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Kanhialal Sarda and anr. Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberO.J.C. Nos. 407 and 408 of 1976 and 1526 and 1527 of 1978
Judge
Reported inAIR1980Ori27; 49(1980)CLT155
ActsSuccession Act, 1925 - Sections 211 and 213; Constitution of India - Article 226
AppellantKanhialal Sarda and anr.
RespondentState of Orissa and ors.
Appellant AdvocateS.C. Roy, Adv. (in O.J.C. Nos. 407 and 408 of 1976); ;S.C. Mohapatra and ;S. Rath, Advs. (in O.J.C. Nos. 1526, 1527 of 1978)
Respondent AdvocateAddl. Standing Counsel, ;Standing Counsel (Central), ;P.N. Misra and ;Deepak Misra, Advs. (in O.J.C. Nos. 407, 408 of 1976 and 1526, 1527 of 1978); ;R.C. Patnaik, ;P.K. Misra, ;S. Biswanath, ;S.P. Cho
DispositionPetition dismissed
Cases Referred(V. S. S. Narasayyamma v. Andhra Bank Ltd.
Excerpt:
.....and as the petitioner has been appointed as the executor under the registered will left by baijnath sarda, he, in the best interests of all concerned, should be allowed to hold the leases, work the mines and manage the said properties till the disposal of the probate proceeding and subject to the result of that proceeding so that the leasehold properties may not be wasted by the efflux of time. ' law is now well settled by authoritative decisions of the supreme court and of the high courts that the executor cannot establish his right in a court of law so long a probate of will is not granted in his favour by a court of competent jurisdiction. --this section clearly creates a bar to the establishment of any right under will by an executor or a legatee unless probate or letters of.....achakya, j.1. o.j.cs. 407 and 408 of 1976 have been filed by kanhialal sarda, son of late baijnath sarda. by these two writ petitions the petitioner seeks for a direction from this court to the state of orissa (opp. party no. 1) in the mining and geology department to execute a formal deed of lease in respect of the areas separately described in paragraph 1 of each of these two writ petitions, in favour of the petitioner in his capacity as the executor of the estate of late baijnath sarda, as appointed by the latter by his last will.2. o.j.cs. 1526 and 1527 of 1978 have been filed by sundarlal sarda, the other son of late baijnath sarda, the petitioner in these two writ petitions in effect prays for an order or direction of this court calling upon the state of orissa (opp. party no. 1) to.....
Judgment:

Achakya, J.

1. O.J.Cs. 407 and 408 of 1976 have been filed by Kanhialal Sarda, son of late Baijnath Sarda. By these two writ petitions the petitioner seeks for a direction from this Court to the State of Orissa (Opp. Party No. 1) in the Mining and Geology Department to execute a formal deed of lease in respect of the areas separately described in paragraph 1 of each of these two writ petitions, in favour of the petitioner in his capacity as the executor of the estate of late Baijnath Sarda, as appointed by the latter by his last will.

2. O.J.Cs. 1526 and 1527 of 1978 have been filed by Sundarlal Sarda, the other son of late Baijnath Sarda, The petitioner in these two writ petitions in effect prays for an order or direction of this Court calling upon the State of Orissa (Opp. Party No. 1) to execute a formal deed of lease in favour of the petitioner in his representative capacity representing all the heirs and legal descendants of the recorded lessee and in terms of the order of the Central Government dated the 17th December, 1968 and the direction of this Court in O.J.Cs. 30, 123 and 124 of 1965,

3. All the above-mentioned 4 O.J.Cs, were taken up together for hearing. The facts alleged by the petitioner in O.J.Cs. Nos. 407 and 408 of 1976 are almost the same as those alleged in the counters filed by him in O.J.Cs. 1526 and 1527 of 1978. Likewise the facts alleged by the petitioner in OJ.Cs. 1526 and 1527 of 1978 are almost the same as those alleged in the counters filed by him in O.J.Cs 407 and 408 of 1976. The facts alleged in the counters filed by the State of Orissa (Opp. Party No. 1) in all these writ petitions are in effect the same. The facts and law required to be considered and decided are all common and similar in all these cases. Accordingly these cases were taken up together for hearing and they are herewith being disposed of by this common judgment.

