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Rajkishore Panda and anr. Vs. Haribandhu Mahala and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 50 of 1969
Judge
Reported inAIR1973Ori81
ActsSuccession Act, 1925 - Sections 263
AppellantRajkishore Panda and anr.
RespondentHaribandhu Mahala and ors.
Appellant AdvocateR. Ch. Mohanty, Adv.
Respondent AdvocateRanjit Mohanty and ;N. Patra, Advs.
DispositionAppeal allowed
Cases ReferredShanti Devi Agarwala v. Kusum Kumari Sarkar
Excerpt:
.....246, are not good law]. - on a consideration of the materials in this case, i am satisfied that the grant of probate was defective and as such an order should have been made by the learned district judge under section 263 of the act to revoke the probate......the respondent's application was incompetentand the learned judge had no jurisdiction to grant probate of the will. i amnot in a position to uphold the contention of mr. raniit mohanty that thegrant of probate may be considered asone of grant of letters of administration.9. it is true that there is no substantial evidence regarding the will being forged, though in the petition for revocation such an allegation has been made. in view of a substantial defect, as indicated by me, in the proceedings, it isnot necessary to examine that contention any further.10. mr. ranjit mohanty contended that the application was made under order 9, rule 13 of the code of civil procedure and the learned trial judge was not justified in treating the same as one under section 263 of the indian.....
Judgment:

R.N. Misra, J.

1. The appellants applied for revocation of grant of probate at the instance of the respondents in Original Suit No. 1 of 1968, by the learned District Judge Balasore, on 22-8-1908, That application made on 9-12-68 was registered as Miscellaneous Case No. 32 of 68 and though made under Order 9, Rule 13 of the Code of Civil Procedure, was treated as one under Section 203 of the Indian Succession Act. As the learned District Judge declined to revoke the probate, the appellants have come up in appeal to this Court.

2. One Juihesti Panda was alleged to have executed an unregistered will dated 17-3-1967 and died on 2-11-1967. The testator had 6.69 acres of land. In terms of the testamentary disposition, the following three institutions were to benefit;--

(1) Banitiya Middle English School through its Secretary Haribandhu Mahalla;

(2) Sri Ghateswar Mahadev through Marfatdar Gadadhar Dixit; and

(3) Sri Ganes Jew Thakur of Banitiya through Marfatdars:--

(a) Harihar Panigrahi,

(b) Mahendra Panda,

(c) Gadadhar Dixit.

On 22-12-1967, an application under Section 276 of the Indian Succession Act for probate of the aforesaid will was filed by Haribandhu Mahalla and Gadadhar Dixit implending Sri Ganesh Jew Thakur through the two marfatdars as opposite parties. In due course the opposite parties were set ex parte and on 22-8-1968, probate was granted. As already indicated, after enquiry on the petition for revocation, the learned District Judge rejected the petition on 30th of January, 1969. The present appeal challenges that order.

3. One of the points of dispute was the absence of any relationship of the present appellants with the testator and consequently absence of any cause of action on the probate being granted by the will. An application for additional evidence was made in this Court at the instance of the respondents. The additional evidence consisted of a petition made by the present appellants for grant of a certificate of succession in respect of the estate of the testator wherein their relationship with the testator was differently indicated than what is asserted in the present case. The two genealogies -- one appended to the petition for revocation end the other to the petition for certificate of succession -- materially differ. The additional evidence has been admitted.

4. Mr. B.C. Mohanty for the appellants contends that the grant of probate in this case was contrary to law and the learned District Judge should have come to hold that it, was a fit case where probate should have been revoked. He further contends that the appellants are certainly related to the testator and as such are entitled to lay claim for revocation. It is true, there has been some discrepancy in the genealogy given on thetwo occasions but the explanation offered as to how the mistake arose is acceptable and as such no adverse inference can be drawn against the appellants so as to throw out their petition for revocation.

5. The will in question did not appoint an executor. Section 222 of the Indian Succession Act provides :--

'(1) Probate shall be granted only to an executor appointed by the will.

(2) The appointment may be expressed or by necessary implication.'

The will does not really provide for an executor. It is difficult even to hold byany implication that it contemplated any of the parties named therein to work as executor. In fact Mr. Ranjit Mohanty has not contended during argument of the appeal that there has been compliance of Section 222. On the other hand, his stand has been that what has really been granted is letters of administration and not probate.

I am not in a position to accept the contention of Mr. Ranjit Mohanty. The Indian Succession Act makes separate provisions for letters of Administration and Probate. Many provisions are common or even similar, but the statute maintains clear, distinction between the two and in respect of many features the provisions are different. There is no scope to equate one with the other. The learned trial Judge while granting probate has complied with Section 289 of the Act which provides:--

'When it appears to the District Judge or District Delegate that probate of a will should be granted, he shall grant the same under the seal of his Court in the form set forth in Schedule VI.'

