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2015 DIGILAW 451 (ORI)

Ritesh Kumar Patel v. Kishore Chandra Patel

2015-08-03

K.R.MOHAPATRA

body2015
JUDGMENT : K.R. MOHAPATRA, J. 1. The appellant as plaintiff calls in question the judgment and decree dated 25.1.2012 and 9.2.2012 respectively passed by the learned Civil Judge (Senior Division), Karanjia in C.S. No. 8 of 2010 in this appeal. 2. Plaintiff filed Civil Suit No. 8 of 2010 for declaration of title in respect of the land to an extent of Ac. 1.83 decimals appertaining to Plot No. 571 under Khata No. 96/19 of Mouza Handipuhan in the district of Mayurbhanj (for short, the suit land) on the basis of a will executed by one Rambhabati Patel. 3. The plaint story in brief is that the suit property was acquired by one Rambhabati Patel, who is grandmother of the plaintiff-appellant. Subsequently, the suit property was recorded in the name of said Rambhabati in the ROR published in the year 1985 (Ext-3). Said Rambhabati Patel had executed a plain paper will (Ext.2) in favour of the plaintiff on 11.6.2000 voluntarily bequeathing the suit land in favour of the legatee (plaintiff) and put him in possession of the suit property. Rambhabati Patel breathed her last on 3.12.2000 leaving behind three sons and one daughter, who are defendants/respondent nos. 1 to 3 and defendant/respondent no. 7 respectively. Defendant Nos. 4 to 6 are successors-in-interest of predeceased son of said Rambhabati, namely, Kamaleshwar Patel. Plaintiff is the son of defendant no. 1, namely, Kishore Chandra Patel. It is the case of the plaintiff that suit will is in respect of the properties situated in the district of Mayurbhanj and no probate under the provisions of Indian Succession Act, 1925 (for short, the Act) is required under law in the district of Mayurbhanj to establish the right of legatee in respect of the suit land. The defendants did not cooperate to record the suit land in favour of the plaintiff on the basis of the will after death of said Rambhabati Patel for which the suit was filed for the aforesaid relief. 4. The defendants filed their written statement admitting the execution of the will, but denied the allegation of non-cooperation on their part for recording the suit land in the name of the plaintiff on the basis of the will. 4. The defendants filed their written statement admitting the execution of the will, but denied the allegation of non-cooperation on their part for recording the suit land in the name of the plaintiff on the basis of the will. On the other hand, they submitted that the plaintiff being the lawful owner of the "A" schedule property is entitled to mutate his name and only due to pre-occupation and time constraints of the defendants, the mutation could not be carried out in time. Hence, they prayed for disposal of the suit in the light of Order 6 Rule 12, CPC. 5. Taking into consideration the rival pleadings of the parties, the learned Civil Judge framed as many as four issues. The main issues for consideration before the learned trial Court were issue Nos. 2 and 3, which are reproduced herein below. 2. Whether the plaintiff has got a valid cause of action to bring this suit in this Court? 3. Whether the right, title and interest of the suit property can be declared in favour of the plaintiff? 6. To substantiate his case, the plaintiff examined himself as PW-2, Scribe of the will as PW-1 and exhibited the documents, like the will as Ext. 1, Registered Sale Deed executed in favour of said Rambhabati Patel as Ext.2 and Ext.3, the ROR of the year 1985. The defendants, on the other hand, neither examined any witness nor produced any document in support of their case. 7. On consideration of the pleadings and materials available on record, learned Civil Judge came to a categorical finding that the will, i.e. Ext-1 was validly executed in favour of the plaintiff by the testator of the will, namely, late Rambhabati Patel. Further, the learned Civil Judge held that late Rambhabati, the testator of the will, was the title-holder of the suit property at the time she bequeathed the same in favour of the plaintiff through testamentary disposition, i.e. Ext.1 But, at the same time, the learned Civil Judge held that declaration of title cannot be made in favour of the plaintiff on the strength of the will in view of the bar enumerated under Section 213 of the Act, unless the said will is probated through a letter of administration received by the legatee. Further, he held that there is no cause of action available for the plaintiff and the cause of action given in the plaint appears to be imaginary or false. Accordingly, the learned Civil Judge dismissed the suit. It is against the said judgment and decree this appeal has been filed. 