Geetigunjan Sarangi .… v. Nagendranath Sarangi and others
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK FAO No.130 of 2008 & FAO No. 219 of 2008 (From the judgment dated 16th February 2008 passed by the learned Civil Judge (Senior Division), Second Court, Cuttack in O.S.No.1 of 2005) ---------- FAO No.130 of 2008 Geetigunjan Sarangi .…… Appellant Versus Nagendranath Sarangi and others …... Respondents Advocate(s) appeared in this case :- For Appellant For Respondents : : Mr.S.K.Mishra, Sr.Advocate Mr.A.C.Mohapatra, Advocate (for Respondent No.2) Mr.K.Mishra, Advocate (for Intervenor) AND FAO No.219 of 2008 Bibhuti Bhusan Sarangi .…… Appellant Versus Geetigunjan Sarangi and others …... Respondents Advocate(s) appeared in this case :- For Appellant For Respondents : :
Legal Reasoning
Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 16-Aug-2023 17:30:47 FAO No.130 of 2008 & FAO No. 219 of 2008
Legal Reasoning
Mr.A.C.Mohapatra, Advocate Mr.S.K.Mishra, Sr.Advocate (for Respondent No.1) Mr.K.Mishra, Advocate (for Intervenor) Page 1 of 10 CORAM : JUSTICE B.P. ROUTRAY JUDGMENT 4th August, 2023 B.P. Routray,J. 1. Both the appeals being arise out of the same judgment of the learned Civil Judge (Senior Division), Second Court, Cuttack passed in O.S.No.1 of 2005 are heard together and disposed of in this common judgment. 2. Heard Mr.S.K.Mishra, learned counsel for the Plaintiff and Mr.A.C.Mohapatra, learned counsel for Defendant No.2 as well as Mr.K.Mishra, learned counsel for Invtervenor applicant. 3. Since two Intervention Applications have been filed in I.A. No.228 of 2023 and I.A.No.210 of 2023 in both the appeals respectively, the same are dealt with at the outset. These two Intervention Applications have been filed before this Court on 15th March 2023 and 10th March 2023 respectively by the applicant, namely Prahallad Sahoo. 4. It is the contention of the Intervenor applicant that he was a friend of the testator, namely Hema Chandra Sarangi and had served in Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 16-Aug-2023 17:30:47 the same Government Office where the Testator worked. His further contention is that, the Testator executed a Will dated 30th December FAO No.130 of 2008 & FAO No. 219 of 2008 Page 2 of 10 2000 in his favour in respect of such properties covered under Khata No.840 and 833, which are also the properties covered in O.S No. 1 of 2005. But the Intervenor applicant could not register said Will due to ignorance and the same after being traced out on 25th January 2023 was registered before the Sub-Registrar, Mahanga on 2nd March 2023. As such, the Intervenor prays to array him as a party in the appeal and decide the matter in his favour accordingly. 5. Upon hearing all the parties on the Intervention Application, it is found that the present intervener (Prahallad Sahoo) did neither appear before the probate Court (The District Judge) nor did make any attempt to take step to file probate proceeding before appropriate court at any point of time. The testator–Hema Chandra Sarangi admittedly died on 29th April 2001 and till filing of the present Intervention Application, nothing has been stated about any such step taken by the Intervenor in respect of the alleged Will or the properties covered therein. Even the copies of the Intervention Applications have not been served on either party to the proceeding. No excuse or explanation has been offered by the Intervenor Applicant to explain the failure on his part to contest in the probate proceeding before learned District Judge and all of a sudden he woke up in 2023, though the paper publication of issuance of notice was made in October 2019 by this Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 16-Aug-2023 17:30:47 FAO No.130 of 2008 & FAO No. 219 of 2008 Page 3 of 10 Court. It is strange to see that the alleged Will executed in favour of Prahallad Sahoo (the Intervenor) under Annexure-4, is though dated 30th December 2000, but stated to have been registered on 2nd March 2023. It is important to mention that the alleged Propounder – Prahallad Sahoo is also seen to have signed in the Will, which is quite unusual in such matters. However, this Court refrains from giving any opinion on the genuineness of the alleged Will dated 30th December 2000 executed in favour of Prahallad Sahoo. But it is made clear that this Court, by dealing with the prayer of the Intervenor to be arrayed as a party in the present appeals, is of the opinion that his prayer to intervene in the appeals at this belated stage and under suspicious circumstance is not found entertainable. As such, the prayer for intervention is rejected. 