Research › Browse › Judgment

Orissa High Court · body

1973 DIGILAW 198 (ORI)

GANESH MOHAPATRA v. UDAYNATH MOHAPATRA

1973-08-30

B.K.RAY

body1973
JUDGMENT : B.K. Ray, J. - The Defendant is the Appellant. 2. This appeal arises out of O.S. No. 35, 26 of 1966 65 II instituted by the Plaintiff-Respondent in the Court of the Subordinate Judge, Puri for grant of letters of administration in respect of the estate of one Kishori Bewa. According to the case made out in the plaint, Kishori Bewa bequeathed all her properties described in the Schedule attached to the plaint in favour of the Respondent by a Will executed by her on 1-3-1943. The Will was registered the same day before the Sub-Registrar, Puri. She having died on 27 -2-1946, the Respondent filed the suit for grant of letters administration with a copy of the Will annexed to it. 3. The Appellant challenged the Will dated 1-3-1943 of Kishori Bewa on the allegation that the properties bequeathed by her under the said Will originally belonged to one Gopinath Mohapatra, husband of Kishori Bewa and that Gopinath bequeathed these properties in favour of the Appellant by a Will dated 26-12-1942. According to the Appellant, he got probate of the Will on 26-7-1943, and therefore, the Respondent was not entitled to the grant of letters of administration in respect of the very same properties of late Gopinath Mohapatra without revoking the grant of probate or letters of administration in favour of the Appellant in Misc. Case No. 1 of 1943 of the Court of the District Judge, Puri. 4. The trial Court having decreed the suit, the Appellant has preferred the present appeal. 5. The trial Court upon the evidence adduced by the parties has come to a finding that the Will had been duly and validly executed by Kishori Bewa and that she was in a sound disposing state of mind at the time d execution of the said Will. This finding, however, is not challenged by the Appellant before me. The only point raised by Mr. R. Mohanty, learned Counsel for Appellant is as follows: u/s 57 of the Indian Succession Act, 1925, a Hindu is not authorised to bequeathed the property which he cannot alienate inter vives. The properties which are the subject-matter of the Will said to have been executed by Kishori Bewa originally belonged to late Gopinath Mohapatra, husband, of Kishori Bewa. This Gopinath Mohapatra during his life time bequeathed the properties in favour of the Appellant by a Will dated 26-12-1942. The properties which are the subject-matter of the Will said to have been executed by Kishori Bewa originally belonged to late Gopinath Mohapatra, husband, of Kishori Bewa. This Gopinath Mohapatra during his life time bequeathed the properties in favour of the Appellant by a Will dated 26-12-1942. On the death of Gopinath Mohapatra, the Appellant in Misc. Case No. 1 of the Court of the District Judge, Puri was granted a probate certificate on 26-7-1943. Thereafter, according to Mr. Mohanty, Kishori Bewa, widow of late Gopinath had no power to transfer the very same properties interviews. That being the position, u/s 57 read with Schedule III of the Indian Succession Act, she bequeathed the very same properties in favour of the Respondent. It is further contended by Mr. Mohanty that in Misc. Case No. 1 of 1943 which was initiated by the Appellant for a probate in respect of the Will executed by late Gopinath Mohapatra, citation was issued to Kishori Bewa who was the heir of late Gopinath Mahapatra. In spite of this, she did not contest and ultimately probate was granted in favour of the Appellant. That being so, she was bound by the final order in the said Misc. Case and had therefore no right to apply for revocation. According to Mr. Mohanty, Kishori Bewa had no right to execute the impugned Will in favour of the Respondent and the decision in Misc. Case No. 1 of 1943 operated as res judicata, and therefore, Kishori Bewa being herself a party to Misc. Case No. 1 of 1943 was bound by the decision of that case. For these propositions of 1943 was bound by the decision of that case. For these propositions of Mr. Mohanty, reliance is placed on the decisions reported in Bibhuti Prasad Chaudhury and Others Vs. Mt. Pan Kuer and Others AIR 1930 22 (Privy Council) and Damoderlal v. Gopinath AIR 1956 Nag. 209. 6. Mr. R.N. Das, learned Counsel for Respondent urges that in a proceeding for grant of probate or letters of administration, what is required to be decided is as to whether the testator was in a sound disposing state of mind at the time of execution of the Will and as to whether the Will was duly and validly executed by the testator as required under the law. Grant of letters of administration or of probate has nothing to do with the determination of the question of title in respect of the properties covered under the Will. In support of his contention, he relies upon a decision reported in Ishwardeo Narain Singh Vs. Sm. Kamta Devi and Others, . 