Orissa High Court
Case Details
Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Feb-2025 11:39:32 IN THE HIGH COURT OF ORISSA AT CUTTACK FAO No.176 of 2019 (In the matter of an appeal under Section 299 of the Indian Succession Act, 1925.) Lingaraj Nayak (dead) & Anr. …. Appellant(s) -versus- Udhava Charan Nayak …. Respondent (s) Advocates appeared in the case through Hybrid Mode: For Appellant (s) For Respondent (s) : : Mr. Sidhartha Mishra (1), Adv. Mr. Trilochan Nanda, Adv. CORAM: DR. JUSTICE S.K. PANIGRAHI DATE OF HEARING:-06.01.2025 DATE OF JUDGMENT:-30.01.2025 Dr. S.K. Panigrahi, J. 1. 2. In this appeal, the appellants are challenging the order dated 27.12.2018 passed by the learned 2nd Additional Senior Civil Judge, Bhubaneswar
Legal Reasoning
in C.S. No.3/2016(T) arising out of Test Case No.14/2007. It is apparent from the record that the Appellant No.1 (Lingaraj Nayak) has died during pendency of this FAO and the legal heirs of the deceased Appellant No.1 have been substituted vide order dated Page 1 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Feb-2025 11:39:32 01.08.2023 passed in I.A. No.1553 of 2019 arising out of FAO No.176 of 2019. I. FACTUAL MATRIX OF THE CASE: 3. The brief facts of the case are as follows: (i) The Appellant No.1 was the adopted son of Late Krushna Chandra Nayak, whereas the Respondent is his nephew. (ii) During his lifetime, Late Krushna Chandra Nayak, purchased the schedule land on a lease-cum-sale basis from the Government of Odisha. (iii) The Appellant No.1 had initiated probate proceedings vide TEST Case No.14 of 2007, before the District Judge, Khurda, Bhubaneswar. However, after a lapse of five years, he filed a petition seeking to withdraw the said probate proceeding. (iv) The District Judge, Khurda, Bhubaneswar, rejected the petition of Appellant No. 1 for withdrawal vide order dated 24.04.2012. Aggrieved by this, the Appellant No. 1 challenged the said order before this Court in W.P.(C) No. 13599 of 2012. (v) Meanwhile, the Respondent filed a petition seeking transposition as a petitioner in the probate proceedings, contending that the Will was in favor of both parties, and therefore, probate could not be declined at the instance of one party alone.
Decision
(vi) This Court, by order dated 12.05.2014, disposed of W.P.(C) No. 13599 of 2012 with a direction to the District Judge, Khurda, Bhubaneswar, to reconsider both the application of withdrawal and the application for transposition. Page 2 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Feb-2025 11:39:32 (vii) Subsequently, the Respondent was transposed as the petitioner in the probate proceedings before the District Judge. (viii) Upon the grant of probate becoming contested, the matter was transferred to the 2ndAdditional Senior Civil Judge, Bhubaneswar, for adjudication on merits, where it was renumbered as C.S. No. 03 of 2016 (T), arising out of TEST Case No. 14 of 2007. (ix) Based on the pleadings of the parties, and after recording the evidence, the 2ndAdditional Senior Civil Judge, Bhubaneswar, by the order dated 27.12.2018, allowed probate of the Will in favor of the Respondent and Appellant No.1. Aggrieved by this decision, the present appellants have filed this appeal. II. SUBMISSIONS ON BEHALF OF THE APPELLANTS: 4. Learned counsel for the Petitioner earnestly made the following submissions in support of his contentions (i) The Appellants submitted that the Respondent is neither a descendant of the testator nor has he rendered any significant services to him during his lifetime. (ii) The Appellants further submitted that the execution of the alleged Will is suspicious, as the probate proceedings were initiated 25 years after the testator’s death. Krushna Chandra Nayak passed away in the year 1990, while the probate petition was filed in 2007. Such an extraordinary delay casts serious doubts about the authenticity of the Will and warrants the dismissal of the probate proceedings. Furthermore, as the testator passed away in 1990, the probate proceedings are barred by the law of limitation. Page 3 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Feb-2025 11:39:32 (iii) The Appellants further submitted that the alleged ‚Will‛ stipulates that the Respondent and Appellant No. 1 shall jointly own Plot No. 83, measuring 32 square feet, in equal shares. However, the ‚Will‛ is silent on the ownership and alienation of the remaining 9600 square feet comprising a double-storied shop-cum-residential building situated on the same plot. In the absence of any provision, addressing this substantial portion, the Will becomes impossible to execute and is rendered void. (iv) The Appellants submitted that the probate proceedings were allowed without affording them an opportunity to adduce rebuttal evidence. The 2ndAdditional