4. The following facts are not disputed by any of the parties:--

Hiralal Sarda, the grandfather of the petitioners in these O.J.Cs, had been granted by the ex-ruler of Keonjhar two mining leases in the year 1934 in respect of two iron ore mines for a term of 30 years. Hiralal Sarda died in the year 1947. His entire interest in the said mines' devolved on his eldest son Baijnath Sarda as per the family settlement made by Hiralal Sarda on 5-7-1947. After the death of Hiralal, Baijnath worked the said mines, and he was treated by all concerned as the lessee of the said mines for all intents and purposes. In 1962, Baijnath in accordance with the right of option of renewal contained in the original lease, approached the State of Orissa to renew the said lease for a fresh term of 30 years. As the said prayer was not entertained, Baijnath moved this Court and on the decision of this Court in OJ.Cs. 30, 123 and 124 of 1965, the Central Government by its order dated 17-12-1968 directed the State of Orissa to renew the said leases in favour of Baijnath Sarda. Baijnath died on 28-7-1974 leaving behind him his two sons --Sundarlal (petitioner in O.J.Cs 1526 and 1527 of 1978) and Kanhialal (petitioner in O.J.Cs 407 and 408 of 1976).

5. Admittedly several litigations are pending between the heirs and successors of late Baijnath Sarda in respect of his properties and the leasehold properties. The probate proceeding No. 162/1974 initiated by Kanhialal Sarda (the petitioner in O.J.C. Nos. 407 and 408 of 1976) in respect of the alleged will of late Baijnath Sarda is pending in the Calcutta High Court Sundarlal, the petitioner in O.J.C. Nos. 1526 and 1527 of 1978, and his sons are contesting that matter in all its aspects. In that proceeding they, inter alia, challenge the genuineness of the will, the authority of late Baijnath Sarda to will away the properties mentioned therein, and the appointment of Kanhialal as the executor under the said will. A partition suit being Title Suit No- 19/1974 is pending in the court of the Subordinate Judge, Chaibasa for partition of the family properties and the leasehold properties in question between the heirs and successors of Hiralal Sarda and Baijnath Sarda. The petitioners in these O.J.Cs. are parties in that suit. Kanhialal Sarda has not as yet obtained the probate of the alleged will left by Baijnath Sarda. It is also an admitted fact that the petitioners in these 4 writ petitions inter se and/or some of the heirs and successors of late Hiralal and Baijnath are in litigating terms since a long time in connection with certain properties including the leasehold properties in question. In that view of the matter, I do not propose to deal with or decide the contested facts or the rights of the parties arising therefrom, except those which are essentially necessary to dispose of these writ petitions. O.J.C. Nos. 407 and 408 of 1976:

6. On behalf of Kanhialal Sarda, the petitioner in O.J.C. Nos. 407 and 408 of 1976, it is urged as follows:--

The Central Government has directed renewal of the leases in favour of late Baijnath Sarda and so the State Government has no other option but to renew the said leases in favour of the legal representatives of late Baijnath Sarda. It is contended that the petitioner has been appointed as the executor under the registered will left by Baijnath, and so he is the legal representative of the testator for all intends and purposes and all the properties of Baijnath have already vested in the petitioner on the death of the testator as provided under Section 211 of the Succession Act, and he has been recognised as the executor by the State of Orissa and its officers in the Mining Department, and so he has the right to get renewal of the mining leases in question. As the State Administration has already recognised the petitioner as the executor under the said will, the State Government is bound by its commitment and recognition, and cannot change its stand so far as the grant of renewal of the leases is concerned. The State Government has not been prohibited by any order of any court or authority not to allow the petitioner to administer the property, and under Section 211 of the Succession Act the said leases vest in him, and so the State Government should renew the leases in favour of the petitioner very soon so that he can manage and take proper care of the same as required and provided under Section 308 of the Succession Act. The pendency of the Probate proceeding will not stand in the way of the State to renew the mining leases in favour of the petitioner as all the intermediate acts of the petitioner as an executor of the said will would be rendered valid on the grant of the same, as provided under Section 227 of the Act. It is also urged that non-operation of the mine is not in the best interest of any of the legatees or the legal representative or the heirs of the deceased, and as the petitioner has been appointed as the executor under the registered will left by Baijnath Sarda, he, in the best interests of all concerned, should be allowed to hold the leases, work the mines and manage the said properties till the disposal of the Probate proceeding and subject to the result of that proceeding so that the leasehold properties may not be wasted by the efflux of time. On the above averments it is prayed that this Court, in fitness of things, should direct the State to grant renewal of the mining leases in favour of the petitioner.

