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2002 DIGILAW 556 (ORI)

DAMODAR MAHASUAR v. RAGHUNATH MAHASUAR

2002-08-28

B.P.DAS

body2002
JUDGMENT : B.P. Das, J. - This revision application arises out of the order dated 15.11.2000 passed in Misc. Case No. 133 of 1994 by which the District Delegate. Civil Judge (Senior Division), Puri has rejected the application filed by the present petitioner with a prayer to consider the question of maintainability of the misc. case as a preliminary issue since O.P. No. 1-Raghunath Mahasuar has no locus standi to file the said misc. case, which is an application u/s 263 of the Indian Succession Act, 1925 (hereinafter called 'the Act') praying for revocation of the letters of administration granted in favour of the present petitioner-Damodar Mahasuar u/s 278 of the Act in respect of the property of the deceased Biswanath Khuntia, in Misc. Case No. 47/11 of 1993. 2. At the threshold it is worthwhile to mention that the application u/s 278 of the Act was initially filed before the District Judge, Puri. who transferred the said petition to the Court of the District Delegate, Civil Judge (Senior Division). Puri. being a non-contentious matter basing upon a declaration made in column 3 of the application to the effect "the deceased testator has left no relative of his own." 3. Briefly stated, the facts leading to the present revision application are that Damodar Mahasuar, the present petitioner, filed an application u/s 278 of the Act, registered as Misc. Case No. 47/11 of 1993 and on the same being allowed, letters of administration was granted in favour of Damodar. Thereafter the present opposite party No. 1-Raghunath Mahasuar filed an application u/s 263 of the Act, registered as Misc. Case No. 133 of 1994, for revocation of the aforesaid letters of administration so granted by the District Delegate by order dated 28.1.1994 in respect of the property of late Biswanath Khuntia, alleging that the Will, on the basis of which the grant had been made in favour of Damodar, was a forged and manufactured document. It was further alleged therein that the testator-Biswanath Khuntia died at the age of 35 years by committing suicide on 5.3.1988; inquest was held and autopsy over the dead body was conducted on the same day and a case was registered as U.D.G.R. No. 38 of 1988, which ended in submission of final report by the Police, and the death was not due to any illness, as contended by Darrjodar. It was further sated that, Artatrana, Dinabandhu, brothers of Damodar. and Raghunath, and-Dasarathi, Radhamohan and Laxminarayan being the mother's brothers of the deceased are his Class-II heirs, but Damodar with an oblique motive, falsely stated in his application u/s 278 that the deceased "testator has left no relative of his own" Basing upon the aforesaid allegations, revocation of the letters of administration was sought for by Raghunath. In the aforesaid application for revocation of the letters administration i.e. Misc. Case No. 133 of 1994, the present petitioner-Damodar filed an application praying to treat the question of locus standi and maintainability of the application for revocation as a preliminary issue and decide the same first before proceeding with the application u/s 263 of the Act. The District Delegate after hearing both the parties rejected the application filed by Damodar and proceeded for hearing of the misc. case. The rejection of the aforesaid application is challenged in the present revision application. 4. Shri P.K. Mohanty appearing for the petitioner submits that O.P. No. 1-Raghunath has no interest in the estate of the testator and there is also no chance of his succeeding to the property of the testator for which the application for revocation filed by him (Raghunath) is not maintainable, and this being a pure question of law and when Raghunath has no interest in the disputed property, the application for revocation of the letters of administration is not maintainable at his instance, the same can be decided as a preliminary issue. According to the learned Counsel for O.P. No. 1 the father of O.P. No. 1 and three Ors. are the maternal uncles of the deceased testator and as such they are Class-II heirs, which fact was suppressed in the application filed u/s 278 of the Act. It is further argued that Raghunath is a presumptive reversioner being a cognate of the deceased testator and that too a part of the disputed property, which was included in the will, had been sold prior to the execution of the Will by the deceased testator to the present opposite party No. 1 and the interest of O.P. No. 1 shall be jeopardised if the letters of administration is allowed to remain operative. 5. 5. Considering the rival contentions of the parties, the District Delegate ultimately came to the conclusion that the locus standi of the present petitioner-Damodar is dependent upon certain aspects, which cannot be decided without delving into the fact for which it cannot be decided as a preliminary issue. It was further observed by the. district delegate that the question of locus standi of the petitioner cannot be tried as a preliminary issue but the said question alongwith other aspects, such as, just cause for revocation, etc' would be decided at the time of hearing of the misc. case with the available evidence on record. 6. Shri Mohanty for the petitioner draws my attention to the decision reported in 2000 (4) CCC 374 (Bom) Perviz Sarosh Batliwalla v. Villo Plumber. Wherein while deciding the question of revocation in the light of the provision of Chapter III dealing with Parsi intestates, the Court observed that as the petitioners did not fall within the purview of Section 51 of the Act to be treated as heirs of the deceased, they would not be entitled to file a Caveat against the probate of the will and therefore, they would also not be entitled to maintain the present petition for revocation of the probate. In other words, they have no locus standi for moving that Court in view of Section 51 of the Act, dealing with division of intestate's property among widow, widower, children and parents of a Parsi who dies intestate. Shri Mohanty next refers to a decision reported in Smt. Dular Kuer Vs. Smt. Kesar Kuer and Others wherein it was observed thus: ...Section 263 shows that a grant made without citing parties who ought to have been cited, is fit to be revoked. The question, however, is whether the Applicant in this case can be said to have any interest-whether slight or otherwise in the testator's estate at the time of the testator's death in other words, was there any possibility of her succeeding to the testator's estate, assuming that there was no will and he had died intestate. If the answer to this question is in the negative, it must be held that the Applicant had no locus standi to claim citation or to oppose the grant, and. accordingly, her present application for revocation of the same would not be maintainable. If the answer to this question is in the negative, it must be held that the Applicant had no locus standi to claim citation or to oppose the grant, and. accordingly, her present application for revocation of the same would not be maintainable. He then refers to the decision reported in Murlidhar Deonath Samel Vs. Sadashiv Deonath Samel and others, wherein it was held that step son who has no chance of succeeding to the property of a testator cannot maintain an application for revocation of probate. The aforesaid decisions have been cited by Shri Mohanty to fortify his contention that the present O.P. No. 1 has no locus standi if maintain the application for revocation of the letters of administration. 