Orissa High Court
Sakuntala Dasi vs Kusum Kumari Sarkar on 18 February, 1970
Equivalent citations: AIR 1971 ORISSA 103
ORDER R.N. Misra, J.
1. These two applications have been filed by one Sakuntala Dasi who was the applicant and the opposite party respectively in two probate proceedings registered as O.S. No. 16 of 1965 and O.S. No. 25 of 1966 in the Court of the District Judge, Cuttack.
2. One Adhar Chandra Sarkar owned some properties located in the town of Cuttack and at Sundergarh. He died on 5-6-62. Kusum Kumari Dasi who features as the opposite party in these revisions was admittedly the wife of Adhar. Sakuntala, the petitioner, claims to be the second wife. Her status as wife, however, is not admitted by Kusum Kumari.
It is alleged that Adhar left two Wills --one executed on 5-4-62 which is a registered document and the other dated 23-5-62 which is unregistered. Sakuntala, the petitioner, applied for probate of the registered Will. Her application has been registered as O.S. No. 16 of 1965. Kusum Kumari similarly applied for probate of the unregistered will and her application has been registered as O.S. No. 25 of 1966. O.S. No. 16 of 1965 was filed on 4-11-64 while O.S. 25 of 1966 on 9-8-65. The two Wills have already been exhibited in the proceedings. The registered Will is marked as Ext. 2 and the unregistered Will as Ext. C.
3. The material difference between the two Wills, both of which seem to have been executed within a period of two months before the death of the testator and with a gap of about seven weeks between the two documents, may be stated thus: Ext. 2 provides that all the immovable and movable properties at Cuttack as also the property at Sundergarh acquired by Adhar in the name of the minor son through Sakuntala would go to Sakuntala and her son, and the rest of the immovable properties as also movables at Sundargarh would go to Kusum Kumari. Ext. C, however, makes provision that the residential house at Jagannath Ballav in the town of Cuttack along with movables as also the homestead described in Ka schedule would go to Sakuntala and her son. Provision was also made that they would be given a maintenance of Rs. 15/- for both out of the income of other properties of the testator. All the remaining properties of the testator are to go to Kusum Kumari. There seems to have been some difference in the manner of reference to Sakuntala in the two documents. In one it is stated that she was in the keeping of Adhar while in the other there is a clear narration that they were living together as husband and wife.
4. It appears that Sakuntala had made an earlier application in 1962. In due course she was called upon to pay the duty which amounted to a substantial sum. As she could not pay it that application was dismissed for default. In the meantime, on 27-10-64, Sakuntala alienated lot No. 1 of Ka schedule property of O.S. No. 16 of 1965 in favour of one Srimati Shanti Devi Agarwala for a consideration of Rs. 20,000/-.
5. The litigation continued for about three years and the two cases were clubbed together for disposal by an order of the learned District Judge on 4-7-66, and 8 witnesses for one side and 11 for the other were examined. Substantial time was lost over the examination of the hand-writing expert, but ultimately his evidence was ignored by the court.
6. While the litigation was at such stage, on 10-9-68, the present petitioner made two applications to the learned District Judge. Her application in O.S. No. 16 of 1965 was to the effect that she may be permitted unconditionally to withdraw her application and in the other case her application was to withdraw her contest. The alienee from the petitioner also applied to enter caveat.
7. By order dated 15-1-69 the learned District Judge rejected the two applications in the two suits, but did not dispose of the application made by the alienee as according to him that application would be properly disposed of only after the final hearing of the two cases. The petitioner has questioned the legality of the order of the learned District Judge in reiecting her two applications in the two suits. These two Civil Revisions are, therefore, directed against the order dated 15-1-69 whereby these two applications were rejected.
8. Before I enter into the merits of the applications, I think it convenient to deal with the application filed by Mr. L. K. Dasgupta for the alienee. By independent applications made in this Court the alienee wanted to be added as a party. Her applications were contested by Mr. B. Mohapatra and Mr. D. Mohanty appearing for the petitioner and the opposite party respectively. Both of them wanted that the alienee should not be added in the Civil Revision as a party. Mr. Dasgupta raised various contentions showing how the alienee is a person having an interest in the matter and, therefore, should be added as a party to the cases.
