Bombay High Court
Tikamdas S/O Sukhdevdas Vaishnao vs Circle Inspector (Mandal ... on 11 April, 2022
Bench: Manish Pitale
1/4 23.wp3860.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 3860 OF 2021
Tikamdas s/o Sukhdevdas Vaishnao
Vs.
Circle Inspector (Mandal Adhikari), Achalpur, District Amravati and Ors.
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr. P.R. Agrawal, Advocate for petitioner.
Mr. D.P. Thakare, Addl. GP for respondent/State.
CORAM : MANISH PITALE J.
DATE : 11.04.2022.
By this writ petition, the petitioner is
seeking direction for setting aside the remark
mentioned by the Circle Officer, Achalpur, in the
record of rights, whereby it is recorded that the
mutation entry taken by the Talathi, cannot be
certified for the reason that the Will Deed on which
the petitioner is placing reliance is not registered and
probate is also not obtained.
2. This Court issued notice on 28.03.2022 for
final disposal, returnable today. Mr. Thakare, learned
Additional Government Pleader appeared on behalf
of respondents and sought short adjournment. But,
since the position of law is squarely covered in favour
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of the petitioner, this Court inclined to dispose of the
writ petition on the admitted set of facts.
3. In the present case, the petitioner has
relied upon unregistered Will Deed dated 17.10.2017,
executed in his favour. On the strength of the said
Will, the petitioner applied for suitable mutation
entry in the record of rights, upon which the Talathi
issued notices as per the necessary procedure. The
notices were served. There was no objection raised by
any party. As a consequence, the Talathi took Entry
No.577 on the basis of the said Will in favour of the
petitioner. But, the Circle Officer by remark/entry
dated 05.05.2021 refused to certify the mutation
entry for the aforesaid reason i.e. the Will being
unregistered and the petitioner having failed to
obtain probate.
4. The petitioner has relied upon judgments
of this Court in support of his contention that the Will
is neither required to be registered, nor probate is
necessary, so long as the property is admittedly
situated in a place outside the original jurisdiction of
the Bombay High Court.
5. A perusal of the judgment of this Court in
the case of Kantabai Mahipat Sonavane Vs. Nimba
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Onkar Patil, 1999 (4) All.M.R. 263, shows that in the
aforesaid contention raised on behalf of the petitioner
is well fortified.
6. In fact, in the judgment of Bhagwanji
Karsanbhai Rathod Vs. Surajmal Anandraj Mehta,
2004 (1) Mh.L.J. 62, in similar circumstances, this
Court held thus:
"8. On conjoint reading of the above provisions, it
would appear that only Wills specified in Clauses (a)
and (b) of Section 57 of the Act would require the
executor or legatee to obtain probate/letters of
Administration from the court of competent
jurisdiction so as to pursue the right arising under the
will to its logical end. This legal position is reinforced
from the exposition of our High Court in Ahmed's case
(supra) as well as Jyoti's case (supra). Therefore, the
first question that needs to be considered is; whether
the subject will is covered by Section 57, Clauses (a)
and (b) of the Act? As mentioned earlier, it is not in
dispute that the suit property is situated at Pune and
the will was also executed at Pune. If that is so, it is
not possible to countenance the submission that
Section 57(a) and (b) of the Act would apply.
Understood thus, it was not necessary for the
Petitioner to obtain probate so as to proceed with the
execution proceedings."
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7. In the present case, admittedly the
property in question is situated beyond the original
jurisdiction of the Bombay High Court and therefore,
insistence upon obtaining a probate by the Circle
Officer was unjustified. It is settled law that Will Deed
is not mandatorily required to be registered.
Therefore, both the grounds on which the Circle
Officer refused to certify the mutation entry are
found to be unsustainable.
8. Accordingly, the writ petition is allowed.
The remark/entry made by the respondent No.1-
Circle Officer, Achalpur, dated 05.05.2021 is quashed
and set aside.
9. The respondent No.1 is directed to
consequently certify the aforesaid mutation entry
No.575 in favour of the petitioner within two weeks
from today.
JUDGE
Prity
Digitally signed
by PRITY S
GABHANE
PRITY S Date:
GABHANE 2022.04.12
18:53:14
+0530
