The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK FAO No.346 of 2014 (From the judgment dated 25th February, 2014 passed by the learned District Judge, Puri in C.S. No.3 of 2006) Jitendra Mohapatra and others …. Appellants -versus- Smt. Renubala Mohapatra …. Respondent Advocate(s) appeared in this case:- For Appellants : Mr. R.C. Mohanty, Advocate For Respondent : Mr. B.B. Mishra, Advocate CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 19th April, 2023 B.P. Routray, J. 1.
Facts
Present appeal by the Defendants is directed against the judgment dated 25.02.2014 passed by learned District Judge, Puri in a probate proceeding, i.e. C.S. No.3 of 2006 under Section 276 read with Section 278 of the Indian Succession Act. 2. The Testator, namely, Upendra Mohapatra died on 25.5.2001. The Will under Ext.1 was executed on 27.3.1996 and registered on 29.3.1996 before the Sub-Registrar, Nimapara under the provisions of Indian Registration Act. The parties are Hindus. FAO No.346 of 2014 Page 1 of 8 3. The case of the Plaintiff (present Respondent) is that she was legally married wife of the Testator and prior to her marriage the Testator married present Appellant No.3, namely Kanchanamala Mohapatra. Present Appellant Nos.1 and 2 are two sons born out of the wedlock between the Testator and Kanchanamala Mohapatra. The marriage of Testator with Kanchanamala Mohapatra was dissolved by decree dated 27.3.1984 (Ext.4) of the competent court passed in T.S. No.73/83-I. Then Plaintiff married to the Testator after dissolution of his marriage with Kanchanamala. 4. The Plaintiff examined four witnesses in order to prove her case and exhibited five documents. P.W.1 is one of the attesting witnesses, P.W.3 is an official witness and P.W.2 is the Advocate, who drafted the Will. No evidence was adduced from the side of the Defendants, who are the present Appellants though neither did examine any witness nor adduced any document on their behalf. 5. Learned Tribunal framed seven issues for decision, among which Issue Nos.3, 4 & 5 are to the effect that, whether the Will was genuine and properly executed, and whether the Testator executed the Will in a sound state of mind and body. All the issues including Issue Nos.3, 4 and 5 were answered in favour of the Plaintiff and the Probate Court directed that the Will to be probated in faovur of the Plaintiff in respect of the estate of the Testator as per Schedule ‘A’ of the plaint. FAO No.346 of 2014 Page 2 of 8 6. Schedule ‘A’ describes all such benefits including LIC amount, provident fund dues, gratuity, group insurance, leave salary etc. It needs to be mentioned here that the Testator was serving as the Helper under the Electricity Department, i.e. in the Office of the Executive Engineer, CESCO, Nimapara. 7. It is submitted on behalf of the Appellants that the status of the Plaintiff as legally married wife of the Testator is doubtful and not established on record. Further, the execution of the Will by the Testator has not been proved in a fit state of mind since he was on leave before his death as per the service record. 8. As seen from records, the registration of the Will before the Sub- Registrar, Nimapara on 29.3.1996 is not disputed. The endorsements of the registering authority contained in Ext.1 coupled with the evidence of P.W.1 & 2 prove the same beyond all doubts. It is true that irrespective of the fact of registration a Will, the onus probandi in every case is on the propounder to prove valid execution of the Will, by producing satisfactory evidence. In the case at hand, as stated earlier, P.W.1 is the attesting witness and P.W.2 is the Advocate who drafted the Will. Perusal of evidence of P.W.1 & 2 reveals that the Testator has executed the Will in a sound disposing state of mind and the Will which was prepared as per the instruction of the Testator was signed by the Testator at a free state of mind. The endorsements and signatures on the Will have been duly proved by P.W.1 & 2 and though these witnesses have been put to lengthy cross-examination, but FAO No.346 of 2014 Page 3 of 8 nothing could be elicited from their lips to doubt anything on execution of the Will by the Testator. Nothing could be found from the cross- examination of these witnesses to discredit their version either regarding their presence at the time of execution of the Will or putting signature by the Testator. Therefore, the requirements of Sections 63 and 68 of the Indian Succession Act are found fulfilled with regard to execution of the Will by the Testator and the attestation thereof. 9. So far as the submission made regarding status of the Plaintiff as legally married wife of the Testator is concerned, the Plaintiff as P.W.4 has stated that she married to the Testator and two sons born out of their
Legal Reasoning
legally married wife of the Testator cannot be doubted prima facie. 10. No material has been brought on record to show that the Testator was not in fit state of mind on the date of execution of the Will. As per service record of the Testator, he was on leave prior to 10 to 15 days of his death. It is due to fall of the Testator, as admitted by P.W.4 in her evidence. When the date of death is on 25.5.2001 and the date of execution of Will is 27.3.1996, the illness of the deceased prior to 10 to 15 days of his death is immaterial for the purpose. It is evident from the evidence of P.W.1 and 2 that the Testator himself was present before the Sub-Registrar, Nimapara on 29.3.1996 for registration of the Will. This part is not rebutted by the Appellants-Defendants. Therefore, the finding of learned trial court with regard to Issue Nos.3, 4 and 5 are confirmed that the Will under Ext.1 is genuine, valid and the same is the last Will of the Testator. It is further established that the Testator has executed the Will in a