6. Next coming to the merits of the challenge in both the appeals, it needs to mention here the family relationship between the parties. Udaynath, Nagendranath (Defendant No.1) and Hema Chandra (Testator) are three sons of Banchhanidhi. Hema Chandra, the testator, was a bachelor. Udaynath had two sons, namely Bibhutibhusan (Defendant No.2) and Sashibhusan and one daughter namely Kalpalata (Defendant No.4). Sashibhushan was predeceased leaving behind his Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 16-Aug-2023 17:30:47 widow Manorama (Defendant No.3) and son Geetigunjan (Plaintiff). FAO No.130 of 2008 & FAO No. 219 of 2008 Page 4 of 10 7. As per the Plaintiff, Hema Chandra executed two Wills dated 24th November 2000 and 18th April 2001 in favour of the Plaintiff under Ext. 22 and 23 respectively. Ext. 22 is a registered Will in respect of self-acquired properties of Hema Chandra and Ext. 23 is an un- registered Will in respect of the properties fall to the share of Hema Chandra out of the joint family properties having common ancestor Banchhanidhi. The probate proceeding was in respect of both the registered and unregistered Wills. 8. The learned Probate Court upon adjudication held the registered Will under Ext. 22 as genuine and directed for probate of the same, whereas the unregistered Will under Ext. 23 was disbelieved and the prayer of the Plaintiff was rejected in that respect consequently. 9. FAO No.130 of 2008 has been filed by the Plaintiff challenging the rejection of his prayer by the Probate Court in respect of unregistered Will under Ext.23. FAO No.219 of 2008 has been filed by Defendant No.2 in respect of grant of probate under the registered Will under Ext. 22. 10. Mr. S.K Mishra, learned Senior Counsel submits for the Plaintiff that rejection of the prayer for probate in respect of the unregistered Will while granting the probate in respect of Ext. 22 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 16-Aug-2023 17:30:47 FAO No.130 of 2008 & FAO No. 219 of 2008 Page 5 of 10 holding the same as genuine is contrary to own finding of the learned District Judge and further, the grounds stated to disbelieve execution of unregistered Will are erroneous and without valid reasons. He further submits that when both the Wills are holographic, no reason is there to disbelieve the authenticity and genuineness of Ext.23 for the mere reason of unregistering the same. 11. Mr. A.C. Mohapatra, learned counsel, on the other hand submits for Defendant No.2 that the execution of both the Wills under Exts.22 and 23 are doubtful and the learned District Judge though had disbelieved Ext.23 rightly, but failed to appreciate the evidences in respect of Ext.22. He further submits that, when the Will was executed at Salepur, the registration of the same at Cuttack is something unusual and secondly, P.W.2, one of the attesting witnesses, is an interested witness for the Plaintiff and therefore his evidence should not have been believed. 12. It is seen from record that two witnesses Viz. P.W.1 and 2 were examined by the Plaintiff. P.W.1 is the Plaintiff himself and P.W.2, namely, Jayanta Kumar Nanda is one of the attesting witnesses to the Will, who is also the maternal uncle of the Plaintiff. D.W.1 is Defendant No.2 himself, D.W.2 is an independent witness and a co- Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 16-Aug-2023 17:30:47 FAO No.130 of 2008 & FAO No. 219 of 2008 Page 6 of 10 villager examined on behalf of Defendant No.2. D.W.3 is Defendant No.3 and the mother of the Plaintiff. D.W.4 is an independent witness examined on behalf of Defendant No.1. Defendant No.4 did not come to contest the case and remained ex-parte. 13. Admittedly, all the parties are the members of one family having their common ancestor Banchhanidhi. The Testator is the brother of the father-in-law of Manorama and, as such having a grandfatherly relationship with the Propounder (plaintiff). As per the evidences brought through P.W.1, P.W.2, D.W.3 and other witnesses also, the Testator was residing in the same cluster of house in the village where other parties were also residing. It is brought through evidence that the relationship between the Testator with Nagendranath was not good and a partition suit in T.S No.58 of 1996 was filed by Hema Chandra in the Court of Civil Judge (Sr.Division), Second Court, Cuttack, which was finally abated upon death of Hema Chandra. The most important thing to be examined in a probate proceeding is that, whether the Will in question has been executed in a sound state of mind and is free from all suspicious circumstances. In the instant case, the family relationship between the Testator and the Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 16-Aug-2023 17:30:47 Propounder is admitted. The filial affection of the Testator towards the Propounder has been brought through evidence in the mouth of all such FAO No.130 of 2008 & FAO No. 219 of 2008 Page 7 of 10 witnesses Viz. P.W.1, 2 and D.W.3 and others as well. It is also seen from evidence that Hema Chandra was leading a lonely life after his retirement and residing in the ancestral house at the village where the Testator and his mother were also residing. The relationship with Bibhutibhusan (Defendant No.2), the brother of deceased father of the Testator, was not good with the Testator and it is quite visible from the statements of the witnesses that Manorama and his son were taking care of the testator, who was leading a lonely life after his retirement. Therefore, it is obvious on the part of the Testator to gain some sympathy towards Manorama and his son (Plaintiff), which might have laid the ground for executing special benefit to him. The Wills under Ext. 22 and 23 are admittedly in the handwriting of the Testator. The filing of a partition suit and one F.I.R. in P.S Case No. 296/97 justify the circumstances to suggest that he did not have a good term with Defendant No.1 and 2. Only for the reason that P.W.2 is the maternal uncle of the Testator he cannot be termed as an interested witness when the evidences are clear to the effect that the Plaintiff and his mother are well acquainted with the day-to-day life of the Testator and his handwriting also. Law does not require examination of both attesting witness and for the purpose of the same, the evidence of one witness is sufficient provided the same is reliable and trustworthy. Having gone Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 16-Aug-2023 17:30:47 FAO No.130 of 2008 & FAO No. 219 of 2008 Page 8 of 10 through the evidences of P.W.2 and the corroborating factors coupled with his statements made in the cross-examination, the same do not bring out any such circumstance to doubt his veracity or interestedness in the Will in favour of the Plaintiff. The other ground urged by Defendant No.2 that the registration of the Will at Cuttack instead of Salepur is a suspicious circumstance, has no merit at all. The Testator was a Government servant and he served as a Head Clerk in the veterinary office. The Testator is a matriculate knowing Odia and English well. Therefore, the visit of the Testator to Cuttack, which is at a short distance from his place of residence, is very usual and in absence of any material to doubt the conduct on that score, no reason is left to suspect execution of the Will. Therefore, the finding of the Probate Court regarding genuineness of the registered Will under Ext. 22 is seen without any infirmity and is confirmed by this Court. 14. So far as the unregistered Will is concerned, it is not understood in the circumstances as to why the same was left unregistered though the other one was registered shortly before that. Ext.22 was registered on 24th November 2000, i.e. on the same day of its execution. Leaving Ext.23 unregistered creates a doubt in the mind of Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 16-Aug-2023 17:30:47 the Court that the same was not finalized. The admitted fact remains that the Testator died on 29.04.2001, i.e. after 11 days of alleged execution FAO No.130 of 2008 & FAO No. 219 of 2008 Page 9 of 10 of Ext.23. If the status of the Testator is considered as a retired Government servant and the fact remains that he registered the other Will on the date of its execution, then the inference is clear that the Will prepared under Ext.23 was not finalized and is at the draft stage only. The further doubt created in the mind of the Court that when the Testator chose to execute the earlier Will on 24.11.2000 then he would have executed the second Will also on the same date or he could have covered both self-acquired and joint family properties in the same Will without waiting for a second Will, had he made up his mind in respect of those joint family properties covered under Ext 23. Therefore, the doubt raised by the trial court in respect of Ext.23 that the same is not final, is found substantiated and supported by the circumstances. Accordingly, this Court does not find any infirmity in such finding of the Probate Court, which is confirmed accordingly. 15. In the result, both the appeals are dismissed being found without merit. The Original LCR be returned to the Probate Court without delay. (B.P.Routray) Judge Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 16-Aug-2023 17:30:47 C.R.Biswal/Secy. FAO No.130 of 2008 & FAO No. 219 of 2008 Page 10 of 10