But the opposition was mainly on the point that her application to enter caveat was still pending disposal before the learned District Judge. She had not moved this Court against the order of the learned District Judge in deferring decision on her application. Since the learned District Judge has deferred the matter and has not yet decided it finally, the learned counsel for both the sides in the revisions contended that I should not go into the matter and decide the question on merit and conclude as to whether she should or should not be impleaded in the two cases pending before the learned District Judge by being permitted to enter caveat. The learned District Judge has clearly stated in the impugned order.
"Therefore, it is first necessary to find out if Srimati Sakuntala Dasi is or is not an executor appointed under the will; and only then it will be possible to decide if the applicant Srimati Santi Devi Agarwalla can claim any interest in the estate of the deceased to be impleaded as a party. The question of locus standi of the applicant will, therefore, be taken up at the final hearing of the two cases."
I think, I should not, in the fairness to all parties, enter into this aspect of the matter and decide the question which the learned District Judge has deferred decision of. I. therefore, permitted Mr. Dasgupta to make his submissions on the merit of the matter in these cases amicus curiae and did not permit him to argue as a party to the proceedings. The fact that Mr. Dasgupta for the alienee has been heard in these revisions may not be taken as having any bearing on the merit or otherwise of the pending application before the learned District Judge to allow the alienee to be impleaded in the proceedings in his court.
9. Now I will examine the legality of the order of the learned District Judge in refusing to permit the petitioner from withdrawing her application in one case and withdrawing her contest in the other. As has already been indicated, Adhar admittedly left behind a son who appear to be one of the legatees under either of the Wills. It is not disputed that the said minor son Ananta Kesari Sarkar is the son of Adhar, but there is dispute about the status of the petitioner through whom Adhar begot that son. The ultimate status of the minor is also disputed.
10. The learned District Judge has taken the view that the provisions of the Code of Civil Procedure have no application to a probate proceeding. His reasonings in his own words are thus:--
"In the instant case two rival wills have been set up under O.S. No. 16 of 1965 and O.S. No. 25 of 1966. It is, therefore, all the more necessary that this Court must decide as to which one of the two wills is genuine, or whether both are not genuine or whether both are genuine and whether they have been properly executed and attested as required under law. Further in both the cases, apart from Srimati Sakuntala Dasi herself, the interest of her minor son Sri Ananta Kishore Sircar has to be protected. There is no doubt that if Srimati Sakuntala Dasi is allowed to withdraw from the two cases, the interests of her minor son are bound to be jeopardised. Moreover in both the cases the evidence has already been closed on both sides and the cases are hanging on merely because the expert opinion has not yet been finalised. After carefully considering the facts and circumstances and taking into account the legal position regarding the withdrawal of a probate application, the interest of the minor and the fact that the application is made at such a late stage, I am of the opinion that Srimati Sakuntala Dasi shall not be allowed to withdraw from the two cases."
11. Mr. Mohapatra for the petitioner contends that the reasonings advanced by the learned District Judge are contrary to law and cannot hold the field. Chapter IV of the Indian Succession Act makes provision regarding the practice in granting and revoking probates and letters of Administration. Sections 266 and 268 of the Indian Succession Act as contained in that Chapter appear to have relevancy in this case and those two sections may be extracted:--
"266. The District Judge shall have the like powers and authority in relation to the granting of probate and letters of administration, and all matters, connected therewith, as are by law vested in him in relation to any civil suit or proceeding pending in his Court.
268. The proceedings of the Court of the District Judge in relation to the granting of probate and letters of administration shall, save as hereinafter otherwise provided, be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908."
Mr. Mohapatra contends that it follows that the proceedings with reference to the granting of probate or letters of Administration are to be ordinarily regulated by the Code of Civil Procedure except where there is a contrary provision in the Succession Act or where the circumstances of the case do not permit the application of the Code.