7. The factual and the legal submissions and the contentions made on behalf of the petitioner in O.J.C. Nos. 407 and 408 of 1976 are challenged and contested in all their aspects by the opposite parties in these writ petitions and bv the petitioner in O.J.C. Nos. 1526 and 1527 of 1978. It is not necessary to deal with all that in this case as these two writ petitions have to be disposed of on a particular point of law as stated below.

8. As stated above, the main basis on which the petitioner in these two writ petitions asks this Court to direct the State of Orissa to grant renewal of the mining leases in favour of the petitioner is that he has been appointed as the executor under the will left by late Baijnath Sarda and, therefore, he has the right to manage the mining leases in question. As stated earlier amongst other things the validity, the genuineness of the said will and the testamentary capacity of late B. N. Sarda to will out the properties mentioned therein are under challenge in the probate proceeding pending in the Calcutta High Court and also in the Partition Suit pending in the court of the Subordinate Judge, Chaibasa. Apart from that, the petitioner has not obtained the probate of the alleged will. Section 213 of the Succession Act so far as relevant is as follows: --

'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.'

Law is now well settled by authoritative decisions of the Supreme Court and of the High Courts that the executor cannot establish his right in a Court of Law so long a probate of will is not granted in his favour by a Court of competent jurisdiction. Their Lordships of the Supreme Court in Hem Nolini Judah v. Mrs. Isolyne Sarojbashini Bose : (AIR 1962 SC 1471 at P. 1474) on referring to Section 213 of the Act have held:--

'This section clearly creates a bar to the establishment of any right under will by an executor or a legatee unless probate or letters of administration of the will have been obtained. It is now well settled that it is immaterial whether the right under the will is claimed as a plaintiff or as a defendant; in either case Section 213 will be a bar to any right being claimed by a person under a will whether as a plaintiff or as a defendant unless probate or letters of administration of the will have been obtained: (See Ganshamdoss Narayandoss v. Gulab Bi Bai, ILR 50 Mad 927 : (AIR 1927 Mad 1054 (FB).)'

In the case of Geevarghese Geevarghese v. Issahak George (AIR 1971 Ker 270), it has been held that Section 213 of the Act creates a bar to the establishment of executor's right under a will in a Court of Law unless probate has been obtained by him. It has also been held in that case-that even if no such plea is taken by a party the court should see that provision of Section 213 is not bypassed. In the Division Bench decision reported in Dwarka Nath Singh v. Mt. Raj Rani : (AIR 1932 Oudh, 85), it has been held that a claim based on a will executed by a person governed by the Succession Act of 1925 cannot be established in a court without obtaining probate of the will. It is also held in that case that so long probate of the will is not obtained a Court of Law has no jurisdiction to try issues relating to or having any bearing on the alleged will. It is unnecessary to refer to further decisions cited' by the learned counsel to the above effect.

