Geetigunjan Sarangi vs Nagendranath Sarangi And Others
2023 Latest Caselaw 8541 Ori

                                IN THE HIGH COURT OF ORISSA AT CUTTACK

                                            FAO No.130 of 2008 & FAO No. 219 of 2008
                           (From the judgment dated 16th February 2008 passed by the learned
                           Civil Judge (Senior Division), Second Court, Cuttack in O.S.No.1 of
                           2005)
                                                          ----------

                           FAO No.130 of 2008
                           Geetigunjan Sarangi                                          .......      Appellant

                                                                               Versus

                           Nagendranath Sarangi and others                              ......     Respondents
                           Advocate(s) appeared in this case :-
                                     For Appellant                     :         Mr.S.K.Mishra, Sr.Advocate
                                     For Respondents                   :         Mr.A.C.Mohapatra, Advocate
                                                                                 (for Respondent No.2)
                                                                                 Mr.K.Mishra, Advocate
                                                                                 (for Intervenor)

                                                                               AND

                            FAO No.219 of 2008
                            Bibhuti Bhusan Sarangi                                      .......       Appellant

                                                                                 Versus

                            Geetigunjan Sarangi and others                              ......      Respondents
                            Advocate(s) appeared in this case :-
                                       For Appellant                       :      Mr.A.C.Mohapatra, Advocate
                                       For Respondents                     :      Mr.S.K.Mishra, Sr.Advocate
                                                                                  (for Respondent No.1)
Signature Not Verified
Digitally Signed
                                                                                  Mr.K.Mishra, Advocate
Signed by: CHITTA RANJAN BISWAL
Designation: Secretary
                                                                                  (for Intervenor)
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 16-Aug-2023 17:30:47
                                FAO No.130 of 2008 & FAO No. 219 of 2008                           Page 1 of 10
                                                  CORAM : JUSTICE B.P. ROUTRAY

                                                                JUDGMENT

4th August, 2023 B.P. Routray,J.

1. Both the appeals being arise out of the same judgment of the

learned Civil Judge (Senior Division), Second Court, Cuttack passed in

O.S.No.1 of 2005 are heard together and disposed of in this common

judgment.

2. Heard Mr.S.K.Mishra, learned counsel for the Plaintiff and

Mr.A.C.Mohapatra, learned counsel for Defendant No.2 as well as

Mr.K.Mishra, learned counsel for Invtervenor applicant.

3. Since two Intervention Applications have been filed in I.A.

No.228 of 2023 and I.A.No.210 of 2023 in both the appeals

respectively, the same are dealt with at the outset. These two

Intervention Applications have been filed before this Court on 15th

March 2023 and 10th March 2023 respectively by the applicant, namely

Prahallad Sahoo.

4. It is the contention of the Intervenor applicant that he was a

friend of the testator, namely Hema Chandra Sarangi and had served in Signature Not Verified the same Government Office where the Testator worked. His further Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication contention is that, the Testator executed a Will dated 30th December Location: Orissa High Court, Cuttack Date: 16-Aug-2023 17:30:47

2000 in his favour in respect of such properties covered under Khata

No.840 and 833, which are also the properties covered in O.S No. 1 of

2005. But the Intervenor applicant could not register said Will due to

ignorance and the same after being traced out on 25th January 2023 was

registered before the Sub-Registrar, Mahanga on 2nd March 2023. As

such, the Intervenor prays to array him as a party in the appeal and

decide the matter in his favour accordingly.

5. Upon hearing all the parties on the Intervention

Application, it is found that the present intervener (Prahallad Sahoo) did

neither appear before the probate Court (The District Judge) nor did

make any attempt to take step to file probate proceeding before

appropriate court at any point of time. The testator-Hema Chandra

Sarangi admittedly died on 29th April 2001 and till filing of the present

Intervention Application, nothing has been stated about any such step

taken by the Intervenor in respect of the alleged Will or the properties

covered therein. Even the copies of the Intervention Applications have

not been served on either party to the proceeding. No excuse or

explanation has been offered by the Intervenor Applicant to explain the

failure on his part to contest in the probate proceeding before learned Signature Not Verified Digitally Signed District Judge and all of a sudden he woke up in 2023, though the paper Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication publication of issuance of notice was made in October 2019 by this Location: Orissa High Court, Cuttack Date: 16-Aug-2023 17:30:47

Court. It is strange to see that the alleged Will executed in favour of

Prahallad Sahoo (the Intervenor) under Annexure-4, is though dated 30th

December 2000, but stated to have been registered on 2nd March 2023. It

is important to mention that the alleged Propounder - Prahallad Sahoo is

also seen to have signed in the Will, which is quite unusual in such

matters. However, this Court refrains from giving any opinion on the

genuineness of the alleged Will dated 30th December 2000 executed in

favour of Prahallad Sahoo. But it is made clear that this Court, by

dealing with the prayer of the Intervenor to be arrayed as a party in the

present appeals, is of the opinion that his prayer to intervene in the

appeals at this belated stage and under suspicious circumstance is not

found entertainable. As such, the prayer for intervention is rejected.

