Orissa High Court
Miss Rajashree Mohanty vs Mrs. Amita Mohanty & Others on 11 September, 2014
Author: R. Dash
Bench: Raghubir Dash
ORISSA HIGH COURT: CUTTACK
F.A.O. NO.160 OF 2006
From the order dated 31.3.2006 passed by the learned Civil Judge
(Senior Division), Nayagarh in I.A. No.117 of 2005 arising out of
C.S.No.203 of 2005.
__________
Miss Rajashree Mohanty ...... Appellant
Versus
Mrs. Amita Mohanty & others ...... Respondents
For Appellant : M/s. B.N. Mohanty, S.N. Sharma,
S.C. Pradhan & K.K. Samal
For Respondents : M/s. B. Baug, B.R. Das, S.S. Ghosh,
S. Rath, B. Mohapatra & P.C.P. Das
(For Respondent Nos.1 and 2)
M/s. A.K. Panda & A.K. Nath
(For Respondent No.3)
M/s. P.V. Ramdas & P.V. Balakrishna
(For Respondent No.4)
PRESENT :
THE HONOURABLE MR. JUSTICE RAGHUBIR DASH
Date of hearing : 22.08.2014 Date of judgment : 11.09.2014
R. DASH, J.This appeal is in challenge of the order dated 31.3.2006 passed by the learned Civil Judge (Senior Division), Nayagarh in I.A. No.117 of 2005 arising out of C.S. No.203 of 2005 dismissing the appellant's petition under Order 39 Rule 1 C.P.C.
2. The appellant is the plaintiff-petitioner before the learned lower court. She filed the suit for declaration that under a Will dated 2 8.4.2005 executed by late Debadutta Mohanty she is entitled to administer the plaint schedule properties in terms of the conditions embodied in the Will and for permanent injunction restraining Defendant-O.P.No.1 from dealing with the plaint schedule property in any manner.
Undisputed facts are that D.1 and 2 who are Respondent Nos.1 and 2 in this appeal are the widow and minor daughter, respectively, of deceased Debadutta Mohanty; that the disputed Will has been executed in the district of Nayagarh; that plaint Schedule 'A' property is a piece of land situate in the district of Khurda; that plaint Schedule 'B' properties relate to L.I.C. policies in which the deceased widow is named as the nominee; that plaint Schedule 'C' properties relate to Fixed Deposits in S.B.I. which stand in joint accounts in the names of the deceased and his widow; and that plaint Schedule 'D' properties are postal deposits (under Monthly Income Scheme) in the names of both the deceased and his widow.
3. The stand taken in the plaint, in nutshell, is that the plaint Schedule properties were acquired by the deceased from his own income. His widow had no contribution to the acquisition of such properties. The deceased was suffering from Anchylising Spondylitis. When his condition deteriorated gradually and he needed full time care from his wife, the latter deserted him on 20.10.2004 and left her matrimonial house taking her minor child (R.2) with her to take 3 shelter in her parents' house at Choudwar. Being disgusted the deceased executed the Will on 8.4.2005 appointing the appellant, his own sister, as the administrator of his assets completely disentitling his widow from inheriting the plaint Schedule properties with further stipulation made in the Will that in case the minor child comes and stays with the deceased's parental family she will get the entire properties, otherwise, the appellant shall spend the entire property for any social cause. So far probating of the Will is concerned, the plaintiff has taken the stand that since Nayagarh is an ex-state, no probate/letter of administration is necessary.
4. The appellant has filed a petition for temporary injunction on the ground that unless Defendant-O.P.No.1 is restrained from dealing with the plaint Schedule properties, there is every chance of multiplicity of litigation and the last will of the deceased will remain unfulfilled.