Senior Civil Judge, Bhubaneswar, permitted the Defendants to submit evidence on 16.05.2018, despite a Miscellaneous Petition being pending, and without securing the crucial testimony of the Sub-Registrar, as directed by the earlier court order. Subsequently, the 2nd Additional Senior Civil Judge, Bhubaneswar closed the Appellants’ evidence and pronounced the impugned decision, which is bad in law and liable to be set aside. (v) The Appellants further contended that the 2ndAdditional Senior Civil Judge, Bhubaneswar, erred by failing to consider the entitlement and standing of Appellant No. 2, the legally married wife of the deceased testator and a Class-I heir. As a Class-I heir of the property, her rights should have been duly examined before granting probate. The failure to do so amounts to a material irregularity, undermining the fairness of the proceedings. Page 4 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Feb-2025 11:39:32 III. SUBMISSIONS OF BEHALF OF THE RESPONDENT: 5. Per contra, the learned counsel for the Opposite Party earnestly made the following submissions in support of his contentions: (i) The Respondent submitted that Late Krushna Chandra Nayak had executed a Registered Deed of Will on 24.11.1982 in favor of Appellant No. 1 and the Respondent. The ‚Will‛ was duly registered at the Sub- Registrar’s Office, Bhubaneswar, in the presence of two attesting witnesses. The recitals of the Will unequivocally demonstrate that it was the testator’s last Will and testament, executed voluntarily, out of love and affection, and free from coercion or undue influence. (ii) The original deed was under the custody of the present Appellant No.1, who initially filed a probate proceeding in TEST Case No. 14 of 2007 before the District Judge, Khurda, Bhubaneswar. However, he later sought to withdraw the proceedings, which were subsequently pursued by the Respondent after being transposed as the petitioner. (iii) The execution and attestation of the registered Will were duly proven by the Respondent. Section 63 of the Indian Succession Act, 1925, mandates that a Will must be attested by at least two witnesses, while Section 68 of the Indian Evidence Act, 1872, requires the testimony of at least one attesting witness to prove its execution. Both attesting witnesses deposed that the testator, Krushna Chandra Nayak, signed the Will in their presence and presented it for registration at the Sub- Registrar’s office. In contrast, the Appellants failed to produce any oral or documentary evidence to rebut the Respondent’s case. Accordingly, Page 5 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Feb-2025 11:39:32 based on the evidence adduced, the probate of the Will was rightly granted. (iv) The Respondent submitted that the right accruing from the Will is a continuous right, exercisable at any time after the testator’s death. While the delay in initiating probate proceedings must be explained, it does not constitute an absolute bar to such proceedings. The 2ndAdditional Senior Civil Judgerightly observed that once the Will’s execution and attestation are proven, any delay in filing the probate petition does not affect the validity of the Will. (v) Both the Appellant No. 1 and the Respondent are equal beneficiaries under the Will, each entitled to a half share in the property. They have constructed their respective buildings and stalls on their allotted portions. The Appellants’ contention that the Will does not mention the residential building and stalls is an afterthought, devoid of any supporting evidence. Their actions reflect a mala fide intention to appropriate the entire property, in direct contravention of the Will’s terms, which clearly bequeath equal shares to both parties. (vi) The Respondent contended that the impugned judgment does not suffer from any illegality or infirmity. The 2ndAdditional Senior Civil Judge, Bhubaneswar rightly granted probate of the Will in favour of both parties, and therefore, the judgment warrants no interference by this Court. Page 6 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Feb-2025 11:39:32 IV. FINDINGS OF THE 2NDADDITIONAL SENIOR CIVIL JUDGE, BHUBANESWAR: 6. The 2ndAdditional Senior Civil Judge, after reviewing the pleadings, evidence, and hearing arguments from both parties, made the following findings: (i) Under the Limitation Act, 1963, no period is prescribed within which an application for probate, letters of administration or succession certificate must be made. The assumption that under Article 137 of the Limitation Act, 1963, the right to apply necessarily accrues on the date of the death of the deceased is unwarranted. The application for probate is for the Court’s permission to perform a legal duty created by a Will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed. The