7. On a consideration of the respective contentions of learned Counsel for both parties, I am of the view that the scope of a proceeding for grant of letters of administration or of probate is to decide whether the Will has been duly executed and attested as required under the law and as to whether the testator was having a sound disposing state of mind at the time of execution of the Will. The question as to whether he had a right to bequeath the properties under the Will executed by him is wholly foreign to the proceeding for probate or letters of administration. The party who unsuccessfully contends in a proceeding for grant of letters of administration or probate that the testator was not in a sound disposing state of mind at the time of execution of the Will or that it was not validly or duly executed as required under the law is not precluded from instituting a suit for a declaration that the testator had no right, title or interest in the properties be quashed under his Will and that they belonged to him. This being the position of law, in my opinion, there was no bar for the tried Court to grant letters of administration in favour of the Respondent in respect of the Will said to have been executed by Kishori Bewa in his favour. So far as the valid execution of the Will by Kishori Bewa is concerned, the matter is concluded and Mr. Mohanty does not challenge the finding of the trial Court to the effect that the Will was duly and validly executed and that Kishori Bewa was in a sound disposing state of mind at the time of its execution. The Will takes effect upon the death of the testator. Therefore, the letters of administration or probate that was granted to the Appellant in respect of the Will executed by late Gopinath Mohapatra in his favour in Misc. Case No. 1 of 1943 has taken effect from the date of death of Gopinath Mohapatra. The Will takes effect upon the death of the testator. Therefore, the letters of administration or probate that was granted to the Appellant in respect of the Will executed by late Gopinath Mohapatra in his favour in Misc. Case No. 1 of 1943 has taken effect from the date of death of Gopinath Mohapatra. It that be so, upon grant of letters of administration or probate in favour of the Appellant in the said misc. case, he became the full and absolute owner of the properties left by late Gopinath Mohapatra and covered by his Will. It follows therefore that Kishori Bewa had no right, title or interest in the properties covered under the Will of late Gopinath Mohapatra in respect of which letters of administration or probate had been granted in favour of the Appellant. Hence, grant of letters of administration or probate in favour of the Respondent in respect of the Will executed by Kishori Bewa would have no effect on the right title and interest of the Appellant in the properties covered by the Will of late Gopinath Mohapatra and subsequently covered under the Will of Kishori Bewa. But since these questions of title so not come within the purview of the proceeding for grant of letters of administration out of which the present appeal arises, the observations made above regarding Appellant's title to the properties covered under the Will of late Gopinath Mohapatra need not be taken to be a final decision on the question of title. What I mean to say is that in spite of the probate or letters of administration granted in favour of the Respondent in respect of the Will executed by Kishori Bewa, Appellant's title to the suit properties, if any, would remain unaffected and it would still be open to him to clear his title in respect of the same properties in a properly constituted suit in spite of the decree obtained by the Respondent in the trial Court. The decision referred to by Mr. Mohanty would have the effect of precluding him from challenging the finding of the trial Court to the effect that Kishori Bewa was in a sound disposing state of mind at the time she executed her Will and that the said Will was validly and duly executed as required under the law. 8. The decision referred to by Mr. Mohanty would have the effect of precluding him from challenging the finding of the trial Court to the effect that Kishori Bewa was in a sound disposing state of mind at the time she executed her Will and that the said Will was validly and duly executed as required under the law. 8. On the aforesaid analysis of the points of law raised by the learned Counsel for both parties, I do not find any reason to interfere with the judgment and decree passed by the trial Court, and therefore, they are confirmed and the present appeal is dismissed with costs.