5. R.1 and 2 as Defendants-O.Ps. before the learned lower court take the stand that since plaint Schedule 'A' immovable property is situate within the local jurisdiction of Bhubaneswar, in the district of Khurda, the Will is required to be probated even though it has been executed within the district of Nayagarh and for that the suit itself is not maintainable. Further contention is that the so called Will is a forged document created to grab the deceased's property and to deprive his widow and minor child from enjoying the same. 4 Another plea taken by the respondents is that at the time of marriage of R.1 with the deceased in the year 1999 her father had gifted a sum of Rs.1,00,000/- to the deceased which the deceased had been investing from time to time in different schemes and lastly investment was made by way of deposits in the S.B.I. as well as the Post Office and the accounts related to such investments are reflected in the plaint Schedule 'C' and 'D'. Further plea taken by these respondents is that after death of the deceased the appellant and her other relations tortured the deceased's widow for which she had to leave her matrimonial home with her child to take shelter in her parents' house. So far prayer for interim injunction is concerned, it is their stand that any such interim order would cause irreparable injury to them because, having no income of her own the widow cannot make both the ends meet and the future of the minor respondent would be at peril.
6. Impugned order reflects that the parties did not adduce any evidence before the learned trial court. Learned lower court is of the opinion that there is no prima facie case inasmuch as the Will under dispute, which seems to be a created instrument susceptible to serious challenge on its validity, has not yet been probated. It also concludes that the factors such as balance of convenience and irreparable loss are not in favour of the appellant-petitioner inasmuch as the O.Ps. are the deceased's widow and minor daughter 5 having no source of income and any order of restraint in releasing Schedule 'C' to 'D' properties which they are entitled to enjoy would cause them to suffer financial crisis.
7. In this appeal the impugned order is challenged on the following grounds:
(1) Learned court below has prejudged different contentions/ issues before recording of evidence on the genuineness of the Will. (2) The Will which is executed in Nayagarh district is exempted from the restrictions contemplated under Section 213 of the Indian Succession Act and, therefore, probating the Will is not required.
(3) O.P.No.1 as a nominee does not acquire absolute right over the money payable under the Life Insurance Policies as well as different accounts in the S.B.I. and the Indian Post Office which are the self earned properties of the deceased.
8. On probating of the Will learned counsel for the appellant submits that since the Will has been executed in a place outside the areas specified in different clauses of Section 57 of the Act, it is not required to be probated and therefore, probating of the Will is not a condition precedent for the admissibility of the suit.
9. On the other hand, learned counsel for the respondents argues that the immovable property stated in the Schedule 'A' of the 6 suit being located outside the jurisdiction of the learned lower court, Section 16 of the C.P.C. is a bar against maintainability of the suit. It is further argued that in view of Clause (b) of Section 57 of the Act, the suit immovable property being not located within the territorial jurisdiction of the court at Nayagarh, probate of the Will is essential.
10. The law is very clear that in order to derive right under a Will it is not required to probate a Will, if it is executed in a place outside the areas specified in Section 57 of the Act. It is not in dispute that Nayagarh was an ex-State. It is not shown that the district of Nayagarh comes within the area specified in Section 57 of the Act. At the same time, there is no dispute that the immovable property, which is subject matter of the Will, situates in the district of Khurda and it is forcefully argued by learned counsel for the Respondents that the district of Khurda comes within the areas specified in Section 57 of the Act. Therefore, under clause (b) of Section 57 read with Section 213 of the Act, it is submitted, the Will is required to be probated. Consequently, the suit filed in the court of the Civil Judge (Senior Division), Nayagarh without a probate of the Will does not appear to be maintainable. Therefore, the learned lower court's observation on the maintainability of the suit is justified. However, the observations of the learned lower court that the Will seems to be a created one and that the Will executed by one of the joint account holders in respect of the deposits shown in Schedule 'C' 7 of the petition is not a valid one are unwarranted in a proceeding under Order 39 Rule 1 and 2 C.P.C.
11. On the maintainability of the suit on the ground of territorial jurisdiction of the learned Civil Judge, objection has been raised by the learned counsel for the respondents. According to him, the suit Schedule 'A' land being not within the territorial jurisdiction of the learned Civil Judge (Sr. Divn.), Nayagarh, Section 16 of C.P.C. is a bar against institution of the suit in that Court. In this regard he has relied on the decision reported in AIR 1995 SC 577 (Board of Trustees for the Port of Calcutta and another V. Bombay Flour Mills Pvt. Ltd and another). Learned counsel submits that learned Civil Judge cannot pass any interim injunction in a suit which could not have been instituted in a Court in Nayagarh. In this regard, it is to be stated that the suit is not for determination of a right to or interest in the immovable property reflected in Schedule 'A' of the plaint. It is a suit for declaration that the plaintiff-appellant is entitled to administer the plaint schedule properties under a Will. If probating of the Will is considered not necessary then the suit cannot be said to be not maintainable merely on the ground that the immovable property in plaint Schedule 'A' situates outside the local limits of jurisdiction of the Court of Civil Judge (Sr. Divn.), Nayagarh.