9. It is contended on behalf of the petioner in these two writ petitions that the petitioner, in his capacity as the executor of Baijnath's will, is the legal representative of Baijnath for all intents and purposes as soon as Baijnath died, and all the properties of Baijnath vested on the petitioner on the death of the former as provided under Section 211 of the Succession Act, and the petitioner's right to possess and manage the property has already accrued to him on the death of the testator and the vesting of that right is not postponed till the grant of the probate by the court, and that being so, the State should renew the mining leases in his favour without waiting for the grant of probate of the said will. The proposition of law contained in the above submission, even if true, cannot enable the petitioner to obtain the direction asked for from this Court, as a Court of Justice cannot come to his aid unless probate of the will is granted in his favour. As discussed above Section 213 of the Act lays down a peremptory rule of law, and the petitioner, cannot obtain the aid of this Court to establish his right as the executor under the alleged will so long he is not able to produce the probate of the will before this Court. Of course the want of a probate may not affect his right as the executor under the will, but if he seeks the aid of any court of law to establish any of the rights of an executor under the will, the court will not come to his aid till he does not produce the probate of the will. That being the well settled position of law, and as the petitioner's prayers before this Court are all based on his alleged right as the executor of the will this Court cannot grant his prayer at this point of time. Moreover, on the factual side also it is seen that the alleged will, under which the petitioner claims to be an executor, is being contested in the High Court of Calcutta in all its aspects including its genuineness, the testator's authority, competency and capacity to will away the property mentioned therein and the legality and/or the propriety of the appointment of the executor. On that consideration and because of the peremptory provision of Section 213 of the Act, the prayer of the petitioner for a direction of this Court to opposite party No. 1 to grant renewal of the mining leases in favour of the petitioner cannot be granted. The decisions reported in AIR 1954 Pat, 175 (Ramcharan Singh v. Dharohar Kuer) and AIR I960 Andh pra 273 (V. S. S. Narasayyamma v. Andhra Bank Ltd.) cited by the counsel for the petitioner are of no avail or help to the petitioner.

In the Patna decision, the point for consideration was whether Article 142 or Article 120 of the old Limitation Act applied to a suit filed by an executor for declaration of his right to possess the property under the will. While dealing with the said question, the provisions of Sections 211 and 213 were incidentally dealt with and it was held that as vesting of the property took place immediately after the testator's death, the limitation to file a suit would run from the date of vesting. The observation in paragraph 11 of that decision that 'Under Section 213 a right as executor or legatee cannot be established in a Court of Justice unless probate of the will or letters, of administration in respect of the will have been obtained' squarely supports the view taken by me in this case.

In the decision reported in AIR 1960 Andh Pra 273 (supra) one of the points for consideration was whether a person, after accepting the office of an executor under a will, can file a suit as heir of the testator, alleging therein that he did not accept the will or the office of an executor under that will, and he is entitled to file a suit merely as an heir of the testator as if on intestacy. While dealing with that point the provisions of Sections 211 and 213 were referred to and the above point was decided in the negative. There is nothing in this or in the above Patna High Court decision suggesting anything contrary to the above view taken by me in this case.

10. On hearing the counsel appearing; for the parties and in view of the settled position of law and the facts and circumstances of the case as discussed above, I hold that the petitioner cannot seek the aid of this Court at this point of time for the reliefs claimed by him.

Accordingly, O.J.C. Nos. 407 and 408 of 1976 are dismissed.

O.J.C. Nos. 1526 & 1527 of 1978:

11. Sundarlal Sarda, who is undisputedly the eldest son of late Baijnath Sarda, is the petitioner in these two cases. He asks for an appropriate writ, order or direction of the nature of a writ of mandamus and/or otherwise calling upon opposite party No. 1 to execute the formal deed of lease, in terms of the order of the Central Government dated 17-12-1968 and the direction of this Court in O.J.C. Nos. 30, 123 and 124 of 1965, in favour of this petitioner in his representative capacity representing all the recorded lessees or their heirs and lineal descendants, subject to the result of the Probate Proceeding No. 162/74 pending in the Calcutta High Court and the Title Suit No. 19/74 pending before the Subordinate Judge, Chaibasa.

In these two writ petitions it is also prayed that Niranjan Patnaik, opposite party No. 3, be restrained from interfering with the operation and possession of the said mines by the Hindu Undivided family.