8. In view of the pleadings of the parties as well as the findings of the learned trial Court, the preliminary question to be determined in this appeal is whether the probate of will is necessary in the district of Mayurbhanj to establish the right of a legatee in any Court of law and of course, whether the plaintiff has any cause of action to file the suit. 9. Mr. R.K. Mohanty, learned Senior Advocate for the respondents while arguing on the issue of necessity of probate of will in the district of Mayurbhanj referred to different provisions of the Act and more particularly drew the attention of this Court to Sections 213 and 57 of the Act. Will as defined under Section 2(h) of the Act connotes that will means the legal declaration of the intention of a testator with respect to his property which desires to be carried into effect after his death. Section 213 of the Indian Succession Act runs as follows:- "213 Right as executor or legatee when establish – (1) No right as executor or legatee can be established in any Court of justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed. (2) This section shall not apply in the case of wills made by Muhammadans and shall only apply:- (i) In the case of wills made by any Hindu, Budhist, Sikh or Jaina where such wills are of the classes specified in clauses (a) and (b) of Section 57." 10. From a plain reading of sub-section (1) of section 213, it is abundantly clear that a person claiming right over a property is prohibited from establishing his right on the basis of a will in any Court of law without a probate thereof. However, sub-section (2) restricts the applicability of sub-section (1) to classes specified in Clause (a) and (b) of Section 57 of the Act. However, sub-section (2) restricts the applicability of sub-section (1) to classes specified in Clause (a) and (b) of Section 57 of the Act. Prohibition/restriction of Section 213 of the Act is applicable only to such will covered by Clause (a) or (b) of Section 57 of the Act. Section 57 of the Indian Succession Act runs as follows:- "57. Application of certain provisions of Part to a class or wills made by Hindus, etc. The provisions of this part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply:- (a) To all wills and codicils made by any Hindu, Budhist, Sikh or Jaina on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay. (b) To all such wills and codicils made outside those territories and limits so far as relates to immovable property situate within those territories or limits. (c)………….." 11. Thus, Mr. Mohanty, learned Senior Advocate submitted that on a compendious reading of the provisions of Section 213 and Section 57 of the Act, it is manifestly clear that the restrictions prescribed under Section 213 of the Act cannot be extended to the wills executed by a Hindu etc. on or after 1st day of 1870 in a place (area), which was not under the precincts prescribed under Clause (a) of Section 57 of the Act and testamentary successions (Wills and Codicils) made outside those territories in respect of the properties within such area (territories) as per clause (b) of Section 57 of the Act. A similar question came up for consideration before this Court in the case of Amrutlal Majhi and Others vs. Japi Sahuani and Others, 1972 (2) CWR 1451, wherein, this Court in paragraph 7 held as under:- "7. From a plain reading, it is clear that sub-section (1) prohibits persons from establishing their rights in any Court without obtaining a probate, while sub-section (2) restricts the application of the above prohibition to classes specified in clauses (a) and (b) of section 57. From a plain reading, it is clear that sub-section (1) prohibits persons from establishing their rights in any Court without obtaining a probate, while sub-section (2) restricts the application of the above prohibition to classes specified in clauses (a) and (b) of section 57. In other words, if a particular will is not covered by clause (a) or (b) of section 57 the prohibition u/s. 213 (1) does not apply." The decision of this Court in Amrutlal Majhi and Others (supra) was in respect of wills executed in the district of Bolangir. The said decision was subsequently followed in the case of Kunja Bihari Sahu vs. State of Orissa and Others, 2012 (II) CLR 841 : 2012 (II) OLR 394 . Further, this Court, while dealing with a similar question in respect of the will executed in the district of Dhenkanal, has taken a similar view in the case of Sailabala Satpathy vs. Prabati Satpathy and Others, 2008 (I) OLR 729 . No doubt, the testator of the will (Ext.1) is a Hindu and the will was executed on 11.6.2000 in the district of Mayurbhanj, i.e. much after the 1st day of September, 1870. Now, taking into consideration the submission of Mr. Mohanty, learned Senior Advocate for the respondents, it is to be examined as to whether the district of Mayurbhanj was within the territories which on the 1st day of September, 1870 were subject to the Lieutenant Governor of Bengal and whether it situates within the local limits of the ordinary civil jurisdiction of High Courts of Judicature of Madras and Bombay. No doubt, the district of Mayurbhanj was never under the ordinary civil jurisdiction of High Courts of Judicature of Madras and Bombay, as the princely State of Mayurbhanj became amenable to the jurisdiction of High Court of Orissa by operation of para 6 of Administration of Mayurbhanj State Order, 1949 and the High Court for Mayurbhanj State ceased to exercise jurisdiction in the State on and from the date of commencement of the said Order, i.e. with effect from 1.1.1949. Thus, the only question remains to be adjudicated is as to whether the district of Mayurbhanj was within the territories, which on the 1st day of September, 1870, was subject to the Lieutenant Governor of Bengal. 