12. According to Mr. Mohapatra the two decisions that have been referred to in the impugned order really do not throw much light on the point in issue. The first case in AIR 1917 Pat 41 (2), (Jugeshwar Nath v. Jagtdhuri Prasad). Chapman J. with whom Atkinson J. agreed stated:--
"It is well settled by authority that an application for probate cannot legally be disposed of by a compromise. The law imposes on the Court itself the duty of determining whether the will is genuine or not. It is quite clear therefore that the Court acted improperly in permitting the executors to withdraw the application for probate merely by reason of the compromise which was filed. So far as the question of the application of Order 23, Rule 1, Civil Procedure Code is concerned, that question has to be determined by reference to Section 55 of the Probate and Administration Act, 1881. That section says that the proceeding of the Court in relation to the granting of probate shall be regulated, so far as the circumstances of the case will admit, by the Code of Civil Procedure. Now the circumstances of a probate case do not properly admit of the withdrawal of an application for probate by an executor. Order 23, Rule 1, Civil Procedure Code, which says that a plaintiff may withdraw his suit or abandon a part of his claim therefore does not, in my opinion, apply to an application for probate. It is the duty of an applicant for probate to obtain the opinion of the Court, upon the genuineness or otherwise of the will. He fails in his duty if he does not obtain the finding of the court on the will; that being so, it is clear that the further provision in Order 23, Rule 1, to the effect that if a plaintiff withdraws from a suit, he shall be precluded from instituting any fresh suit in respect of the same subject-matter, also does not apply."
The facts of this case are these: An application for probate was made by two of the executors under the will on 2-2-1914. On 13-7-1914, a petition of compromise was filed under which the widow on behalf of herself and her son agreed to divide the properties with the three sons of the first wife of the testator. On the same day the two executors who had applied for probate withdrew their application. On 11-2-1915, a fresh application for probate of the will was made. In this application one of the executors who had applied before joined; the other applicant was another executor. An objection was taken on behalf of the sons of the first wife that the previous application for probate having been withdrawn the present application was not maintainable. While deciding the point as to whether a second application was maintainable the aforesaid observation had been made by the Court.
Mr. Mohapatra contends that the point that was before the court for decision was different from what is now required to be decided. He does not quarrel with the proposition that the ultimate burden is on the court to find out whether probate will be granted of the will or not, and for that purpose a duty is cast on the court to find out whether there has been due execution by the testator and proper attestation of the will in question. Therefore, until on merit that has been done an application can be made for withdrawal and there would be no res judicata for the purpose merely because an earlier application had not been pressed or had been dismissed for default. Until probate is granted or refused on merit there would be a cause of action available for asking for probate and an application cannot be thrown out merely because an earlier application had not been pressed.
13. The second decision to which reference has been made in the impugned order is reported in AIR 1955 Pat 126 (Babulal Mandal v. Abala Bala). The point that was required to be decided in the said case was as to whether an application for letters of Administration which had already succeeded could be permitted to be withdrawn while the matter was pending in appeal before the High Court at the instance of the aggrieved party. Then Court did not ultimately decide the point, but rest content by observing, "The position today is that the will is not probated and the High Court allowed defendant No. 1 to withdraw his application for letters of administration which was the foundation of the decree for letters of administration. When the application was withdrawn, it naturally followed that the decree, which was founded upon that application, was also gone."
The other aspects which arose in the second Patna case referred to above may not have any bearing on the present proceeding.
14. There is no doubt that the present petitioner who had applied in the court below for probate must be equated with that of a plaintiff in a regular suit. While it is true that in such cases where the applicant is an executor or executrix, a duty is cast on such person to have the will probated, there is no method prescribed under the law to compel such person to take steps for probating the will. The question is once she has made the application, has the position so changed that a compulsion can be attached to make her continue the proceeding? According to the learned District Judge once the proceeding has commenced, on the principle that a duty is cast on the court to determine about the due execution and attestation of the will the proceeding cannot stop and must be continued and the person who has initiated the proceeding cannot withdraw.
