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CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 15831 OF 2022
Parshuram Govind Patil ...Petitioner
Mr. A. I. Patel, Add. GP a/w. Ms. M. S. Bane, AGP for Respondent No.1-
State.
Mr. Rohit Sakhadeo for Respondent No.2-CIDCO.
Ms. Deepa Punde i/b. Mr. Sachin Punde for Respondent Nos. 3 to 5, 6A to
6D, 9, 10, 11 and 13.
Ms Kirthika i/b. Mr. Ajay Joshi for the Respondent Nos. 7A to 7G
JUDGMENT
1. Heard learned Counsel for the Petitioner and learned Counsel for the Respondents.
2. By this Petition the Petitioner is seeking quashing of impugned communication dated 11/07/2019 issued by the Respondent No. 2 i.e. Chief Land and Survey Officer of the City and Industrial Development Corporation of Maharashtra Ltd. (CIDCO) whereby the Petitioner has been called upon to submit probate of will executed by the father of the Petitioner, on the basis of which the Petitioner claims right to developed plots as per the scheme of CIDCO. The said scheme stipulates that developed plots to the extent of 12.5% of the acquired land would be made available to the original landowners, in addition to the compensation amount paid to them. It is the case of the Petitioner that as per the subject will dated 23/06/1997 the Petitioner is entitled to the benefit under the said scheme, which otherwise was a benefit accruing to his deceased father.
3. The Petitioner is also challenging the policy of Respondent No. 2- CIDCO, particularly condition L(ii) thereof, which stipulates the requirement of producing the probate of will in order to take benefit of scheme of the Respondent No. 2-CIDCO.
4. Reply affidavits have been filed on behalf of Respondent No. 2- CIDCO as well as private parties. The private parties to this Writ Petition are sisters, brothers and other family members of the Petitioner. They have been added as parties, since they had filed a Suit in a Civil Court for partition and separate possession of properties, wherein the Petitioner had set up the said will. It is an admitted position that the said Suit was dismissed for non-prosecution. It is submitted on behalf of the Petitioner that by way the abundant caution the relatives have been added as Respondents in this Petition.
5. Mr. Gorwadkar, learned Senior Counsel appearing for the Petitioner submitted that the short question that arises for consideration in this Petition is, as to whether a body like CIDCO, which is a Corporation and an agency and instrumentality of the State Government of Maharashtra can adopt a policy in the teeth of the provisions of law, particularly when the position of law is expounded and clarified by judgments of this Court. It is submitted that a bare reading of Sections 57 and 213 of the Indian Succession Act, 1925, shows that the requirement of probate in the facts and circumstances of the present case cannot be insisted upon. This is because the subject will, upon which the Petitioner relies, was executed in Panvel, outside the original jurisdiction of this High Court and the property in question in lieu of which the developed plots are to be allotted was also located beyond the original jurisdiction of this High Court. It was submitted that therefore, there is no requirement for the Petitioner to obtain probate of the subject will, even according to the position of law as it stood when the said will was executed and the instant Petition was filed. In this connection, reliance is specifically placed on judgment of learned Single Judge of this Court in case of Vishnu Ramchandra Undage versus Ganpati Ramchandra Undage and Others [2006 (2) ALL MR 204].
6. It is further submitted that the policy of CIDCO manifested in Clause L(ii) of the document at Exhibit-A shows that despite the law not insisting upon the Petitioner obtaining a probate for the subject will, the said condition is insisted upon, asking the Petitioner to produce such probate. It is further submitted that the said condition of the policy refers to leasehold rights and transfer thereof, while the present case is really concerned with the allotment of developed plots as per the 12.5% scheme of CIDCO. Hence, the condition can strictly not be said to be applicable to the facts and circumstances of present case. The learned Senior Counsel further relied upon the requirement under the said policy for the allottee to submit indemnity bond and affidavit-cum-undertaking, thereby indemnifying CIDCO from any dispute that may arise with regard to the allotment. It was submitted that this was sufficient protection and safeguard within the policy, thereby indicating that condition L(ii) in the policy ought not to be insisted upon.
7. It was further brought to the notice of this Court that a recent development completely takes the wind out of the stand taken by CIDCO. By the Repealing and Amending Act of 2025, published in the official gazette on 20/12/2025, section 213 of the Indian Succession Act, 1925, has been omitted along with its references in other provisions of the said Act.
8. On this basis, it was submitted that, without prejudice to the first contention raised on behalf of Petitioner that even under the provisions of the Indian Succession Act as they existed the Petitioner was not required to produce probate of will, now with the deletion of Section 213 from the Indian Succession Act itself, there is no question of any requirement to produce probate of will. On this basis, it was submitted that the Petition ought to be allowed.
9. As regards the private Respondents, being relatives of the Petitioner, taking objection to the relief sought in the present Petition, it was submitted that admittedly the suit filed by them alongwith others was dismissed for want of prosecution. As on today, there is no pending litigation and merely because some of the Respondents have expressed their intent to move for reviving the said suit, in itself cannot be a ground for depriving the Petitioner of relief in the present Petition.
