Orissa High Court
Lingaraj Nayak (Dead) & Anr vs Udhava Charan Nayak on 30 January, 2025
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM-SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Feb-2025 11:39:32
IN THE HIGH COURT OF ORISSA AT CUTTACK
FAO No.176 of 2019
(In the matter of an appeal under Section 299 of the Indian Succession
Act, 1925.)
Lingaraj Nayak (dead) & Anr. .... Appellant(s)
-versus-
Udhava Charan Nayak .... Respondent (s)
Advocates appeared in the case through Hybrid Mode:
For Appellant (s) : Mr. Sidhartha Mishra (1), Adv.
For Respondent (s) : Mr. Trilochan Nanda, Adv.
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-06.01.2025
DATE OF JUDGMENT:-30.01.2025
Dr. S.K. Panigrahi, J.
1. In this appeal, the appellants are challenging the order dated 27.12.2018
passed by the learned 2nd Additional Senior Civil Judge, Bhubaneswar
in C.S. No.3/2016(T) arising out of Test Case No.14/2007.
2. It is apparent from the record that the Appellant No.1 (Lingaraj Nayak)
has died during pendency of this FAO and the legal heirs of the
deceased Appellant No.1 have been substituted vide order dated
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Feb-2025 11:39:32
01.08.2023 passed in I.A. No.1553 of 2019 arising out of FAO No.176 of
2019.
I. FACTUAL MATRIX OF THE CASE:
3. The brief facts of the case are as follows:
(i) The Appellant No.1 was the adopted son of Late Krushna Chandra
Nayak, whereas the Respondent is his nephew.
(ii) During his lifetime, Late Krushna Chandra Nayak, purchased the
schedule land on a lease-cum-sale basis from the Government of
Odisha.
(iii) The Appellant No.1 had initiated probate proceedings vide TEST Case
No.14 of 2007, before the District Judge, Khurda, Bhubaneswar.
However, after a lapse of five years, he filed a petition seeking to
withdraw the said probate proceeding.
(iv) The District Judge, Khurda, Bhubaneswar, rejected the petition of
Appellant No. 1 for withdrawal vide order dated 24.04.2012. Aggrieved
by this, the Appellant No. 1 challenged the said order before this Court
in W.P.(C) No. 13599 of 2012.
(v) Meanwhile, the Respondent filed a petition seeking transposition as a
petitioner in the probate proceedings, contending that the Will was in
favor of both parties, and therefore, probate could not be declined at the
instance of one party alone.
(vi) This Court, by order dated 12.05.2014, disposed of W.P.(C) No. 13599 of
2012 with a direction to the District Judge, Khurda, Bhubaneswar, to
reconsider both the application of withdrawal and the application for
transposition.
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Feb-2025 11:39:32
(vii) Subsequently, the Respondent was transposed as the petitioner in the
probate proceedings before the District Judge.
(viii) Upon the grant of probate becoming contested, the matter was
transferred to the 2ndAdditional Senior Civil Judge, Bhubaneswar, for
adjudication on merits, where it was renumbered as C.S. No. 03 of 2016
(T), arising out of TEST Case No. 14 of 2007.
(ix) Based on the pleadings of the parties, and after recording the evidence,
the 2ndAdditional Senior Civil Judge, Bhubaneswar, by the order dated
27.12.2018, allowed probate of the Will in favor of the Respondent and
Appellant No.1. Aggrieved by this decision, the present appellants have
filed this appeal.
II. SUBMISSIONS ON BEHALF OF THE APPELLANTS:
4. Learned counsel for the Petitioner earnestly made the following
submissions in support of his contentions
(i) The Appellants submitted that the Respondent is neither a descendant
of the testator nor has he rendered any significant services to him
during his lifetime.
(ii) The Appellants further submitted that the execution of the alleged Will
is suspicious, as the probate proceedings were initiated 25 years after
the testator's death. Krushna Chandra Nayak passed away in the year
1990, while the probate petition was filed in 2007. Such an extraordinary
delay casts serious doubts about the authenticity of the Will and
warrants the dismissal of the probate proceedings. Furthermore, as the
testator passed away in 1990, the probate proceedings are barred by the
law of limitation.
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Feb-2025 11:39:32
(iii) The Appellants further submitted that the alleged ‚Will‛ stipulates that
the Respondent and Appellant No. 1 shall jointly own Plot No. 83,
measuring 32 square feet, in equal shares. However, the ‚Will‛ is silent
on the ownership and alienation of the remaining 9600 square feet
comprising a double-storied shop-cum-residential building situated on
the same plot. In the absence of any provision, addressing this
substantial portion, the Will becomes impossible to execute and is
rendered void.