12. To make out a prima facie case the party seeking the relief of temporary injunction need not establish its title. It is enough if it 8 can show that it has a fair question to raise as to the existence of the right in its favour and can satisfy the Court that the property in dispute should be preserved in its present actual condition until the question of title is decided. The Court before granting the relief of temporary injunction has also to see that it does not disturb any one's legal right unless it is satisfied that the probabilities are against him. A mere existence of doubt as to the right of the party seeking the relief of temporary injunction is not a sufficient ground for refusing the relief (XVI 1978 (I) C.W.R. 138). Prima facie case means a case which needs serious consideration, investigation or determination. It does not mean proof at this stage of consideration of the question as to whether temporary injunction should be granted or not. It means bona fide dispute requiring determination without prejudging the case (AIR 1984 Delhi 95: M/s. Ramji Lal Mohinder Kumar V. Smt. Naresh Kumari). In Dalpat Kumar and another V. Prahlad Singh and others: AIR 1993 SC 276, it is observed that prima facie case is not to be confused with prima facie title which has to be established, on evidence at the trial. Prima facie case is a substantial question raised, bona fide, which needs investigation and a decision on merits.
In the case on hand, the suit has been filed on the strength of a Will allegedly executed by late Debadutta Mohanty which is challenged to be a forged document. Whether the Will is genuine or a forged document is to be considered on evidence 9 adduced by the parties at the time of the trial. Without there being any evidence the Court cannot record an opinion that the Will seems to be a created one. When the appellant has brought the suit on the strength of the Will and the Respondents challenge it to be a forged document, it needs investigation and a decision on merits. At this stage the appellant is not required to establish that the Will is above all suspicion. Since the appellant is named in the Will as the administrator of the deceased's assets, the appellant is able to show that she has a fair question to raise as to the existence of the right to administer the deceased's assets. Under such circumstances, the assets in question are to be preserved in its present condition until the question raised by the appellant in her suit is decided. In that view of the matter, the appellant has successfully made out a prima facie case.
13. According to the appellant, if the interim injunction as prayed for is not granted then the respondent No.1, who is named as the nominee in respect of the amounts payable under the L.I.C. Policies and who is one of the joint account holders in respect of the fixed deposits in S.B.I. as well as the deposits in the Post Office, would be able to withdraw the amounts and appropriate the same and, as the wife of the deceased, would be able to dispose of the immovable property shown in plaint Schedule 'A' before disposal of the suit as a result of which the last will of the deceased would 10 remain unfulfilled. Since the right of the parties to the suit in respect of the properties which are covered under the Will is dependant on the genuineness of the Will and the respondents, in the absence of any temporary arrangement, are in a position to dispose of the suit schedule properties, non-interference by the Court would result in irreparable injury to the appellant inasmuch as she has no other remedy available to her to get protection from the consequences of the apprehended injury. If the last will of the deceased remains unfulfilled it would cause irreparable injury to the appellant which cannot be compensated by way of damages.
14. On balance of convenience, it is argued by the learned counsel for the respondents that Respondent No.2 being the minor daughter of the deceased and Respondent No.1 being a hapless widow having no other source of income, would suffer a great deal of inconvenience if they are injuncted from receiving the interest that accrues from the deposits in the S.B.I. as well as the Post Office.
15. Learned counsel for the appellant on the other hand submits that the balance of convenience leans in favour of the appellant because, in the absence of an interim injunction and, in the long run, if the Will is found to be genuine and the assets covered under the Will are not available to be administered, then the appellant would be compelled to take legal action to recover the assets which would give rise to multiplicity of litigation. Submissions 11 made by learned counsel appears to be quite reasonable. Therefore, the Court has to weigh the rival contentions to find out as to in whose favour the balance of convenience leans. The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the extent of substantial mischief or injury which is likely to be caused to the party praying for interim injunction, if the injunction is refused, and compare it with the injury which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury the Court considers that pending the suit, the subject matter should be maintained in status-quo, an injunction would be issued (Dalpat Kumar and another V. Prahlad Singh and others; AIR 1993 SUPREME COURT 276).
