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2010 Supreme(Ori) 24
AIR 2010 Ori 174
IN THE HIGH COURT OF ORISSA
M.M. Das, J.
Smt. Subasini Choudhury – Appellant
Vs.
Smt. Bisakha Kar and Ors. – Respondent
Decided On: 13.01.2010
The main legal point established in the judgment is the onus of proving the will on the propounder and the absence of suspicious circumstances surrounding the execution of the will.
Headnote:
Probate - Indian Succession Act - Section 276 - Summary: The court analyzed the probate case filed for the will of late Rama Chandra Kar, and discussed the genuineness of the will, the presence of suspicious circumstances, and the legal requirements for probate. The court referred to the Indian Succession Act, Section 63, and various case laws to establish the genuineness of the will and the lack of suspicious circumstances.
Fact of the Case:
The appeal challenged the dismissal of the Probate Misc. Case filed for the will of late Rama Chandra Kar. The court analyzed the findings of the lower court and the arguments presented by the appellant's counsel.
Finding of the Court:
The court found that the lower court had erred in arriving at certain findings and dismissing the Probate Misc. Case. It concluded that the will was genuine, there were no suspicious circumstances, and the testator executed the will while in sound health and mind.
Issues: The issues revolved around the genuineness of the will, presence of suspicious circumstances, and the legal requirements for probate. The court also addressed the non-registration of the will and the implications of not involving certain parties in the probate case.
Ratio Decidendi: The court relied on the Indian Succession Act, Section 63, and various case laws to establish the genuineness of the will and the lack of suspicious circumstances. It emphasized the onus of proving the will on the propounder and the absence of suspicious circumstances surrounding the execution of the will.
Final Decision: The court set aside the impugned judgment, directed the probate of the will, and ordered the issuance of a letter of administration in favor of the appellant.
JUDGMENT
M.M. Das, J.
1. This appeal has been filed challenging the Order Dated 15.5.2004 passed in Probate. Misc. Case No. 5 of 2003 by the Learned Civil Judge (Senior Division), Bhubaneswar.
2. The Petitioner in the said Probate Misc. Case is the Appellant before this Court. She filed the said case for probate of a Will Under Section 276 of the Indian Succession Act. The case of the Petitioner was that the residential house site over plot No. 3 in Unit-III, Bhubaneswar City having an area of Ac.0.500 decimals belongs to late Rama Chandra Kar, S/o. Late Banchhanidhi Kar of Dargha Bazar, Cuttack. The said Rama Chandra Kar died on 5.3.1996 at S.C.B. Medical College & Hospital, Cuttack. Before his death, he executed his last Will & testament in favour of the Petitioner on 14.11.1995 in presence of the witnesses. Initially, no Opp. Parties were impleaded in the said Probate Misc. Case. But subsequently, by an order passed by the Learned District Judge, Khurda at Bhubaneswar on 5.7.1999, one Smt. Bisakha Kar, the State of Orissa through the Secretary, G.A. Department & the Director of Estates, Government of Orissa, G.A. Department were added as Opp. Parties in the said Probate Misc. Case. When the matter was pending before the Court below, a finding has been recorded in the impugned order that in spite of sufficiency of service of notice, the Opp. Parties, who were arrayed as parties, did net appear in the said case, except the State of Orissa. The Learned Court below, while ultimately dismissing the Probate Misc. Case, in the impugned order has made certain observations & arrived at certain findings, as stated herein below:
(i) The Will is an unregistered Will even though the testator beneficiary & the witnesses went to the Sub-Registrar Office for the execution of the Will on 11.11.1995, no explanation is given as to why the Will was not registered.
(ii) In the initial stage of the case, the application for probate was tiled without impleading Bisakha Kar & the State Government as parties.
(iii) That the beneficiary & the attesting witnesses who are examined as & P.W.1, P.W.2 & P.W. 3 respectively, could not say the name of the typist who typed the Will & they also could not say who filled up the blank space in page 3 of the Will.
(iv) All the P.Ws admitted that the testator has one daughter, namely, Bisakha Kar as the only legal heir to succeed to the property of the testator, & the consent of Bisakha Kar has not been obtained in the Will.
(v) The intention of the testator is not explained for executing the Will in favour of a complete outsider while there is a legal heir to succeed to the whole property of the testator. Such a situation is highly Suspicious.
(vi) No relations or any independent advisor of the testator were present at the time of execution of the Will.
(vii) The witnesses to the Will are not related to the testator & they have no previous acquaintance with the testator. The witnesses are picked up
(viii) While the P.W. No. 2 in the cross-examination by the State stated that he came to the residence of P.W.1 where he found the testator, the P.W. 3 & the Doctor were there & they all came to Okil Khana, the P.W.3 stated in the cross-examination by the State that he came directly to Okil Khana.
(ix) P.W. 2 has stated in the cross-examination by the State that the Doctor - D.C. Pantia examined the testator & found him in good health & in sound mind & gave a certificate. The said certificate was not produced in the Court nor was the doctor examined.
(x) In the Court of the Civil Judge (Sr. Division), Cuttack, a Civil Suit bearing T.S. No. 32 of 1978 involving the suit property is pending.
(xi) Though the witnesses for the Plaintiff have stated that the testator was in sound health & sound mind, he died after four months of the execution of the Will. Each of the above observations & findings have been challenged in the appeal.
3. During the course of hearing of the appeal, Learned Counsel for the State submits that the property unde