(iv) The Appellants submitted that the probate proceedings were allowed
without affording them an opportunity to adduce rebuttal evidence.
The 2ndAdditional Senior Civil Judge, Bhubaneswar, permitted the
Defendants to submit evidence on 16.05.2018, despite a Miscellaneous
Petition being pending, and without securing the crucial testimony of
the Sub-Registrar, as directed by the earlier court order. Subsequently,
the 2nd Additional Senior Civil Judge, Bhubaneswar closed the
Appellants' evidence and pronounced the impugned decision, which is
bad in law and liable to be set aside.
(v) The Appellants further contended that the 2ndAdditional Senior Civil
Judge, Bhubaneswar, erred by failing to consider the entitlement and
standing of Appellant No. 2, the legally married wife of the deceased
testator and a Class-I heir. As a Class-I heir of the property, her rights
should have been duly examined before granting probate. The failure to
do so amounts to a material irregularity, undermining the fairness of
the proceedings.
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Feb-2025 11:39:32
III. SUBMISSIONS OF BEHALF OF THE RESPONDENT:
5. Per contra, the learned counsel for the Opposite Party earnestly made
the following submissions in support of his contentions:
(i) The Respondent submitted that Late Krushna Chandra Nayak had
executed a Registered Deed of Will on 24.11.1982 in favor of Appellant
No. 1 and the Respondent. The ‚Will‛ was duly registered at the Sub-
Registrar's Office, Bhubaneswar, in the presence of two attesting
witnesses. The recitals of the Will unequivocally demonstrate that it was
the testator's last Will and testament, executed voluntarily, out of love
and affection, and free from coercion or undue influence.
(ii) The original deed was under the custody of the present Appellant No.1,
who initially filed a probate proceeding in TEST Case No. 14 of 2007
before the District Judge, Khurda, Bhubaneswar. However, he later
sought to withdraw the proceedings, which were subsequently pursued
by the Respondent after being transposed as the petitioner.
(iii) The execution and attestation of the registered Will were duly proven
by the Respondent. Section 63 of the Indian Succession Act, 1925,
mandates that a Will must be attested by at least two witnesses, while
Section 68 of the Indian Evidence Act, 1872, requires the testimony of at
least one attesting witness to prove its execution. Both attesting
witnesses deposed that the testator, Krushna Chandra Nayak, signed
the Will in their presence and presented it for registration at the Sub-
Registrar's office. In contrast, the Appellants failed to produce any oral
or documentary evidence to rebut the Respondent's case. Accordingly,
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Feb-2025 11:39:32
based on the evidence adduced, the probate of the Will was rightly
granted.
(iv) The Respondent submitted that the right accruing from the Will is a
continuous right, exercisable at any time after the testator's death. While
the delay in initiating probate proceedings must be explained, it does
not constitute an absolute bar to such proceedings. The 2ndAdditional
Senior Civil Judgerightly observed that once the Will's execution and
attestation are proven, any delay in filing the probate petition does not
affect the validity of the Will.
(v) Both the Appellant No. 1 and the Respondent are equal beneficiaries
under the Will, each entitled to a half share in the property. They have
constructed their respective buildings and stalls on their allotted
portions. The Appellants' contention that the Will does not mention the
residential building and stalls is an afterthought, devoid of any
supporting evidence. Their actions reflect a mala fide intention to
appropriate the entire property, in direct contravention of the Will's
terms, which clearly bequeath equal shares to both parties.
(vi) The Respondent contended that the impugned judgment does not suffer
from any illegality or infirmity. The 2ndAdditional Senior Civil Judge,
Bhubaneswar rightly granted probate of the Will in favour of both
parties, and therefore, the judgment warrants no interference by this
Court.
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Feb-2025 11:39:32
IV. FINDINGS OF THE 2NDADDITIONAL SENIOR CIVIL JUDGE, BHUBANESWAR:
6. The 2ndAdditional Senior Civil Judge, after reviewing the pleadings,
evidence, and hearing arguments from both parties, made the following
findings:
(i) Under the Limitation Act, 1963, no period is prescribed within which
an application for probate, letters of administration or succession
certificate must be made. The assumption that under Article 137 of the
Limitation Act, 1963, the right to apply necessarily accrues on the date
of the death of the deceased is unwarranted. The application for probate
is for the Court's permission to perform a legal duty created by a Will or
for recognition as a testamentary trustee and is a continuous right
which can be exercised any time after the death of the deceased, as long
as the right to do so survives and the object of the trust exists or any
part of the trust, if created, remains to be executed. The right to apply
would accrue when it becomes necessary to apply which may not
necessarily be within three years from the date of the deceased's death.