right to apply would accrue when it becomes necessary to apply which may not necessarily be within three years from the date of the deceased’s death. (ii) Delay beyond three years after the deceased death would arouse suspicion and greater the delay, greater would be the suspicion. Such delay must be explained but cannot be equated with the absolute bar of limitation and once execution and attestation are proved, suspicion of delay no longer operates. (iii) In absence of any rebuttal evidence and with the presence of witnesses during the execution of the Will, it is presumed that Krushna Chandra Nayak was of sound mind and understood his actions act at the time of execution of the Will. The affidavit of the attesting witnesses further Page 7 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Feb-2025 11:39:32 strengthens the presumption that Krushna Chandra Nayak was of sound mind and executed the Will of his free will, without any coercion. V. COURT’S REASONING AND ANALYSIS: 7. Heard the Learned Counsels for the parties and perused the documents placed before this Court. 8. At the outset, this Court finds it imperative to examine the applicability of Article 137 of the Limitation Act, 1963, to applications for probate of a Will before delving into the merits of the case. 9. The provisions of Article 137 of the Limitation Act, 1963, are not confined to the Code of Civil Procedure and can be extend to petitions or applications under any Act filed in a civil court. 10. The Supreme Court in Kunvarjeet Singh Khandpur v. Kirandeep Kaur1 observed that Article 137 of the Limitation Act, 1963 is applicable to an application made to the District Judge under Section 264 of the Indian Succession Act, 1925. 11. It is crucial to note that under Article 137 of the Limitation Act, 1963, the limitation period of three years is to be computed from the date on which the ‘right to apply accrues’. In the context of probate of Will, the right to apply for probate is a continuous right that may be exercised at any time after the death of the testator. It accrues when a dispute arises over the Will or when acknowledgment by the court becomes necessary. 12. In this regard, the Supreme Court in Kunvarjeet Singh (supra) observed that an application for probate merely seeks recognition from the court 1(2008) 8 SCC 463 Page 8 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Feb-2025 11:39:32 to perform a duty. Owing to the nature of such proceedings, it is a continuing right. It was further observed as reproduced hereinunder: “15. Similarly reference was made to a decision of the Bombay High Court in Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani [AIR 1983 Bom 268]. Para 16 reads as follows: (AIR p. 270) “16. Rejecting MrDalpatrai's contention, I summarise my conclusions thus— (a) under the Limitation Act no period is advisedly prescribed within which an application for probate, letters of administration or succession certificate must be made; (b) the assumption that under Article 137 the right to apply necessarily accrues on the date of the death of the deceased, is unwarranted; (c) such an application is for the court’s permission to perform a legal duty created by a will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed; (d) the right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years from the date of the deceased’s death; (e) delay beyond 3 years after the deceased’s death would arouse suspicion and greater the delay, greater would be the suspicion; (f) such delay must be explained, but cannot be equated with the absolute bar of limitation; and (g) once execution and attestation are proved, suspicion of delay no longer operates.” Conclusion (b) is not correct while Conclusion (c) is the correct position of law.” Page 9 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Feb-2025 11:39:32 13. It is therefore evident that the right to apply for probate arises when it becomes necessary, and this need not necessarily arise within three years from the date of the deceased’s death. While delay may raise suspicion, it cannot, by itself, constitute an absolute bar to an application for probate; as rightfully held by the lower court. 14. In the instant case, the Appellant No.1 had initially filed a probate proceeding in TEST Case No. 14 of 2007 before the District Judge, Khurda, Bhubaneswar, which were later withdrawn. The Respondent had subsequently applied for transposition, and the same was allowed. 15. Furthermore, the Appellants contended that the lapse of 25 years casts doubt on the authenticity of the Will. While such delay may arouse suspicion, in the present case, the Appellants have not submitted anything to contradict the authenticity of the document. The Will was duly attested, and the attesting witnesses were examined by the 2ndAdditional Senior Civil Judge, Bhubaneswar. In the absence of any proof to the contrary, the probate was granted. Once execution and attestation have been proved, mere suspicion arising from delay cannot operate as a bar. The Appellants have failed to demonstrate any grounds warranting intervention by this court. 