12. The district of Mayurbhanj was one of the princely States ruled by the Kings. It is submitted by Mr. Thus, the only question remains to be adjudicated is as to whether the district of Mayurbhanj was within the territories, which on the 1st day of September, 1870, was subject to the Lieutenant Governor of Bengal. 12. The district of Mayurbhanj was one of the princely States ruled by the Kings. It is submitted by Mr. Mohanty, learned Senior Advocate that while establishing British India, the Britishers had to face the antagonism of many princely States in India. Therefore, in the early part of 19th Century, Britishers pursued policy of outright conquest or a diplomatic method of subsidiary alliance for annexation of such princely States in India to the British India. However, such move of the Britishers of forcible annexation or conquest was not smooth and proved to be counterproductive, as it led to outbreak of the historic Sepoy Mutiny in 1857. This forced the British Government to change its policy towards the Indian princely States, which were still outside the British domain. In the famous Queen's Proclamation of 1888 by Queen Victoria, the Britishers made a solemn pledge to the Indian Princes not to make any further annexation of their territories to British India. This ensured the loyalty of the Indian Princes to the British Crown till India got her independence. Adopting such policy, the Britishers tried to exercise their paramountcy over these princely States with British Crown as the ultimate suzerain, with limited estate of sovereignty and self Government. This relationship of the British with the princely States was regulated by individual treaties. In 1921, the British made an attempt to integrate such princely State into British India by creating Chamber of Princes as a consultative and Advisory Body. To give shape to such an advent, the Government of India Act, 1935 was enacted with a view to ending the aforesaid system and establishment of a Federation of India consisting of both British India and the princely States. This law, however, did not precipitate to the desired extent because of the ongoing independence struggle and World War-II. Resultantly, at the time of independence, the princely States did not become a part of independent India, There were 565 princely States existing at the time of independence and the district of Mayurbhanj was one of such princely States. Chapter-II of Orissa District Gazettees for the district of Mayurbhanj deals with history of Mayurbhanj. Resultantly, at the time of independence, the princely States did not become a part of independent India, There were 565 princely States existing at the time of independence and the district of Mayurbhanj was one of such princely States. Chapter-II of Orissa District Gazettees for the district of Mayurbhanj deals with history of Mayurbhanj. It elaborately deals with the history of Mayurbhanj under different Rules. The States of Mayurbhanj under British Rule is also elaborately discussed in the said Chapter which gives no scope of doubt that though the Rulers of Mayurbhanj were loyal to the Britishers and have co-operated them during Sepoy Mutiny of 1857, but the State had never lost its sovereignty. The Rulers of Mayurbhanj were independent having their self-government till it merged with State of Orissa by operation of 1949 Order (supra). However, as a sequel to achieving independence, many princely States acceded to independent India either voluntarily or by signing accession instruments. Independence was legalized/recognized by the British by enactment of the Indian Independence Act, 1947 enacted by the U.K. Parliament on 18.7.1947. The main aim of this Act was to grant full self government, by dividing British India into India and Pakistan with effect from 15th August, 1947. Furthermore, this legislation lawfully terminated the British suzerainty over those princely States with effect from 15.8.1947 and bestowed upon them a right to accede either to India or to Pakistan or to remain independent. For those princely States, which did not merge with independent India, the Central Government enacted Foreign Jurisdiction Act, 1947 (Act XLVII of 1947) on 24.11.1947 to provide for exercise of certain foreign jurisdiction of the Central Government over such areas. By virtue of Section 4 of the Act XLVII of 1947, the Central Government was empowered to notify the areas over which foreign jurisdiction could be exercised. Accordingly, the administration of Orissa States Orders, 1948 was published in the Orissa Gazettee on 1.1.1948 for the effective exercise of foreign jurisdiction of the Central Government over certain areas and to make certain laws applicable to such areas: Pursuant to such publication, certain districts which were fiduciary States were brought into the ambit and control of provincial Government of Orissa, but the Ex-State of Mayurbhanj was not included in Schedule-I of the said 1948 Order. Thus, in order to exercise provincial jurisdiction over the Mayurbhanj State, Administration of Mayurbhanj State Order, 1949 was notified and published in the official Gazette of Orissa on 1.1.1949. Para 4 of said 1949 Order empowered the provincial Government of Orissa to exercise powers of Executive Administration over the State of Mayurbhanj. Para 5 of the said 1949 Order made the laws specified in the first column of the Schedule applicable to such States. Entry-75 of the first column of the Schedule to the 1949 Order included the provisions of the Indian Succession Act, 1925. Para 6 of the said Order, 1949 empowered the High Court of Orissa to exercise its jurisdiction over the State of Mayurbhanj and from that date High Court of Mayurbhanj ceased to exercise its jurisdiction in Mayurbhanj State. 