Orissa High Court
Ranjan Kumar Sahu vs Sub-Collector on 29 June, 2022
A.F.R
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.6512 of 2022
Ranjan Kumar Sahu .... Petitioners
Mr. S.Ku. Patra,
Advocate
-versus-
Sub-Collector, Athamallik, Angul & .... Opposite Parties
Anr.
Mr. U.K. Sahoo,
Advocate
CORAM:
JUSTICE BISWANATH RATH
ORDER
29.06.2022
Order No.
04. 1. On consent of both the parties this matter is taken up for
final disposal.
2. This writ petition involves the following prayer:-
"It prayed therefore that this Hon'ble Court may
graciously be pleased to pass an order issue Rule
NISI calling upon Opp. Parties to show cause and if
they fail to show cause or show insufficient cause
then issue appropriate writ, order, direction to quash
the order dt.27.10.21 (Annexure-3) and 6.11.21
(Annexure-4) and direction may given to the
Op.Parties to mutated the above schedule land in
favour of the petitioner.
And pass any other order which will deem fit and
proper in the ends of justice."
3. Challenge in the writ petition is made to the orders at
Annexures-3 & 4 herein.
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4. Challenging the order of the original authority vide
Annexure-3 involving the Mutation Case No.616 of 2021 and further
also the order of dismissal of the appeal at the instance of the
Petitioner vide Annexure-4, Mr. Patra, learned counsel for the
Petitioner taking this Court to the pleadings in the writ petition as
well as the case of the Petitioner before the Forums below contended
that for the property involved belongs to Athamallik in the Angul
district, there is no need of probate in the involvement of deed
involving such property. Taking this Court to a reported judgment of
this Court in the case of Aparna Sahu and Others Versus
Raghunath Biswal and Others as reported in 2009 (II) CLR 155
and a further judgment of this Court in W.P.(C) No.10400 of 2021
decided on 22.04.2021 both if there is requirement of probate
involving Angul district, learned counsel for the Petitioner claims
that the original authority as well as the appellate authority have
failed in appreciating the position of law in this situation through
both the above judgments and accordingly learned counsel for the
Petitioner claimed that in this situation both the orders require to be
interfered with and set aside.
5. In his opposition learned State Counsel, however, taking this
Court to the ground of rejection in the orders at Annexures-3 & 4
attempted to substantiate the case of the public authority. There is no
denial to the settled position of law dealing with Wills in the District
of Angul through both the aforesaid judgments requiring no probate.
6. Considering the rival contentions of the parties and on
perusal of the judgment in 2009(II)CLR 155 more particularly the
direction in paragraph no.15 therein, this Court finds, the Single
Bench of this Court taking up similar issue particularly involving the
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property under Athamallik Sub-Division in the District of Angul has
come to observe as follows:
"15. Only on other ground which needs to be dealt
with is with regard to the submission of Mr. Mukherjee
that P.W.3 did not identify the testator before the Sub-
Registrar. This submission also appears to be factually
not correct. P.W.3 in his examination-in-chief has
stated :
"Ext. 1 is the said will. This is my signature in the
front page of the will marked Ext. 1/f. This is
signature on the last page of the will marked Ext.
1/g. Then the deed of will was presented. Sub-
Registration Officer. I was present before the
Registration Officer at the time of registration. I
also give my signature."
Mr. Mukherjee, relied upon the following statement
made by the said witness in cross-examination, in
support of his argument that P.W.3 had not identified
the will.
"Before the Registration Officer, I did not identify
Jahar Biswal to the Registration Officer. X x x"
The words "to the Registration Officer" are very
significant. The deed itself reveals that P.W.3 has
signed as identifier. He also admitted about such fact.
He was present in the Sub-Registration Officer in
course of registration. The question of identifying Jahar
personally to the Sub-Registrar does not arise. A
cumulative reading of the entire evidence clearly
establishes the fact that not only there was valid
attestation but also there was no defect in the
registrarion of the will executed by Jahar in favour of
the plaintiff. That apart, all these are questions of fact,
which have been dealt with by the Courts below in
extensor."
7. This issue has again visited this Court in W.P.(C) No.10400
of 2021 and this Court while disposing of the above writ petition on
22.04.2021, has directed in paragraph no.11 therein as follows:-
"11. Law is well-settled that probate of the Will is
not necessary in the undivided district of Dhenkanal.
Thus, the restriction imposed at para-6 of the aforesaid
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circular with regard to probate the Will may not be
applicable to the case at hand save and except other
conditions of the circular dated 07.05.2018, in respect
of which this Court does not express any opinion."
8. This Court in deciding the W.P.(C) No.10400 of 2021, even
has taken some other decisions as indicated in paragraph no.7. In the
above scenario and for the position of law on the issue of no need for
registration and/or probate of Will involving property in the district
of Angul, this Court finds, the position of law has been settled
through the above judgment deciding no need of probate of such
document particularly in respect of Angul District a District carved
out of Dhenkanal District, which is already exempted from getting
into such registration and/or probate of Will. For the settled position
of law and since the orders at Annexures-3 & 4 have been passed in
no consideration of settled position of law, this Court while setting
aside both the orders at Annexures-3 & 4, remits the matter to the
Tahasildar, Kishorenagar to dispose of the mutation case allowing in
favour of the Petitioner keeping in view the settled position of law
and giving direction for necessary correction in the Record of
Rights.
9. The entire exercise shall be completed within a period of six
weeks from the date of communication of an authenticated copy of
this order by the Petitioner.
10. The Petitioner is directed to appear before the Tahasildar,
Kishorenagar along with a certified copy of this order on
11.07.2022.
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11. The writ petition stands disposed of with the above direction.
(Biswanath Rath)
Judge
Ayaskanta Jena