In this case, if interim injunction is withheld the movable assets are likely to be appropriated by the respondents. In that event it would be almost impossible on the part of the appellant to recover the money even if she takes legal action to recover the same. Till the genuineness of the Will is decided either in the suit out of which the present appeal arises or in any probate proceeding before a competent Court, the assets covered under the Will must be kept protected. Otherwise the appellant, who has got no interest in the assets, would be compelled to suffer multiplicity of proceedings. 12
16. The respondents, on the other hand, would suffer financial crisis, if they are deprived of enjoying the interest accruing from the deposit in S.B.I. as well as Postal deposit under monthly income scheme. The deceased's widow is not shown to have got any other source of income. The deceased's minor daughter is under the care and custody of the widow. It is not disputed that the minor is now reading in the Central School, Charbatia, Cuttack in Class-VII. According to the pleadings in the plaint, the child would get the entire properties, if she comes and stays in the deceased's parental family. Admittedly, the child was with her mother at the time of the death of the deceased. None of the deceased's parental family has taken any interest to get back custody of the minor. The minor cannot take independent decision on her own to either stay with her mother or to join with the deceased's parental family in order to enable herself to get the entire assets covered under the Will. The appellant seems to be not interested to bring back the minor but she is interested to get the deceased's assets to administer the same in terms of the Will. Under such circumstances, the interest of the minor has to be protected at least till she attains her majority. In the facts and circumstances of the case, grant of an interim injunction is considered necessary. At the same time, interest of the hapless widow and the minor daughter of the deceased has to be protected till the rival contentions of the parties with regard to the Will in question are 13 finally settled. Learned counsel for the respondents has put forth a sound proposal submitting that all the assets covered under the Will may be kept protected till settlement of the dispute over the Will but the interest accruing to the deposits be permitted to be released in favour of the respondent.
17. In the result, the appeal is allowed. Impugned order is set-aside. Respondents are restrained from dealing with the plaint schedule properties except the accrued interest on the amounts in deposit which respondent No.1 shall be permitted to withdraw and spend the same for the maintenance of herself and her daughter. It is submitted at the Bar that the postal deposits have matured and need to be reinvested to earn interest. It is further submitted that the postal deposits under Monthly Income Scheme, after those become matured, do not get reinvested automatically. On the other hand, it is submitted, term deposits in a Nationalize Bank, after expiry of the term, get reinvested automatically. In this case, interest did not accrue to the postal deposits after those were matured in the year 2010. Therefore, it is considered to be beneficial to close the postal deposits and reinvest the matured amounts in the State Bank of India in a term deposit. Similarly, the amount payable to the nominee under the L.I.C. Policies should also be kept in deposit in the Bank. Since R-1 is a widow, all the deposits should be made in one Bank, 14 i.e., in S.B.I. branch at Nayagarh in one account in the names of the respondents on condition that they shall not withdraw the principal without leave of this Court but the interest accruing thereto shall be paid to R-1 on monthly basis. Learned Civil Judge (Senior Division) shall make all necessary correspondence with the concerned branch of the Bank/L.I.C./Post Office in this regard to see that the arrangement made hereinabove get materialized within a period of two months from the date the Court receives a copy of this order. The monthly interest payable to R-1 shall be transmitted to any Bank account in the name of R-1 so that she will not be required to come to Nayagarh for withdrawal of the interest.
Before parting with, this Court considers it to be appropriate to make the observation that the very maintainability of the suit in the Court of Civil Judge (Sr. Divn.), Nayagarh being very much doubtful, learned Civil Judge shall at the threshold pass order, after giving opportunities to the parties of being heard, on the maintainability of the suit. If the suit is found to be not maintainable then the interim arrangement made herein above shall continue to remain in force till the probate proceeding, if any, arising out of the Will in question is finally disposed of. However, if no such probate proceeding is initiated within a reasonable time then on the prayer of the Respondents, this Court shall pass such further order varying or 15 vacating the interim arrangement keeping the interest of the minor in active consideration.
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R. Dash, J.
Orissa High Court, Cuttack The 11th September, 2014/A.K.Kar, Secretary/ L. Murmu, Jr.Steno