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2015 DIGILAW 387 (ORI)

Gourimani Jena v. Binapani Jena

2015-06-30

D.DASH

body2015
JUDGMENT This is an appeal under Section 299 of the Indian Succession Act challenging the order of the learned District Judge, Balasore-Bhadrak in O.S.No. 1 of 2007 granting probate in respect of the Will annexed accepting the prayer of the respondent. 2.Facts necessary for disposal of this appeal are as under:- One Madhabananda Jena had executed a Will in favour of his son Bhagabat Prasad Jena on 13.1.1998. It is said that the Will was duly executed by Madhabananda followed by its registration in the District Sub-Registrar Office, Balasore on that very day. The Will is said to be the last Will and testament of said Madhabananda Jena who died on 24.9.1998. The beneficiary under the Will namely, Bhagabat Prasad Jena died unmarried on 22.05.2001. The respondent claiming to be the sole legal heir of Bhagabat Prasad Jena has sought for grant of the probate as aforesaid. It is stated that the said Will being duly executed by Madhabananda Jena was also attested in accordance with and as required under law. The Will is asserted to be genuine and authenticate one. The appellant appearing in the said probate proceeding contested the claim for grant of probate of the Will, claiming herself to be the second wife of the testator Madhabananda Jena. She also challenged that the Will was not duly executed and attested. It is her case that the Will was fraudulently created for the purpose of usurping the property of Madhabananda Jena depriving the appellant of her lawful claim over it. She also claims to have the right to succeed to the property of Madhabananda Jena with the respondent. 3.The learned District Judge on going through the evidence adduced by the respondent and also the certified copy of the Will proved as secondary evidence has finally granted the probate as prayed for and that is now under challenge in this appeal. 4.Heard the learned counsel for the parties. Perused the petition for grant of probate to the Will said to have been executed by the Madhabananda Jena on 13.1.1998. I have also perused the petition filed by the present appellant for being impleaded as a party and her objection to the petition for probate. 5.It reveals from the lower Court record that by order dated 3.12.2003, the petition for grant of probate to the so-called Will as prayed for by the petitioner was admitted. I have also perused the petition filed by the present appellant for being impleaded as a party and her objection to the petition for probate. 5.It reveals from the lower Court record that by order dated 3.12.2003, the petition for grant of probate to the so-called Will as prayed for by the petitioner was admitted. The order was also passed for issuance of notice to the opposite party in both ways and also for issuance of general citation. In fact, the petitioner had not impleaded any one as opposite party in the cause title of her petition nor it has been so indicated in the cause title of the Court’s first order sheet. The present appellant has been arraigned as an opposite party on the basis of her suo moto appearance and filing of the petition dated 31.7.2006 which was allowed by order dated 20.10.2006, Thereafter, she filed her objection. In the petition filed by the respondent, it stands as the averment as para-9 that the name of the other relative of the deceased-testator has been given in schedule ‘B’ and schedule ‘B’ finds mention as the following:- Gitanjali Das aged about 22 years, W/o Sanjaya Das of village Naharjara, P.O- Purunda, P.S. Belda, Dist. Midnapur. The order sheet reveals that there was no service of notice upon the said Gitanjali Das and simply because service return of general citation was received back, the probate petition was posted for hearing. Now when the objection filed by the present appellant is perused, it is seen that she has objected to the address of that Gitanjali Das given in the petition as not correct. Specifically, she has stated that the opposite party was then residing at Raisuan, Balasore. Furthermore, in her objection, she has clearly stated her status to be the legally married wife of Madhabananda after death of Madhabananda’s first wife while simultaneously pleading that this respondent was working as a maid servant for looking after the household work and taking care of ailing first wife of Madhabananda. It is also stated that Gitanjali Das is the daughter of Madhabananda being born to her. Nowhere in the petition for probate either the relationship of Gitanjali Das with the deceased-Madhabananda or any such relationship to have been so claimed by Gitanjali Das has been indicated though it was incumbent upon the respondent to state so. It is also stated that Gitanjali Das is the daughter of Madhabananda being born to her. Nowhere in the petition for probate either the relationship of Gitanjali Das with the deceased-Madhabananda or any such relationship to have been so claimed by Gitanjali Das has been indicated though it was incumbent upon the respondent to state so. Thus, it appears that said Gitanjali Das has not been noticed which was mandatory in a proceeding of this nature. In the entire order sheets, said service of notice upon Gitanjali has not been mentioned. The service of notice as above mentioned being mandatory as required under Section 283 of the Indian Succession Act, the final order of grant of probate with Will annexed becomes vulnerable. 6.In that view of the matter without going into the merit of the case, this Court is constrained to set aside the order dated 30.9.2010 passed by the learned District Judge, Balasore-Bhadrak in O.S. No. 1 of 2007 granting the probate in respect of the Will annexed accepting the prayer of the respondent. 7.In the result, the appeal stands allowed and in the peculiar facts and circumstances of the case without cost. The order of grant of probate as above is hereby set aside and the matter is remitted to the Court of learned District Judge, Balasore to proceed afresh by issuance of notice to Gitanjali Das as indicated and dispose of the petition for grant of probate on merit in accordance with law after giving due opportunity of production of further evidence and hearing to the parties. Appeal allowed.