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1979 Supreme(Ori) 52
High Court Of Orissa
S. Acharya And J. K. Mohanty, JJ.
KANHIALAL SARDA - Appellant
Versus
STATE OF ORISSA - Respondent
O. J. C. 1527 Of 1978
Decided On : 09/19/1979
B.H.MOHANTY, B.N.Saiha, DEEPAK MISRA, DEVANAND MISRA, G.P.MOHANTI, H.N.MOHAPATRA, K.K.RATH, P.K.Misra, P.N.Misra, R.C.MISRA, R.C.PATNAIK, R.MOHANTY, S.BISWANATH, S.C.MOHAPATRA, S.C.ROY, S.P.Choudhury, S.Rath
An executor cannot establish his right under a will in a court of law without obtaining probate, and a member of a Hindu undivided family cannot represent the entire family after a partition.
Headnote:
SUCCESSION ACT - SECTION 213 - EXECUTOR'S RIGHT - ESTABLISHMENT IN COURT - PROBATE REQUIRED - MINING LEASE RENEWAL - EXECUTOR'S RIGHT TO RENEWAL - PROBATE AS PREREQUISITE - HINDU UNDIVIDED FAMILY - COPARCENARY - PARTITION - EFFECT ON JOINT FAMILY STATUS - REPRESENTATION OF HEIRS BY ONE MEMBER - COURT'S DISCRETION IN GRANTING RELIEF.
Fact of the Case:
Petitioners, Kanhialal and Sundarlal, sought renewal of mining leases in their favor as the legal representatives of their deceased father, Baijnath Sarda. Kanhialal claimed to be the executor of Baijnath's will, while Sundarlal claimed to represent the entire Hindu undivided family. The State of Orissa resisted the petitions, arguing that probate of the will was necessary before Kanhialal could establish his right as executor, and that the coparcenary had ended due to a partition, rendering Sundarlal unable to represent the family.
Finding of the Court:
The court held that Section 213 of the Succession Act barred the establishment of an executor's right under a will in a court of law unless probate had been obtained. It further held that the partition had dissolved the coparcenary, and Sundarlal could not represent the family. The court declined to exercise its extraordinary jurisdiction to direct the State to renew the leases in favor of either petitioner.
Issues: 1. Whether an executor can establish his right under a will in a court of law without obtaining probate? 2. Whether a member of a Hindu undivided family can represent the entire family after a partition?
Ratio Decidendi: 1. Section 213 of the Succession Act mandates that no right as an executor or legatee can be established in a court of justice unless probate of the will or letters of administration have been granted. This provision creates a bar to the establishment of an executor's right under a will until probate is obtained. 2. A partition of a Hindu undivided family dissolves the coparcenary, and no member can thereafter represent the entire family.
Final Decision: The court dismissed all four writ petitions, directing the petitioners to pay costs to the State of Orissa.
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, Ch