I hardly find any support for such a proposition. If whether to apply for probate or not was within the option of the petitioner, whether to continue or not the application would be equally within her option. On the principle that the plaintiff is dominus litis in a litigation the matter must be left to his charge, otherwise the court would be assuming a burden which it would in many cases find difficult to discharge. Let us consider for instance a case where an application for probate is made. For reasons best known to the petitioner he does not continue the case. Normally such a case would go by default. But on the principle that the court has the burden to determine the genuineness of the will if the court is required to proceed and the petitioner no more appears and nobody appears to oppose the proceeding by entering caveat, in what helpless position the court would be left?
Let us also visualise another case where the petitioner no more appears though once he had applied for the probate but certain persons enter caveat and oppose the probate. There may be also a case where the petitioner continues the proceeding ex parte. If without the assistance of any party the court is called upon to continue the determination by itself it would be an arduous job and on many occasions the conclusion is likely to be contrary to what may have appeared to be the truth if the case had been properly contested.
15. What seems to have been prohibited is that there should be no compromise on the question of the genuineness of a will. What the court is called upon now to determine is not as to whether the testator had properly executed the document and whether there is due compliance with other formalities of the law in respect of the document. Over those aspects of the matter compromise is not permitted and a determination is warranted. But in regard to the procedure, in my view, the provisions contained in the Code of Civil Procedure have to be applied. The forum where those proceedings are to be taken is admittedly a civil court. The subject-matter is admittedly a civil dispute. A detailed procedure is obviously not prescribed in the Succession Act itself, and as I have already extracted above there is clear provision that the Civil Procedure Code would be applicable and the court in seisin of a matter relating to the will will have all the powers of a court under the Code of Civil Procedure.
Once these provisions have been made the intention seems to be obvious that unless there is anything contrary in the Act itself which expressly or impliedly makes it clear that the provisions of the Code of Civil Procedure should not be applied, that procedure must be applied for disposal of these proceedings.
16. If this is the test to be applied I do not think it is open to a court to require the petitioner to continue the case. Being the petitioner her option for the purpose of continuing the proceeding or not to continue It must be taken to be final, and the court cannot control the exercise of that option unless there be any special feature in a particular case. When the petitioner does not want to proceed with the case where she has applied for probate nor does she want to contest the application made by the opposite party for probate of the other will it does not lie within the court's power to refuse that prayer of the petitioner and compel her to proceed with the case.
In the second Patna case their Lordships of the Patna High Court did not determine the point as it must have obviously presented difficulties. Leave having been granted to withdraw the original application which had already been determined, they held that the proceeding was gone and with it the determination had also gone. In the present case there is no determination yet and as such there can be no reason not to permit the petitioner to withdraw from the arena of contest by not propounding the will Ext. 2. Similarly when the petitioner does not want to press her objection against Ext. C being probated the court cannot force her to continue her objection. She must be imputed with the knowledge of the consequences and if in her choice she does not want to press her application or her contest the same must be accepted by the court, and on the principle that the court has the burden of determining the genuineness of the will she cannot be compelled to continue her application or resistance against the other application. On my aforesaid conclusion I would hold that the two applications made by the petitioner before the learned District Judge should have been allowed and the learned District Judge went wrong in rejecting those applications and directing the petitioner to continue her application as also resist the other application by pressing her objection.
17. Mr. Dasgupta contended that this was a collusive move and, therefore, the same should not be permitted. It has already been indicated that the present petitioner is the alienor and Mr. Dasgupta's client is the alienee, and, therefore, in the interest of the alienee that the present order of the learned District Judge should work out. The prejudice to the alienee can also not be the consideration for not granting the applications of the petitioner. She may have other liabilities arising out of her present action. But once she does not want to continue the litigation she cannot be compelled against her choice to do so.
18. I would, therefore, conclude that the impugned order of the learned District Judge dated 15-1-69 so far as it did not permit the petitioner to withdraw her application in O.S. No. 16 of 1965 and her resistance in O.S. No. 25 of 1966 must be vacated and those two applications are bound to be accepted. The learned District Judge would now proceed with the cases on the basis that these two applications are allowed. The Civil Revisions are allowed. I do not propose to make any order as to costs. The records will be transmitted immediately.
19. There are two connected Civil Revisions before this Court which are Civil Revision Nos. 155 and 160 of 1969 arising out of another order in those two cases. They are, however, being separately disposed of today.