12. The petitioner's case, in short, in these two cases is as follows:--

The mining properties in question constituted a part of the ancestral or the Hindu undivided family property or the coparcenary thereof. The rights in relation to the said mining leases were duly recognised by virtue of and under the judgment and order of this Court in O.J.C. Nos. 30, 123 and 124 of 1965 and also by the orders passed by the Central 'Government on 17-12-68, and that being so the State of Orissa and its officers in the Mining Department are bound by the aforesaid judicial and quasi-judicial orders, and are bound to renew the leases in favour of Baijnath Sarda and/or the heirs and his lineal descendants constituting the Hindu undivided family. As the State of Orissa and the Mining authorities are bound in law to obey, follow and comply with the judgment and orders made by this Court and by the Central Govt., and they are not complying with the said directions, which were of a mandatory nature, this Court ought to direct the State of Orissa to execute a formal deed of lease in favour of the petitioner in his representative capacity of the recorded lessees or in the names of all the heirs and lineal descendants of the recorded lessees.

13. As stated earlier, Kanhialal Sarda, the other son of late Baijnath Sarda (petioner in O.J.C. Nos. 407 and 408 of 197S), has come forward with a registered will allegedly executed by late Baijnath Sarda, and on the allegation that he is the executor under the said will he has asked the Calcutta High Court to grant probate of the said will and has prayed in this Court to direct the State Government to grant the Mining leases in his favour as stated earlier. That probate proceeding (No. 162/74) is pending and is contested in all its aspects as stated above by this petitioner and many others.

Opposite parties 7, 9, and 13 in O.J.C. No. 1526/78 have filed a partition suit (T.S. No. 19/74) in the Court of the Subordinate Judge, Chaibasa inter alia praying for partition of the immovable properties and assets of the joint family including the two mines in question. They in that suit challenge the validity and genuineness of the will allegedly executed by late Baijnath Sarda and the previous partition and the partership alleged to have been made amongst the members of the family. The plaintiffs in that suit have prayed for an ad interim injunction against Kanhialal Sarda, who is a defendant in that suit, restraining him from entering into any contract, in his individual capacity or as an executor of the will of late Baijnath Sarda, for supply of iron ores to M.M.T.C. of India Ltd. or anybody else from the suit mines pending the disposal of the suit. In this Court Sundarlal's prayer is opposed on the ground that he cannot represent, as prayed for by him, all the heirs and successors of late Hiralal Sarda or late Baijnath Sarda, as on the partition dated 22-10-1949, the deed of settlement dated 5-4-1947 and on the filing of the partition suit the coparcenary has come to an end, and neither in law nor in fact there exists any joint Hindu undivided family amongst the heirs and- successors of late Hiralal Sarda and late Baijnath Sarda which the petitioner could represent at present and ask for renewal of the lease on that basis.

14. It is evident from the above and from the submissions made by the counsel appearing for all the parties that the parties have been in litigating terms since a long time, and petitioner Sundarlal and Kanhialal, the petitioner in the other two cases, and some other heirs of late Hiralal Sarda and late Baijnath Sarda have been very seriously contesting each other's claim in respect of the mining leases in question. The outcome of the partition suit is not known. The petioner's right to represent the other members of the family is very severely contested on various grounds. Considering the facts and circumstances of the case we, in exercise of our extraordinary jurisdiction in these cases do not feel inclined to direct the State of Orissa to renew the mining leases in question in favour of the petitioner in these two writ petitions or for the matter of that in favour of any other person. However, any of the parties concerned may move the, Calcutta High Court in the said probate proceeding to appoint an administrator of the estate of late Baijnath Sarda under the provision of Section 247 of the Succession Act in order to protect the property from waste and ruination, and to safeguard, as far as possible, the right and interest of the ultimate successful party in the abovementioned litigations.

15. On the above discussions and considerations O.J.C. Nos. 1526 and 1527 of 1978 are also dismissed.

16. In the result, all these four writ petitions are dismissed. The petitioners in these cases shall each pay Rs. 200/-(rupees two hundred) as costs to the State of Orissa, opposite party No. 1, in these writ petitions.

17. Petitions, if any, in respect of the renewal of the mining leases in question pending before the State Government or before any other authorities, may be disposed of on their own merits.

J.K. Mohanty, J.

I agree.


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