13. A conjoint reading of the aforesaid provisions and taking into consideration other submissions and the history of merger of Mayurbhanj State into Independent India, it is abundantly clear that the erstwhile princely State of Mayurbhanj was not within the territory of Lieutenant Governor of Bengal as on 1.9.1870, as envisaged under Section 57 (a) of the Act. Obviously, Mayurbhanj constituted a fiduciary State prior to 1949 Order. By virtue of promulgation of 1949 Order, the provisions of the Act were extended to such territory after it acceded to the hegemony of Independent India by such lawful merger. In view of the above, it can be safely concluded that a restriction imposed under Section 213 of the Act to establish the right of the legatee or executor in any Court of justice is not applicable to the district of Mayurbhanj. In other words, a will or testamentary disposition executed in the district of Mayurbhanj need not be probated to establish the right of the legatee or executor in Court of justice. Thus, finding of the learned trial Court that no right accrues in favour of the plaintiff by virtue of the will (Ext.1) in absence of its probate is not sustainable in law. 14. The learned trial Court taking into consideration the pleadings and materials placed on record has already come to a conclusion that the will was validly executed by the testator-late Rambhabati Patel in respect of her self-acquired property. The defendants also do not dispute the execution of such will by late Rambhabati Patel in favour of the plaintiff/appellant. 14. The learned trial Court taking into consideration the pleadings and materials placed on record has already come to a conclusion that the will was validly executed by the testator-late Rambhabati Patel in respect of her self-acquired property. The defendants also do not dispute the execution of such will by late Rambhabati Patel in favour of the plaintiff/appellant. Thus, the plaintiff/appellant has acquired right, title and interest over the suit property by virtue of Ext.1 after the death of the testator, namely, Rambhabati Patel. 15. The next question for consideration is whether the plaintiff has cause of action to file the suit which was negatively answered. Mr. Mohanty, learned Senior Advocate drew attention of this Court to paragraphs 5 and 7 of the plaint and submitted that the will is a plain paper will and unless right of the plaintiff is declared by virtue of the said will, no mutation proceeding could be initiated. Had the defendants cooperated with the plaintiff, he could have got the suit land mutated in his name. Due to non-cooperation of the defendants, the plaintiff was constrained to file the suit for the aforesaid relief. Referring to paragraph 6 of the written statement filed by the defendants, learned counsel for the respondents though did not seriously object the same, but supported the findings of the learned trial Court submitting that due to pre-occupation and paucity of time, they could not cooperate the plaintiff to file the mutation case. 16. Considering the facts and the circumstances of the case as stated above and the submissions made, I am of the view that the basis of claim of the plaintiff being a plain paper will, ordinarily it would not be entertained by the revenue authority for mutation of the land in his name, unless other family members, who might have interest in the property, cooperate with the legatee. Thus, the plaintiff had no other option than to file a suit for declaration of his right, title and interest on the basis of the said plain paper will (Ext.1) to get the suit land mutated in his name. Thus, the plaintiff has cause of action to file the suit. 17. Thus, the plaintiff had no other option than to file a suit for declaration of his right, title and interest on the basis of the said plain paper will (Ext.1) to get the suit land mutated in his name. Thus, the plaintiff has cause of action to file the suit. 17. In view of the above, I have no hesitation to set aside the impugned judgment and decree dated 25.1.2012 and 9.2.2012 respectively passed by the learned Civil Judge (Senior Division), Karanjia in C.S. No. 8 of 2010, which I direct. Accordingly, the appeal is allowed. C.S. No. 8 of 2010 of the Court of Civil Judge (Senior Division), Karanjia is decreed on contest against the defendants (respondents herein) declaring the right, title and interest of the plaintiff over the suit land. Parties shall bear their own cost. Appeal allowed.