(ii) Delay beyond three years after the deceased death would arouse
suspicion and greater the delay, greater would be the suspicion. Such
delay must be explained but cannot be equated with the absolute bar of
limitation and once execution and attestation are proved, suspicion of
delay no longer operates.
(iii) In absence of any rebuttal evidence and with the presence of witnesses
during the execution of the Will, it is presumed that Krushna Chandra
Nayak was of sound mind and understood his actions act at the time of
execution of the Will. The affidavit of the attesting witnesses further
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Feb-2025 11:39:32
strengthens the presumption that Krushna Chandra Nayak was of
sound mind and executed the Will of his free will, without any coercion.
V. COURT'S REASONING AND ANALYSIS:
7. Heard the Learned Counsels for the parties and perused the documents
placed before this Court.
8. At the outset, this Court finds it imperative to examine the applicability
of Article 137 of the Limitation Act, 1963, to applications for probate of a
Will before delving into the merits of the case.
9. The provisions of Article 137 of the Limitation Act, 1963, are not
confined to the Code of Civil Procedure and can be extend to petitions
or applications under any Act filed in a civil court.
10. The Supreme Court in Kunvarjeet Singh Khandpur v. Kirandeep Kaur1
observed that Article 137 of the Limitation Act, 1963 is applicable to an
application made to the District Judge under Section 264 of the Indian
Succession Act, 1925.
11. It is crucial to note that under Article 137 of the Limitation Act, 1963, the
limitation period of three years is to be computed from the date on
which the 'right to apply accrues'. In the context of probate of Will, the
right to apply for probate is a continuous right that may be exercised at
any time after the death of the testator. It accrues when a dispute arises
over the Will or when acknowledgment by the court becomes necessary.
12. In this regard, the Supreme Court in Kunvarjeet Singh (supra) observed
that an application for probate merely seeks recognition from the court
(2008) 8 SCC 463
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Feb-2025 11:39:32
to perform a duty. Owing to the nature of such proceedings, it is a
continuing right. It was further observed as reproduced hereinunder:
"15. Similarly reference was made to a decision of the Bombay
High Court in Vasudev Daulatram Sadarangani v. Sajni Prem
Lalwani [AIR 1983 Bom 268]. Para 16 reads as follows: (AIR
p. 270)
"16. Rejecting MrDalpatrai's contention, I summarise
my conclusions thus--
(a) under the Limitation Act no period is advisedly
prescribed within which an application for probate, letters
of administration or succession certificate must be made;
(b) the assumption that under Article 137 the right to
apply necessarily accrues on the date of the death of the
deceased, is unwarranted;
(c) such an application is for the court's permission to
perform a legal duty created by a will or for recognition
as a testamentary trustee and is a continuous right which
can be exercised any time after the death of the deceased,
as long as the right to do so survives and the object of the
trust exists or any part of the trust, if created, remains to
be executed;
(d) the right to apply would accrue when it becomes
necessary to apply which may not necessarily be within 3
years from the date of the deceased's death;
(e) delay beyond 3 years after the deceased's death would
arouse suspicion and greater the delay, greater would be
the suspicion;
(f) such delay must be explained, but cannot be equated
with the absolute bar of limitation; and
(g) once execution and attestation are proved, suspicion
of delay no longer operates."
Conclusion (b) is not correct while Conclusion (c) is the
correct position of law."
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Feb-2025 11:39:32
13. It is therefore evident that the right to apply for probate arises when it
becomes necessary, and this need not necessarily arise within three
years from the date of the deceased's death. While delay may raise
suspicion, it cannot, by itself, constitute an absolute bar to an
application for probate; as rightfully held by the lower court.
14. In the instant case, the Appellant No.1 had initially filed a probate
proceeding in TEST Case No. 14 of 2007 before the District Judge,
Khurda, Bhubaneswar, which were later withdrawn. The Respondent
had subsequently applied for transposition, and the same was allowed.
15. Furthermore, the Appellants contended that the lapse of 25 years casts
doubt on the authenticity of the Will. While such delay may arouse
suspicion, in the present case, the Appellants have not submitted
anything to contradict the authenticity of the document. The Will was
duly attested, and the attesting witnesses were examined by the
2ndAdditional Senior Civil Judge, Bhubaneswar. In the absence of any
proof to the contrary, the probate was granted. Once execution and
attestation have been proved, mere suspicion arising from delay cannot
operate as a bar. The Appellants have failed to demonstrate any
grounds warranting intervention by this court.