6. Next coming to the merits of the challenge in both the

appeals, it needs to mention here the family relationship between the

parties. Udaynath, Nagendranath (Defendant No.1) and Hema Chandra

(Testator) are three sons of Banchhanidhi. Hema Chandra, the testator,

was a bachelor. Udaynath had two sons, namely Bibhutibhusan

(Defendant No.2) and Sashibhusan and one daughter namely Kalpalata

(Defendant No.4). Sashibhushan was predeceased leaving behind his Signature Not Verified Digitally Signed widow Manorama (Defendant No.3) and son Geetigunjan (Plaintiff). Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 16-Aug-2023 17:30:47

7. As per the Plaintiff, Hema Chandra executed two Wills

dated 24th November 2000 and 18th April 2001 in favour of the Plaintiff

under Ext. 22 and 23 respectively. Ext. 22 is a registered Will in respect

of self-acquired properties of Hema Chandra and Ext. 23 is an un-

registered Will in respect of the properties fall to the share of Hema

Chandra out of the joint family properties having common ancestor

Banchhanidhi. The probate proceeding was in respect of both the

registered and unregistered Wills.

8. The learned Probate Court upon adjudication held the

registered Will under Ext. 22 as genuine and directed for probate of the

same, whereas the unregistered Will under Ext. 23 was disbelieved and

the prayer of the Plaintiff was rejected in that respect consequently.

9. FAO No.130 of 2008 has been filed by the Plaintiff

challenging the rejection of his prayer by the Probate Court in respect of

unregistered Will under Ext.23. FAO No.219 of 2008 has been filed by

Defendant No.2 in respect of grant of probate under the registered Will

under Ext. 22.

10. Mr. S.K Mishra, learned Senior Counsel submits for the

Signature Not Verified Plaintiff that rejection of the prayer for probate in respect of the Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication unregistered Will while granting the probate in respect of Ext. 22 Location: Orissa High Court, Cuttack Date: 16-Aug-2023 17:30:47

holding the same as genuine is contrary to own finding of the learned

District Judge and further, the grounds stated to disbelieve execution of

unregistered Will are erroneous and without valid reasons. He further

submits that when both the Wills are holographic, no reason is there to

disbelieve the authenticity and genuineness of Ext.23 for the mere

reason of unregistering the same.

11. Mr. A.C. Mohapatra, learned counsel, on the other hand

submits for Defendant No.2 that the execution of both the Wills under

Exts.22 and 23 are doubtful and the learned District Judge though had

disbelieved Ext.23 rightly, but failed to appreciate the evidences in

respect of Ext.22. He further submits that, when the Will was executed

at Salepur, the registration of the same at Cuttack is something unusual

and secondly, P.W.2, one of the attesting witnesses, is an interested

witness for the Plaintiff and therefore his evidence should not have been

believed.

12. It is seen from record that two witnesses Viz. P.W.1 and 2

were examined by the Plaintiff. P.W.1 is the Plaintiff himself and

P.W.2, namely, Jayanta Kumar Nanda is one of the attesting witnesses

to the Will, who is also the maternal uncle of the Plaintiff. D.W.1 is Signature Not Verified Digitally Signed Defendant No.2 himself, D.W.2 is an independent witness and a co- Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 16-Aug-2023 17:30:47

villager examined on behalf of Defendant No.2. D.W.3 is Defendant

No.3 and the mother of the Plaintiff. D.W.4 is an independent witness

examined on behalf of Defendant No.1. Defendant No.4 did not come to

contest the case and remained ex-parte.

13. Admittedly, all the parties are the members of one family

having their common ancestor Banchhanidhi. The Testator is the brother

of the father-in-law of Manorama and, as such having a grandfatherly

relationship with the Propounder (plaintiff). As per the evidences

brought through P.W.1, P.W.2, D.W.3 and other witnesses also, the

Testator was residing in the same cluster of house in the village where

other parties were also residing. It is brought through evidence that the

relationship between the Testator with Nagendranath was not good and a

partition suit in T.S No.58 of 1996 was filed by Hema Chandra in the

Court of Civil Judge (Sr.Division), Second Court, Cuttack, which was

finally abated upon death of Hema Chandra.

