A single-judge bench of Gujarat High Court consisting of Honourable Justice Biren Vaishnav, because probate wasn’t necessary and that the petitioners were entitled to get their names registered in the society’s records as far as the bungalow was concerned with the will, had allowed the petition in the case of Kalindi Arvindbhai Mehta v. Registrar, Cooperative Societies.
Brief Facts
The filing of the present petition was due to the brief facts as reproduced in an order dated 09.03.2020 passed by this Court. In that order, the case of the petitioners was that they had acquired the property under the will. An application had been made to the society to transfer that property in their name based on the will. The society in the year 2015 had a stand that the petitioners ought to have obtained probate. The judgment in the case of Minaxiben Shashikant Patel vs District Collector 2007 was relied upon and it was submitted that probate was not necessary and representation had been made to the Registrar. But that was not being decided since then, hence the petitioner had approached this Court.
So, the case of the petitioners was that they were entitled to the directions that Bungalow No.14, Subhada Cooperative Housing Society Ltd. shall be transferred in their name under the will. Earlier, since the Registrar had not taken a decision, the Court issued directions to him to decide to vide an order dated 16.10.2019. Accordingly, complying with the aforesaid order, the Registrar decided on 24.01.2020 by which it was opined that the domain of deciding transfer through succession was with the Committee of Society and hence, the direction was given to the society, now it was for the society to take a decision. The main controversy in the petition was whether the petitioners were entitled to get their names registered in the society’s records as owners of the property.
Submissions before the Court
Petitioner’s Submissions
Learned advocate for the petitioners Mr Baiju Joshi, submitted that the Registrar ought to have directed the society to act according to the settled law to enrol the petitioners as the members of the society, without insisting for probate.
Further, the Learned Advocate had pointed out on 9.03.2020 that in view of the judgment in the case of Minaxiben Shashikant Patel Vs. District Collector 2007, no probate was necessary.
Respondent’s Submissions
Additionally, a reply was filed by the Society that in principle they won’t have any objection if the Court would give direction to record the names of the petitioners as owners of the bungalow in question. Further, the affidavit indicated that the apprehension of the society was that whether in the year 1999, the brothers of the petitioners had any objection to the existence of the will. Admittedly, as pointed out by Mr Baiju Joshi, the learned Advocate for the petitioners, based on the rejoinder there was no challenge to the will as executed in 1992.
Consideration by Court
The Court considered its earlier order passed in the Special Civil Application No. 18138 of 2019. It was prayed in that petition that this Hon’ble Court might be pleased to issue a writ of mandamus or any such other appropriate writ, order or direction, which would direct the respondent Nos.1 and 2 to decide the representation of the petitioners expeditiously and would direct the respondent No.3 to transfer the share of Tenement No.14, Subhada Cooperative Housing Society Ltd. in the name of the petitioners, according to the will.
The case of the petitioners was that they were the real sisters of one Ms Mallikaben Makin who expired on 29.12.1998 and as per the will, the said property was to be transferred in their name. They had requested the society for transfer of the tenement, but the same was time and again denied. It is in the background of these facts that the representations have been made to the respondent nos.1 and 2. Considering the prayer made in that petition, respondent no.2 was directed to decide the representation dated 28.05.2019 within three weeks.
Court’s Directions
Following the above consideration by Court, the present petition was allowed. Respondent no. 3 had been directed to register the name of the petitioners in the society’s records as owners of the property being 14, Subhada Cooperative Housing Society Ltd. Moreover, it was directed that such an exercise shall be carried out within 4 weeks from the date of receipt of the writ of the order by this Court.
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