Letters of Administration are to be granted in the form under Schedule VII. In the present case, probate has really been granted under Schedule VI. I would accordingly accept the contention of Mr. R.C. Mohanty and hold that though there was no executor appointed in the will, the learned District Judge has granted probate of the same in contravention of Section 222 of the Act.

6. The appellants have contended that they being relations of the testator were entitled to notice of the probate proceeding and citation should have been issued calling upon them to come and see the proceedings before grant of probate. It is the stand of the learned counsel for the appellants that an attempt has been made to keep them out from the area of contest by excluding them from citation. It is also alleged that the citation has not been affixed in the office of the Collector of the district as required under Section 283(2) of the Act. The order-sheet of the probate proceeding shows that until 5-3-1968, notice had not been affixed on the Collector's notice board and the respondents were called upon to furnish the requisites for such notice. No other order thereafter deals with this matter. There is no indication, therefore that the citation had been published in the office of the Collector of the district. The entire record has no material to justify the conclusion that there had been compliance with the requirements of Section 283(2) of the Act.

7. Section 284 of the Indian Succession Act provides for lodging caveat against grant of probate and Courts havetaken the view that the bare possibility of an interest is sufficient to entitle a party to oppose a testamentary instrument. (See Brindaban Chandra Saha v. Sureswar Shaha Paramanick, (1909) 10 Cal LJ 263). In trying to find out under what occasion a caveatable interest can be said to exist, in the case of Shanti Devi Agarwala v. Kusum Kumari Sarkar, 1971 (2) Cut WR 704 = (AIR 1972.Orissa 178) I accepted Mr. Raniit Mohanty's contention and upheld the view expressed by Sir Ashutosh Mookerjee, J. in the Calcutta case referred to above.

It is true, the appellants have given two different genealogies and as such doubt is thrown on their fides in the matter of relationship with the testator. But an explanation has been offered by them and it is very difficult at this stage to throw away the same as frivolous or baseless. The earlier application was one for certificate of succession. In regard to immovable properties such an application was not at all maintainable and as such it was rejected. It is the case of the appellants that they had not minutely examined the genealogy given on that occasion and had signed the application. I am not in a position to discard the explanation as wholly unacceptable. The relationship as alleged certainly confers a caveatable interest in the appellants.

8. Section 263 of the Act providesfor revocation of grant of probate forany just cause. aS explanation has beenappended indicating the circumstanceswhere a just cause can be said to existand the first one is when it is found thatthe proceeding to obtain the grant wasdefective in substance. The defect pointed out in this case was that though therewas no executor appointed under thewill, yet the application at the instanceof the respondents was entertained andprobate of will was granted, brings thematter within the purview of the firstclause in the explanation. In my viewthe application was defective; so was thegrant. Thus the proceeding to obtainthe grant must be found to be defectivein substance as the mandatory provisionof the statute was overlooked. The respondent's application was incompetentand the learned Judge had no jurisdiction to grant probate of the will. I amnot in a position to uphold the contention of Mr. Raniit Mohanty that thegrant of probate may be considered asone of grant of Letters of Administration.

9. It is true that there is no substantial evidence regarding the will being forged, though in the petition for revocation such an allegation has been made. In view of a substantial defect, as indicated by me, in the proceedings, it isnot necessary to examine that contention any further.

10. Mr. Ranjit Mohanty contended that the application was made under Order 9, Rule 13 of the Code of Civil Procedure and the learned trial Judge was not justified in treating the same as one under Section 263 of the Indian Succession Act. I do not think such a contention can prevail. It has been often said that merely because a petition has been labelled to be under a particular provision of the law. Court's power to treat the same under the appropriate provision of law is not taken away or abridged. The learned trial Judge rightly accepted the petition to be one under Section 263 of the Act.

11. In grant of probate of a will, the Court has a special duty and keeping that aspect in view, strict provisions have been made in the Succession Act. On a consideration of the materials in this case, I am satisfied that the grant of probate was defective and as such an order should have been made by the learned District Judge under Section 263 of the Act to revoke the probate. I would accordingly allow the appeal, set aside the order of the learned trial Judge and direct that the grant of probate made on 22-8-1968. under Section 289 of the Indian Succession Act stands revoked. The probate proceeding in Original Suit No. 1 of 1968, in the Court of the District Judge at Balasore shall be re-heard in accordance with law. I have not finally decided as to whether the appellants have a caveatable interest and it shall be open to the respondents to raise dispute on that score before the trial Judge. The appellants shall be free to dispute the application for grant of probate on all grounds open to them, in law. I would direct both parties to bear their own costs upto this stage. Further costs shall abide the result.


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