10. On the other hand, Mr. Sakhadeo, learned Counsel appearing for Respondent No. 2-CIDCO submitted that the Petition ought not to be allowed for the reason that probate as a concept has not been abolished in India. It was submitted that the Court ought to appreciate the said policy from the standpoint of CIDCO, which may be faced with situations where competing claims are raised by parties, particularly members of the same family and in some cases by setting up such a will. It was submitted that therefore, insistence on probate can be said to be a safeguard for CIDCO and since producing probate for Will, cannot result in any harm to the Petitioner, this Court may not interfere with the policy while exercising writ jurisdiction.
11. It was submitted that the disputes raised by parties in the context of allotment of developed plots under the 12.5% scheme leads to delay in administration of CIDCO and proper allotment and utilization of the developed plots, thereby indicating that the policy including the aforesaid condition needs to be sustained.
12. It was further submitted that the indemnity bond and affidavit on undertaking to be given by the allottee/claimant cannot be said to be sufficient protection or safeguard for CIDCO and therefore, this Court may not allow the Writ Petition. It was submitted that very fact that some of the Respondents, being relatives of the Petitioner, even before this Court have indicated their opposition to the prayer made in the Writ Petition, demonstrates sufficient ground for not entertaining the Petition. On this basis, it was submitted that the Writ Petition may be dismissed.
13. Ms Punde, learned Counsel appearing for Respondent Nos. 3 to 5, 6A to 6D, 9, 10, 11 and 13 submitted that the aforesaid Respondents intend to take necessary steps for revival of the Suit that was dismissed for non-prosecution. Therefore the resistance to the said will may be taken note of by this Court. Ms. Kirthika, learned Counsel appearing for the Respondent Nos. 7A to 7G took a similar stand.
14. We have considered rival submissions.
15. The issue that arises for consideration before this Court is, whether CIDCO, which is an agency and instrumentality of the State, can incorporate a condition in its policy, which insists on an act to be done, which the law of the land does not require.
16. The subject condition is L(ii) of the policy. The document is placed on record at Exhibit-A. It refers to the requirement of producing probate of will in cases where leasehold rights are transferred to successors. One objection raised on behalf of the Petitioner is that the benefit claimed by the Petitioner is about allotment of developed plots under the 12.5% scheme of CIDCO and this is not a case of transfer of leasehold rights already obtained by the predecessor.
17. We are not inclined to accept the said submission, simply for the reason that eventually when the developed plots are allotted under the 12.5% scheme of CIDCO, they would be in the form of leasehold rights in the plots. Nothing much would turn on the said aspect of the matter.
18. But, the objection raised on behalf of the Petitioner, by referring to the relevant provisions of the Indian Succession Act, indeed deserves serious consideration. Sections 57 and 213 of the Indian Succession Act are relevant and they read as follows:
57. Application of certain provisions of Part to a class of wills made by Hindus, etc.- The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply- (a) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant- Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and (b) to all such wills and codicils made outside those territories and limits so far as relates to immoveable property situate within those territories or limits;
(c) to all wills and codicils made by any Hindu, Buddhist, Sikh or
Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b): Provided that marriage shall not revoke any such will or codicil.
213. Right as executor or legatee when established.- (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed. (2) This section shall not apply in the case of wills made by Muhammadans or Indian Christians and shall only apply--
(i) in the case of wills made by any Hindu, Buddhist, Sikh or
(ii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962, (16 of 1962.) where such wills are made within the local limits of the ordinary original civil jurisdiction of the High Courts at Calcutta, Madras and Bombay, and where such wills are made outside those limits, in so far as they relate to immovable property situate within those limits.
19. A bare reading of the above the quoted provisions shows that the right of an executor or legatee under a will would be established in the case of a Hindu, upon obtaining probate, but the above quoted provisions clearly specify the conditions in which probate would be mandatorily required. A bare perusal of the said provision makes it evident that when neither the will is executed within the original jurisdiction of this High Court nor is the property located within its jurisdiction, mandatorily obtaining probate cannot be insisted upon.
20. In the present case, there is no dispute about these two facts. It is an admitted position that the will was executed outside the original jurisdiction of this High Court and the subject property was also located outside. Therefore, the law as it stood when the writ petition was filed clearly indicates that in the facts of the present case, obtaining probate was not a mandatory requirement.
21. Although a bare perusal of the above quoted provisions is enough to reach the said conclusion, the judgment of the learned Single Judge of this Court in the aforementioned case of Vishnu Ramchandra Undage (Supra) clearly supports the contention raised on behalf of the Petitioner. After referring to the aforesaid provisions, in paragraphs 12 and 13 of the said judgment, it was held as follows:
12. A conjoint reading of these two sections indicate that ordinarily no right as executor or legatee can be established unless a Court of competent jurisdiction grants probate of the Will. However, this requirement is not present in the case of Wills made by Muslims or Indian Christians. But it applies in cases of Wills made by Hindus where such Wills are covered by clauses (a) and (b) of Section 57. Those Wills which fall outside clauses (a) and (b) of Section 57 will not require probate.