The most important thing to be examined in a probate

proceeding is that, whether the Will in question has been executed in a

sound state of mind and is free from all suspicious circumstances. In the

instant case, the family relationship between the Testator and the Signature Not Verified Digitally Signed Propounder is admitted. The filial affection of the Testator towards the Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Propounder has been brought through evidence in the mouth of all such Location: Orissa High Court, Cuttack Date: 16-Aug-2023 17:30:47

witnesses Viz. P.W.1, 2 and D.W.3 and others as well. It is also seen

from evidence that Hema Chandra was leading a lonely life after his

retirement and residing in the ancestral house at the village where the

Testator and his mother were also residing. The relationship with

Bibhutibhusan (Defendant No.2), the brother of deceased father of the

Testator, was not good with the Testator and it is quite visible from the

statements of the witnesses that Manorama and his son were taking care

of the testator, who was leading a lonely life after his retirement.

Therefore, it is obvious on the part of the Testator to gain some

sympathy towards Manorama and his son (Plaintiff), which might have

laid the ground for executing special benefit to him. The Wills under

Ext. 22 and 23 are admittedly in the handwriting of the Testator. The

filing of a partition suit and one F.I.R. in P.S Case No. 296/97 justify the

circumstances to suggest that he did not have a good term with

Defendant No.1 and 2. Only for the reason that P.W.2 is the maternal

uncle of the Testator he cannot be termed as an interested witness when

the evidences are clear to the effect that the Plaintiff and his mother are

well acquainted with the day-to-day life of the Testator and his

handwriting also. Law does not require examination of both attesting

Signature Not Verified witness and for the purpose of the same, the evidence of one witness is Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary sufficient provided the same is reliable and trustworthy. Having gone Reason: Authentication Location: Orissa High Court, Cuttack Date: 16-Aug-2023 17:30:47

through the evidences of P.W.2 and the corroborating factors coupled

with his statements made in the cross-examination, the same do not

bring out any such circumstance to doubt his veracity or interestedness

in the Will in favour of the Plaintiff. The other ground urged by

Defendant No.2 that the registration of the Will at Cuttack instead of

Salepur is a suspicious circumstance, has no merit at all. The Testator

was a Government servant and he served as a Head Clerk in the

veterinary office. The Testator is a matriculate knowing Odia and

English well. Therefore, the visit of the Testator to Cuttack, which is at a

short distance from his place of residence, is very usual and in absence

of any material to doubt the conduct on that score, no reason is left to

suspect execution of the Will. Therefore, the finding of the Probate

Court regarding genuineness of the registered Will under Ext. 22 is seen

without any infirmity and is confirmed by this Court.

14. So far as the unregistered Will is concerned, it is not

understood in the circumstances as to why the same was left

unregistered though the other one was registered shortly before that.

Ext.22 was registered on 24th November 2000, i.e. on the same day of its

execution. Leaving Ext.23 unregistered creates a doubt in the mind of Signature Not Verified Digitally Signed the Court that the same was not finalized. The admitted fact remains that Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication the Testator died on 29.04.2001, i.e. after 11 days of alleged execution Location: Orissa High Court, Cuttack Date: 16-Aug-2023 17:30:47

of Ext.23. If the status of the Testator is considered as a retired

Government servant and the fact remains that he registered the other

Will on the date of its execution, then the inference is clear that the Will

prepared under Ext.23 was not finalized and is at the draft stage only.

The further doubt created in the mind of the Court that when the

Testator chose to execute the earlier Will on 24.11.2000 then he would

have executed the second Will also on the same date or he could have

covered both self-acquired and joint family properties in the same Will

without waiting for a second Will, had he made up his mind in respect

of those joint family properties covered under Ext 23. Therefore, the

doubt raised by the trial court in respect of Ext.23 that the same is not

final, is found substantiated and supported by the circumstances.

Accordingly, this Court does not find any infirmity in such finding of

the Probate Court, which is confirmed accordingly.

15. In the result, both the appeals are dismissed being found

without merit. The Original LCR be returned to the Probate Court

without delay.

(B.P.Routray) Judge Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL C.R.Biswal/Secy. Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 16-Aug-2023 17:30:47