set aside. Further, when the legatees of the Will preferred an application seeking probate, it came to be dismissed and therefore, the genuineness of the Will remained in arena of doubt. It is submitted that when concurrent findings were arrived at by Mamlatdar, Deputy Collector and District Collector, there was no justification to interfere with the orders by the revisional authority and particularly, when the Will in question was executed only twenty-four days prior to the death of the father of the appellants. 7. In support of his submissions, reliance is placed by learned advocate for the appellants on decisions of this Court in the case of Babubhai Mervanbhai Patel v. State of Gujarat & Anr. - Special Civil Application No.13154/2009 (decided on 16.12.2009) and in the case of Ratilal Chunilal Solanki & Ors. v. Shantilal Chunilal Solanki & Ors. – 1996 (1) GLH 816 . 8. In the case of Babubhai Mervanbhai Patel v. State of Gujarat & Anr. - Special Civil Application No.13154/2009 (decided on 16.12.2009) and in the case of Ratilal Chunilal Solanki & Ors. v. Shantilal Chunilal Solanki & Ors. – 1996 (1) GLH 816 . 8. In the case of Babubhai Mervanbhai Patel v. State of Gujarat & Anr. (supra), it is held that “only in a case where the petitioner has proved the Will, then and then only further question as to whether transfer in favour of the petitioner on the basis of such a Will is hit by Section 43 of the Bombay Tenancy and Agricultural Lands Act or not is required to be considered”. Based on above observations, it is the case on behalf of the appellants that since no such exercise was undertaken to prove genuineness, legality and validity of the Will, the order passed by the revisional authority and confirmed by learned Single Judge in exercise of power under Articles 226 and 227 of the Constitution of India deserves to be quashed and set aside. 9. In the case of Ratilal Chunilal Solanki & Ors. v. Shantilal Chunilal Solanki & Ors. (supra) relied upon by learned advocate for the appellants, mutation of entries on the basis of Will was disputed and it was held that the authorities had transgressed their jurisdiction. In the said judgment, decision in the case of Mohd. Yunus v. Mohd. Mustaquim – AIR 1984 SC 38 , was also referred to and distinguished to the effect that when an order is without authority or jurisdiction, it can certainly be interfered with in a petition under Article 227 of the Constitution. 10. It is not in dispute that the application seeking probate filed before the Competent Authority was admittedly not decided on merits and was dismissed for non-prosecution. Hence, the legality and validity of the Will in question was never the subject-matter of any litigation and the same has never been examined. However, the Will was notarised and signed by two witnesses and merely because it was executed twenty-four days prior to death of executioner, unless challenged, established and proved in a Court of law, no presumption could be drawn about the legality and validity of the Will. 11. However, the Will was notarised and signed by two witnesses and merely because it was executed twenty-four days prior to death of executioner, unless challenged, established and proved in a Court of law, no presumption could be drawn about the legality and validity of the Will. 11. In Babubhai Mervanbhai Patel v. State of Gujarat & Anr.(supra), heavily relied by learned advocate for the appellants, lands were transferred in favour of the petitioner by one Kashiben who had executed Will and based on the above, proceedings under Section 84(C) of the Bombay Tenancy and Agricultural Lands Act were initiated against the petitioner for breach of Section 43 of the said Act by concerned Mamlatdar and ALT and the matter reached the High Court. In the above context, learned Single Judge referred to earlier judgment and order dated 24.09.2004 in Special Civil Application No.9641/1993 and quoted a paragraph which clearly notices that Will is not an instrument of transfer of property by sale, gift, exchange, mortgage, lease or assignment nor is it an agreement. That there is a devolution of interest of deceased by succession in the nominated persons under a Will and not transfer of interest of a person in any of the modes of transfer prescribed under the said provision, which all relate to transfer inter vivos. It was held that neither Section 43 nor Section 63 of the Act envisage prior permission of the authorities for executing a Will that would take effect after the death of a person, which he has a right to vary, cancel or modify any time before his death as many times as the testator desires. The above aspect was not taken care of by the Tribunal and it proceeded to rely on a copy of the Will which was shown to it on the basis of which the petitioner was claiming his rights. In such factual scenario, it was held in Special Civil Application No.9641/1993 that unless the Will is proved to be legal and valid, no reliance could be placed by revenue authorities thereupon and it was first required to be seen whether the petitioner was able to establish the Will in accordance with law and whether there was any acquisition of land made which can be said to be invalid under the provisions of the said Act. 12. 12. Insofar as the decision in the case of Ratilal Chunilal Solanki & Ors. v. Shantilal Chunilal Solanki & Ors. (supra) relied upon by learned advocate for the appellants is concerned, on the contrary it lays down that mutation proceedings cannot be converted into proceedings for deciding question of title which can lie only before the competent Civil Court. A Will, as such, cannot be regarded as an instrument of transfer of property by sale, gift, exchange, mortgage, lease or assignment nor is it an agreement and any entry mutated in the revenue record based on the Will is for fiscal purpose and cannot be said to be determining any right, title or interest over the subject-land. 13. In Mahadeo (dead through legal representatives) Vs. Shakuntalabai, reported in (2017) 13 SCC 756 , the Hon'ble Apex Court has observed in Paragraph-5 that “..... In fact, in view of the decision of this Court in State of W.B. v. Kailash Chandra Kapur, devolution of property by way of a will does not amount to a transfer of the property. This is clear from para 12 of the aforesaid decision wherein it has been observed that transfer connotes, normally, between two living person during life. However, a will takes effect after demise of the testator and transfer in that perspective becomes incongruous.” Thus, Will is only a devolution of interest and cannot be said to be a transfer as restricted under the provisions of the Tenancy Act and when such mutation has taken place or devolution of interest in favour of legatee based on Will executed by Testator is there, even breach of conditions imposed or restrictions prescribed under the provisions of Tenancy Act were held to be not violative. 14. 14. Considering the above and in the facts and circumstances of the case, what is held and observed by learned Single Judge in Paragraph-6 of the judgment, in the background of the fact that respondent No.5 also applied for probate on the strength of the Will but such proceedings were dismissed for default, namely, that no error of law can be said to have been committed by revisional authority in passing the order and that if the writ petitioners have anything to say with regard to genuineness of the Will or if they are asserting their own right, title or interest on the land in question, they need to file a civil suit before a competent Civil Court seeking declaration in that regard, cannot be said to be erroneous. 15. In light of the above discussion, we do not find any merit in the appeal. It is, accordingly, dismissed. Civil Application for interim relief, in view of dismissal of appeal, also stands dismissed.