13. Clause (a) covers cases of Wills or codicils made by any Hindu, Buddhist, Sikh or Jain on or after 1-9-1870 within the territories which at the said date were within the local limits of the ordinary original civil jurisdiction of this Court. Clause (b) covers cases where Wills and codicils are made outside the local limits of the ordinary original civil jurisdiction of this Court so far as they relate to immovable property situate within the said limits i.e. the limits of the ordinary original civil jurisdiction of this Court. Therefore, Wills in respect of property situate outside the limits of the ordinary original civil jurisdiction of this Court would not require probate.
22. Hence, we are the opinion that there was no mandatory requirement in law at the point of time even when the Writ Petition was filed, for the Petitioner to obtain a probate to enjoy the benefits under the subject will.
23. As noted herein above, the Repealing and Amending Act of 2025, published in the official gazette on 20/12/2025, deletes Section 213 from the Indian Succession Act alongwith its references in certain provisions. Thus, even with regard to cases which were covered under section 213 of the Indian Succession Act, mandatorily requiring production of probate in respect of a will, such requirement has been deleted from the statute. This certainly lends support to the contention raised on behalf of the Petitioner that the law of the land does not mandatorily require obtaining a probate in respect of a will.
24. This being the position, we are inclined to accept the contention raised on behalf of the Petitioner that policy of an agency and instrumentality of the State, like the Respondent No. 2-CIDCO cannot incorporate a mandatory condition for benefit of its schemes, which condition is not a mandatory requirement under the law of the land. On this short ground, the condition deserves to be struck down and consequently the impugned letter dated 11/07/2019, also deserves to be quashed.
25. As regards the other contention raised on behalf of Respondent NO. 2-CIDCO, we are of the opinion that merely because it is claimed that probate as a concept has not been abolished, the Respondent No. 2-CIDCO can insist upon such a condition, cannot be accepted. This is because CIDCO while incorporating such a condition in its policy gives it a mandatory flavour for the reason that in the absence of production of probate, the claimant stands deprived of the benefit of such schemes. We are unable to accept the aforesaid contention raised on behalf of CIDCO.
26. The argument made on behalf of CIDCO that such a condition is a ‘safeguard’ can also not be accepted. An apprehension is raised to the effect that when members of a family are competing claimants, for benefits under the schemes of CIDCO, it leads to unnecessary disputes and delay in administration. The simple answer is that nothing prevents CIDCO, when such disputes arise to ask the parties to take steps in accordance with law. It cannot be that the policy of CIDCO itself engrafts a condition in anticipation of disputes and on an apprehension that its administration would be unnecessarily adversely affected, when the law does not stipulate such a requirement in the context of a will.
27. The Petitioner is justified in relying upon the requirements of the very policy of CIDCO about submitting indemnity bond and affidavit-cumundertaking. A perusal of the formats pertaining to the said documents clearly shows that a beneficiary under the schemes of CIDCO, in the nature of an allottee or transferee, has to indemnify CIDCO from any future disputes that may arise. These are sufficient safeguards and we are unable to accept the contention that although these are very much part of its own policy, CIDCO is of the opinion that they are not sufficient safeguards. The said contention is also rejected.
28. As regards the stand taken by Respondent Nos. 3 to 5, 6A to 6D, 7A to 7G 9, 10, 11 and 13, suffice it to say that while disposing of this Writ Petition, this Court is not deciding the inter se rights between the Petitioner and the private Respondents. If such rights and claims are raised in accordance with law before the competent Court, we are sure that such claims would be decided in accordance with law, without being influenced by the order passed in this Writ Petition.
29. In view of the above, the Writ Petition is allowed in terms of prayer clauses (a), (b) and (c) which read as follows: (a) That this Hon'ble Court may be pleased to issue Writ of mandamus or any other appropriate Writ, order or direction and may be pleased to quash and set aside letter dated 11/07/2019 bearing reference No.CIDCO/Satyo/06/ Kalundre/ 2019/9239 issued by Respondent No.2; (b) That this Hon'ble Court be pleased to issue writ of mandamus or any other appropriate Writ, order or direction directing the Respondents to allot the plots under 12.5% scheme to the Petitioner on the basis of will dated 23.6.1997 without insisting on the letters of administration or probate of the will or on the succession certificate within a period of one month from the date of passing of the order;
(c) That this Honble Court be pleased to declare the condition
No. L(ii) of the policy of CIDCO as bad in law and illegal and the same is ultra vires the Indian Succession Act, 1925 and therefore contrary to Article 14 of the Constitution of India.
30. It is clarified that relief in terms of prayer clause (b) shall enure to the Petitioner if he is otherwise found eligible for the benefit of the said scheme of CIDCO.
31. Pending applications, if any, also stand disposed of. (SHREERAM V. SHIRSAT, J.) (MANISH PITALE, J.)