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2016 Supreme(Ori) 764
IN THE HIGH COURT OF ORISSA, CUTTACK
D. DASH, J.
Smt. Malli Sahuani @ Sahu and Anr. - Appellants
Versus
Khadali Swain and others - Respondents
R.F.A. No. 329 of 2007
Decided On : 01-11-2016
For the Appellants :M/s. U.C. Panda, advocate.
For the Respondents:M/s. L. Bhuyan, M. Mohanty, S. Misra, B. Panigrahi, D. Patnaik, S.K. Sahoo, E. Agarwal, advocates.
The main legal point established in the judgment is that the consolidation authorities had no jurisdiction to decide the validity of the Will, and their decision on the Will was null and void.
Headnote:
Will - Property Dispute - OCH & PFL Act - [section 51, section 4(4), section 213, section 66, section 68, section 3(3), section 213(2)(i), section 57 of the Indian Succession Act] - The court discussed the validity of the Will, the jurisdiction of the consolidation authority to decide on the Will, and the legal requirements for accepting a Will as a document of title. The judgment emphasized the need for probate and the burden of proof on the propounder of the Will. The court found that the consolidation authorities had no jurisdiction to decide the validity of the Will and that their decision on the Will was null and void. The trial court's findings on other issues were dependent on the decision regarding the Will and were therefore set aside. The suit was remanded to the trial court for a fresh decision in accordance with the law.
Fact of the Case:
The plaintiffs sought to declare a Will null and void, claiming ownership of the suit land. The trial court dismissed the suit based on the validity of the Will and other related issues.
Finding of the Court:
The court found that the consolidation authorities had no jurisdiction to decide the validity of the Will and that their decision on the Will was null and void. The trial court's findings on other issues were dependent on the decision regarding the Will and were therefore set aside. The suit was remanded to the trial court for a fresh decision in accordance with the law.
Issues: The main issue revolved around the validity of the Will and the jurisdiction of the consolidation authority to decide on the Will. Other issues included the ownership of the suit land and the recording of right in the consolidation operation.
Ratio Decidendi: The court held that the consolidation authorities had no jurisdiction to decide the validity of the Will and that their decision on the Will was null and void. The trial court's findings on other issues were dependent on the decision regarding the Will and were therefore set aside.
Final Decision: The appeal was allowed, and the suit was remanded to the trial court for a fresh decision in accordance with the law.
JUDGMENT :
1. The unsuccessful plaintiffs in the court below have filed this appeal challenging the judgment and decree passed by the learned Civil Judge (Sr.Divn.), Bhanjanagar in C.S. No. 26 of 2003 dismissing their suit.
2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court.
3. Plaintiff no. 1 is the mother of plaintiff no. 2. They filed the suit seeking declaration that the Will said to have been executed by Mahadei bequeathing the suit land in favour of Sita Swain, the wife of defendant no.1 as null and void, not acted upon and binding on them and so also the consequential recording of the suit land in the consolidation operation in the name of said Sita with further declaration that the sale deeds executed by defendant no.1, the husband of Sita transferring the suit land in favour of defendant nos. 13, 14 and 15 are void. They also prayed for declaration of their right, title and interest over the suit land, confirmation of possession and in the alternative for recovery of possession followed by permanent injunction.
4. Plaintiff no. 1 is the widow of Arjun Sahu, being his second wife. The suit properties were purchased by Arjun Sahu under different sale deeds in the name of his first wife, Mahadei. Since no child was born to Arjun through Mahadei, Arjun married the plaintiff no. 1 again. So it is said that in order to appease Mahadei, the properties were purchased in her name when Mahadei had no source of income. Therefore the properties are said to be the absolute property of Arjun purchased benami in the name of his first wife Mahadei. The defendant no. 1 is Arjun’s sister’s son and he had no paternal property. It is said that at times he was coming to the house of Arjun and assisting him in the cultivation work. Thus it is said that the purchase of the properties in the name of Mahadei being known to him, he started to make plan for grabing the same. It is stated that since Mahadei was very much annoyed with Arjun for his second marriage, this defendant no. 1 took advantage of it and became very close coming to the confidence of Mahadei. The allegation remains that on 18.03.1978, this defendant no.1 influencing Arjun created a registered deed of acknowledgement of adoption in his favour that he had been adopted by Arjun and Mahadei. This was not within the knowledge of Arjun. So subsequently when he came to know about it, he cancelled it. It is also next stated that in spite of such cancellation believing the document to an authority in favour of Khadali to look after the land and family affairs, he had been so permitted by the defendant no. 1. The next allegation comes that in order to grab the property standing in the name of Mahadei, said defendant no. 1 again managed to create a registered Will on 30.1.1979 wherein Mahadei purported to have bequeathed the suit land in favour of Sita Swain, the wife of defendant no. 1 describing her status as her daughter-in-law. It is alleged that the defendant no. 1 created the Will without the knowledge of Mahadei and hatching a plan got it registered although it was known to all that Mahadei had no absolute right over the property.
On the basis of this Will after death of Mahadei, the defendant no. 1 made further progress in getting the record of right of the property covered under the said Will corrected and the recording was accordingly obtained. In the year 1986 Arjun received a notice and then appeared. It is alleged that the consolidation officer without due enquiry passed the order for change of recording basing on that fake Will without inviting any objections. In the meantime, said Arjun by a registered gift deed had gifted the land measuring Ac.1.08 decimals to the plaintiffs and delivered possession of the same. There was an appeal against the change of land record on the basis of the Will by the consolidation authority and that did not succeed. So a re