16. This Court further finds no merit in the contention of the appellant that the 2ndAdditional Senior Civil Judge, Bhubaneswar, erred by failing to provide an adequate opportunity to the appellant. The record clearly reflects that the petitioner examined witnesses, while the Appellant failed to present any evidence to challenge the validity of the Will. Page 10 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Feb-2025 11:39:32 17. This Court also finds no merit in the contention that Appellant No. 2, who is the legally married wife of the deceased testator and a Class-I heir, had a direct interest in the property and that her rights were not considered by the 2ndAdditional Senior Civil Judge, Bhubaneswar, before granting probate. 18. In Uma Devi Nambiar v. T.C. Sidhan2 the Supreme Court has succinctly observed that a Will inherently deviates from the normal mode of succession, often reducing or excluding natural heirs. This alone does not constitute a suspicious circumstance, especially when the bequest benefits an offspring. The propounder must dispel genuine and substantive doubts, and if successful, the Will must be upheld, even if it appears unconventional or unnatural. This was replicated hereinunder: “16. A Will is executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounderof the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance especially in a case where the bequest has been made in favour of an offspring. As held in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar [1995 Supp (2) SCC 664 : AIR 1995 SC 1852] it is the duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. It has been held that if the propounder succeeds in 2(2004) 2 SCC 321 Page 11 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Feb-2025 11:39:32 SC 1972 removing the suspicious circumstance, the court has to give effect to the Will, even if the Will might be unnatural in the sense that it has cut off wholly or in part near relations. (See Pushpavathi v. Chandraraja Kadamba [(1973) 3 SCC 291 In Rabindra Nath 2492] : AIR Mukherjee v. Panchanan Banerjee [(1995) 4 SCC 459] it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the Will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of Will. Of course, it may be that in some cases they are fully debarred and in some cases partly.” .) 19. It is thus clear that the exclusion of a Class I heir from a testamentary disposition, in itself, does not render the Will invalid or raise a presumption of illegality. A Will, by its very nature, allows the testator to deviate from the ordinary rules of succession and makes specific bequests in accordance with their personal wishes. Such deviations, even if they result in disinheritance or reduced shares for certain heirs, do not inherently cast doubt on the validity of the testamentary document unless accompanied by substantive suspicious circumstances. 20. In the present case, the Will has been duly executed and attested by competent witnesses, adhering to the requirements prescribed under the law. There is no evidence on record to suggest any lack of authenticity or procedural irregularity in its execution. Furthermore, the mere efflux of time does not invalidate the Will or extinguish the right to apply for probate. Unlike other claims, the right to seek probate does not fall under the strict limitations of a time bar; rather, it accrues when a dispute arises regarding the Will or when judicial acknowledgment of Page 12 of 13 Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: AR-CUM-SR. SECRETARY Reason: Authentication Location: ORISSA HIGH COURT, CUTTACK Date: 03-Feb-2025 11:39:32 the testamentary instrument becomes necessary. This principle ensures that the intentions of the testator are respected and preserved, even in cases where the matter surfaces after considerable time. Therefore, the validity of the Will remains intact unless challenged on genuine and legally recognized grounds. VI. CONCLUSION: 21. In light of the foregoing, this Court finds that the appellants have failed to establish any substantive grounds necessitating this Court’s intervention. Consequently, the order passed by the learned 2ndAdditional Senior Civil Judge, Bhubaneswar, granting probate, does not warrant interference and is hereby affirmed. 22. The present FAO is hereby dismissed. 23. Interim order, if any, passed earlier stands vacated. (Dr.S.K. Panigrahi) Judge Orissa High Court, Cuttack, Dated the 30th January, 2025/ Page 13 of 13