SAKUNTALA DASI Vs. KUSUM KUMARI SARKAR

JUDGEMENT

(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.) 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 lefts? 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.