SHANTI DEVI AGARWALLA Vs. KUSUM KUMARI SARKAR

JUDGEMENT

(1.) IN a pending probate proceeding (O. S. No. 25 of 1966) before the learned district Judge of Cuttack an application was made by the petitioner purporting to be under Order 1, Rule 10, C. P. C. read with Section 268 of the Indian Succession act, 1925 to be added as a party and enter caveat. The learned District Judge has refused leave to the petitioner- Hence this revision.

(2.) THE historical background of the case may now be furnished in order to appreciate the point required to be decided. One Adhar Chandra Sarkar owned properties located in the town of Cuttack and at Sundargarh. He died on 5-6-62, kusum Kumari Dasi, opposite party No. 1, admittedly was the wife of Adhar. Sakun-tala, opposite party No. 2, claims to be the second wife. Her status as wife has, however, not been, admitted by Kusum Kumari. Adhar is said to have left behind two wills -- one executed on 5-4-62 which is registered document and the other is dated 23-5-62 and it is not registered. Sakuntala applied for probate of the registered will Her application was registered as O. S. No. 16 of 1965. Kusum Kumari similarly applied for probate of the unregistered will and her application was registered as O. S. No. 25 of 1966. The registered will has been marked as Ext. 2 and the unregistered will as Ext. G. The material difference between the two wills both of which were executed within a period of about two months before the death of the testator and with a gap of about seven weeks between the two inter se may now be noticed. Ext, 2 provides that all the immovable and movable properties at Cuttack as also the property at sundargarh acquired by Adhar in the name of the minor son through Sakuntala would go to her and her son, and the rest of the immovable properties as also movables at Sundargarh would 20 to Kusum Kumari. Ext. C makes provision that the residential house at Jagannath Ballav in the town of Cuttack along with movables as also the homestead described in schedule Ka would go to Sakuntala and her son. They would be given maintenance at the rate of Rs. 15/- per month out of the income of the other properties of the testator. All the remaining nroperties of Adhar are to go to Kusum Kumari. There is some difference in the description of Sakuntala in the two documents. In the registered will she has been described as the wife while in Ext. C she seems to have been referred to as the keep. On 27-10-64. Sakuntala sold the house at Cuttack to the petitioner for a sum of rs. 20,000/ -. Ext. C was disputed to be forged and it was sent out to an expert for examination. The expert sent his report, but when he was to be examined he demanded a heavy fee. Ultimately by consent of the parties on 10-7-68 a fresh expert was required to examine the document. On 10-9-68. Sakuntala applied for withdrawal of her Probate application. The learned Trial Judge refused leave for withdrawal. That matter and a connected matter were subjected to revisions before this Court in C. R. Nos. 140 and 141 of 1969. By decision dated 18-2-70 I vacated the order of the learned District Judge and granted leave to Sakuntala to withdraw her petition. My iudgment is reported in AIR 1971 Orissa 103. Soon after Sakuntala made an application for withdrawal of her probate petition the petitioner made an application on 16-9-68 to the court for leave to be added as a party and for permission to enter caveat. That application has now been rejected and the order rejecting the application is impugned in this revision.

(3.) MR. N. Mohanty for the petitioner contends that the petitioner has a substantial stake in the property and she must be found entitled to resist grant of probate of the will (Ext. C ). If Ext. C is accepted as a genuine will of Adhar and probate is granted to that document, her vendor's title to the property would stand negatived and her title to the property under the registered sale deed dated 27-10-64 would stand in jeopardy. Thus she Is entitled, according to Mr. R. Mohanty to enter caveat and contest probate of Ext. C. Answering the objection regarding delay he has contended that there is sumptuous evidence on record to show that sakuntala. opposite party No. 2. was contesting the proceeding with the consideration money of the sale deed and as the vendor was litigating to support her own title thereby supporting the title of the vendee there had been no justification for the petitioner to directly appear in the case. It was only when the petitioner found that the opposite party No. 2 was won over and was no more pressing her own title that she wanted to be brought on the record. Even if that is at a belated stage, in the circumstances she cannot be kept out of the proceeding on the basis of delay.