16. This Court further finds no merit in the contention of the appellant that
the 2ndAdditional Senior Civil Judge, Bhubaneswar, erred by failing to
provide an adequate opportunity to the appellant. The record clearly
reflects that the petitioner examined witnesses, while the Appellant
failed to present any evidence to challenge the validity of the Will.
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Feb-2025 11:39:32
17. This Court also finds no merit in the contention that Appellant No. 2,
who is the legally married wife of the deceased testator and a Class-I
heir, had a direct interest in the property and that her rights were not
considered by the 2ndAdditional Senior Civil Judge, Bhubaneswar,
before granting probate.
18. In Uma Devi Nambiar v. T.C. Sidhan2 the Supreme Court has succinctly
observed that a Will inherently deviates from the normal mode of
succession, often reducing or excluding natural heirs. This alone does
not constitute a suspicious circumstance, especially when the bequest
benefits an offspring. The propounder must dispel genuine and
substantive doubts, and if successful, the Will must be upheld, even if it
appears unconventional or unnatural. This was replicated hereinunder:
"16. A Will is executed to alter the ordinary mode of
succession and by the very nature of things, it is bound to
result in either reducing or depriving the share of natural
heirs. If a person intends his property to pass to his natural
heirs, there is no necessity at all of executing a Will. It is true
that a propounderof the Will has to remove all suspicious
circumstances. Suspicion means doubt, conjecture or mistrust.
But the fact that natural heirs have either been excluded or a
lesser share has been given to them, by itself without anything
more, cannot be held to be a suspicious circumstance especially
in a case where the bequest has been made in favour of an
offspring. As held in P.P.K. Gopalan Nambiar v. P.P.K.
Balakrishnan Nambiar [1995 Supp (2) SCC 664 : AIR 1995
SC 1852] it is the duty of the propounder of the Will to remove
all the suspected features, but there must be real, germane and
valid suspicious features and not fantasy of the doubting
mind. It has been held that if the propounder succeeds in
(2004) 2 SCC 321
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Feb-2025 11:39:32
removing the suspicious circumstance, the court has to give
effect to the Will, even if the Will might be unnatural in the
sense that it has cut off wholly or in part near relations.
(See Pushpavathi v. Chandraraja Kadamba [(1973) 3 SCC 291
: AIR 1972 SC 2492] .) In Rabindra Nath
Mukherjee v. Panchanan Banerjee [(1995) 4 SCC 459] it was
observed that the circumstance of deprivation of natural heirs
should not raise any suspicion because the whole idea behind
execution of the Will is to interfere with the normal line of
succession and so, natural heirs would be debarred in every
case of Will. Of course, it may be that in some cases they are
fully debarred and in some cases partly."
19. It is thus clear that the exclusion of a Class I heir from a testamentary
disposition, in itself, does not render the Will invalid or raise a
presumption of illegality. A Will, by its very nature, allows the testator
to deviate from the ordinary rules of succession and makes specific
bequests in accordance with their personal wishes. Such deviations,
even if they result in disinheritance or reduced shares for certain heirs,
do not inherently cast doubt on the validity of the testamentary
document unless accompanied by substantive suspicious circumstances.
20. In the present case, the Will has been duly executed and attested by
competent witnesses, adhering to the requirements prescribed under
the law. There is no evidence on record to suggest any lack of
authenticity or procedural irregularity in its execution. Furthermore, the
mere efflux of time does not invalidate the Will or extinguish the right
to apply for probate. Unlike other claims, the right to seek probate does
not fall under the strict limitations of a time bar; rather, it accrues when
a dispute arises regarding the Will or when judicial acknowledgment of
Designation: AR-CUM-SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 03-Feb-2025 11:39:32
the testamentary instrument becomes necessary. This principle ensures
that the intentions of the testator are respected and preserved, even in
cases where the matter surfaces after considerable time. Therefore, the
validity of the Will remains intact unless challenged on genuine and
legally recognized grounds.
VI. CONCLUSION:
21. In light of the foregoing, this Court finds that the appellants have failed
to establish any substantive grounds necessitating this Court's
intervention. Consequently, the order passed by the learned
2ndAdditional Senior Civil Judge, Bhubaneswar, granting probate, does
not warrant interference and is hereby affirmed.
22. The present FAO is hereby dismissed.
23. Interim order, if any, passed earlier stands vacated.
(Dr.S.K. Panigrahi)
Judge
Orissa High Court, Cuttack,
Dated the 30th January, 2025/