7. The scope of determining an issue as a preliminary issue came up for consideration by this Court in 88 (1999) CLT 303 Hindusthan Times Ltd. v. Mrs. Prafulla Kumari Bindhani wherein it was held that a question relating to jurisdiction of a Court might be a pure question of Taw or a mixed question of law and fact. The judicial opinion was. however, unanimous that an issue relating to Court's jurisdiction could be tried as a preliminary issue only if it could be disposed of without recording any evidence, but if such an issue is a mixed question of law and fact, if cannot be tried as a preliminary issue. A Division Bench of this Court the decision reported in Shyama Sundar Mohapatra Vs. Janaki Ballav Patnaik and Others, held that: ...whether an issue is to be tried as a preliminary issue or not is at the discretion of the trial Court and while exercising its discretion the Court must be satisfied that the suit or any part thereof may be disposed of on an issue of law only and that issue relates to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force. From the aforesaid judicial pronouncements it is clear that locus standi to maintain an application for revocation is an issue, which, in the present case, can only be gone into during the cause of final hearing of the case with the available evidence on record. From the aforesaid judicial pronouncements it is clear that locus standi to maintain an application for revocation is an issue, which, in the present case, can only be gone into during the cause of final hearing of the case with the available evidence on record. This cannot be decided at one stroke since it is not a pure question of law since in the case at hand there are allegations of fraud and suppression of fact. It is further submitted that the matter was dealt with by the District Delegate treating it to be a non-contentious case basing upon the declaration of the present petitioner that the testator had no Relative of his own. Now Shri Mohanty submits that the opposite party who applied for revocation of letters of administration has no locus standi. In this regard I may refer to a decision reported in AIR 1994 PC 11 Sarala Sundari Dassya v. Dinabandhu Roy Brajaraj Sana, wherein it was held as follows: It is suggested that it is only those persons who could be cited before the grant of probate who are the persons who could apply to revoke the probate. In their Lordships, view that is putting it on much too narrow a footing. One of the grounds for revoking probate is that the grant was obtained fraudulently by making a false suggestion. Which obviously covers the case of putting forward a forged Will, just as (c) could cover the case of a person putting forward a forged will even if when he or she propounded it he or she did not know it as a forged will. In dealing with the first point, that the grant was obtained fraudulently, it appears to their Lordships to follow as a matter of course that if a person is complaining that he has in fact been defrauded, he is one of the persons who is injured by the fraud alleged and that the person is entitled to have his redress by applying to revoke the Probate and thereby cause the fraud to become inoperative. If he had no such a right as that, it is very difficult to know what night a creditor circumstances, or a person injured by the fraud, could have, otherwise the probate would stand and he would be affected by the probate which had been obtained exhypothesi fraudulently.-That is the view which was taken by their Lordships in 10 I.A. 80 : Rajah Nilmoni Singh Deo Bahadoor v. Umanath Mookerjee. It has been followed since in Calcutta, and their Lordships feel satisfied that in this case the Applicants for revocation had every ground for applying and had a proper locus standi to come into Court and ask that the (sic) should be revoked. In the case reported in AIR 1973 Cal 140 Smt. Sima Rani Mohanty v. Puspa Rani Pal, the Court held that- It is now well-settled that any intestate, however slight and even me bare possibility of an interest, is sufficient to entitle a person to make an application (or revocation.... Without expressing any opinion on the question of focus standi of She present opposite party, which shall be dealt with by the appropriate forum. I am of the mew that the aforesaid judicial pronouncements are sufficient to throw light on the dispute raised by the petitioner regarding locus standi of the opposite party At this stage, a question is raised, even though the same was not raised the revision application. that the District Judge and not the District Delegate has She jurisdiction to deal with the issue of revocation u/s 263 of die Act. in the background facts and circumstances of the case, the letters of administration was granted by the District Delegate treating the same to be a non-contentious case, which is latter on round to be a contentious issue, (have already stated in the foregoing paragraphs the circumstances under which the matter was transferred to the District Delegate, which cannot be lost signr of. In this regard reference can be made to the decision reported in AIR 1984 Cal 385 Kailash Chandra v. Manda Kumar, wherein it was held that an application for revocation of a probate being a contentious matter could not be decided of the District Delegate. But here is a case where letters of administration has Seen granted by District Delegate. In this regard reference can be made to the decision reported in AIR 1984 Cal 385 Kailash Chandra v. Manda Kumar, wherein it was held that an application for revocation of a probate being a contentious matter could not be decided of the District Delegate. But here is a case where letters of administration has Seen granted by District Delegate. Looking into the decisions in Kailash Chanara's case as well as Sima Ram Mohanti's case (supra), while dismissing the revision application arid not interfering with the impugned order passed by the District Delegate, so far as it relates to the examination of the question of locus standi as a preliminary issue. I direct that botht he matters, i.e. application for grant of fetters of administration u/s 278 at the application u/s 263 of the Act shall be deal with and disposed of in accordance with law by end of December. 2002. Accordingly the District Delegate is directed to transmit the record of Misc. Case No. 133 of 1994 to the District Judge. The Civil revision is dismissed with the above order. No cost.