sound state of mind and body and the same is free from any such disability contemplated under Section 59 of the Indian Succession Act. 11. Here a substantial question of law is urged by the Appellants that the Will in favour of the Plaintiff cannot be executed in respect of service benefits of the Testator. It is submitted by Mr. Mohanty that the service benefits of the Testator like provident fund dues, gratuity etc. are not transferable and therefore, the same cannot be transferred to the Plaintiff by execution of the Will. FAO No.346 of 2014 Page 5 of 8 12. Before dealing with the contentions put-forth by Mr. Mohanty, it is relevant to reproduce relevant portion of the Will. The same is as follows:- “I accordingly declare her as the sole beneficiary and Universal legatee of this My Will. of whatsoever situate I hereby leave, give, divise, bequeath absolutely and forever to my said wife, Srimati Renubala Mohapatra, her heirs, executors or administrators, for her use and benefits absolutely and forever, all my property, assets, credits, both movable and and immovable wheresoever reversion, expectancy, future assets acquired by me, all deposits, dues including Provident Fund dues, Life Insurance dues, gratuity or other service benefits and dues whatsoever is payable or due to me or on account of myself and I hereby appoint her, Srimati Renunbala Mohapatra as the sole executive of this my WILL who will be entitled to Probate without being required to furnish any security.” including all character 13. Relying on the contents of the Will, Mr. B.B. Mishra, learned counsel appearing for the Plaintiff-Respondent submits that the properties though include service benefits of the Testator like provident fund, gratuity etc, but does not include family pension. Such service benefits can be counted specifically in terms of Section 142 of the India Succession Act and therefore can be disposed of testacy. He relies on the case of Madhya Pradesh High Court in Sundariya Bai Choudhary v. Union of India and others, AIR 2008 Madhya Pradesh 227. In the said case, dispute arose between 1st wife and 2nd wife of the Testator whether the family pension on account of death of the Testator could be granted to the 2nd wife through the execution of Will. It is held FAO No.346 of 2014 Page 6 of 8 by the Division Bench of Madhya Pradesh High Court that family pension is not an estate of an employee and therefore the same cannot be bequeathed by executing Will because the Will can be executed only in respect of an estate which the Testator possess or/and may acquire in future during his life time. The Division Bench further held that no doubt, the other pensionary benefits like provident fund, gratuity, etc. and other retiral dues excluding family pension and extra remuneration would be estate of the deceased and that can be bequeathed by him. 14. Section 142 of the Indian Succession Act defines specific legacy and prescribes that where a Testator bequeaths a specific part of his property distinguished from all other parts of his property to any person, the legacy is said to be specific. As an illustration, it is mentioned that, “all my shares in the Imperial Bank of India which I may possess at the time of my death” or “All the Government securities I shall be entitled to at the time of my decease”. 15. As per Schedule ‘A’ of the plaint, those service benefits under provident fund dues, group insurance dues, gratuity and leave salary has been computed in specific amount i.e. to the tune of Rs.1,68,500/- after deduction of the amount mentioned in Schedule ‘B’ (for Rs.1,08,000/-). It is thus clear that the legacy in respect of service benefits of the Testator has been counted in specific terms. As such, it is held that the benefits due to the service of Testator, to be granted as per Schedule ‘A’ of the plaint, are not prohibited under the provisions of Indian Succession Act for testamentary disposition. FAO No.346 of 2014 Page 7 of 8 16. A further submission is made by the Appellants that Appellant No.3 being the divorced wife of the Testator, her maintenance creates a charge on the property of the Testator. Nevertheless, this was not pleaded before the Probate Court. It is not known whether she was getting any maintenance or any amount is left unexecuted on this count. So in absence of any pleading and evidence to that effect such contention is not entertained at this stage. 17. In the result, no ground is seen to interfere with the impugned
Arguments
wedlock. Here it is pointed out by Mr. R.C. Mohanty, learned counsel for the Appellants that the Plaintiff was unable to say the exact date and year of her marriage. Her inability to speak so is not sufficient to discredit her version or to doubt her status as the legally married wife. When the background facts that Kanchanamala Mohapatra was no more legally married wife of the Testator since 27.3.1984, i.e. the date of decree of dissolution of their marriage, it is natural on the part of the Testator to go for a second marriage. The finality attained to the decree of dissolution of marriage between the Testator and Appellant No.3 remains undisputed. Therefore, it becomes clear that Appellant No.3 has no right over the properties of the Testator subject to such right of maintenance, if any, in her favour. So far as the Appellants No.1 & 2 are concerned, who are sons of the Testator through Appellant No.3, they have already attained majority on the date of death of the Testator and this is clear from the age descriptions mentioned in the cause title FAO No.346 of 2014 Page 4 of 8 of the plaint. Keeping all such facts in view, the status of the Plaintiff as
Decision
judgment of the learned District Judge, Puri and the appeal is dismissed being devoid of merit. (B.P. Routray) Judge B.K. Barik/Secretary FAO No.346 of 2014 Page 8 of 8