SAILABALA SATPATHY Vs. PARBATI SATPATHY

JUDGEMENT

(1.) THIS appeal arises out of an application under Section 276 of (The Indian) Succession Act, 1925 (hereinafter referred to as 'The Act'). The plaintiff is the appellant who propounder of a will executed by her father Sudarsan Satpathy. Sudarsan Satpathy died on 2.11.1979 leaving behind his widow, plaintiff, a daughter and three grand children of two pre -deceased daughters. It is averred in the plaint that on 10.10.1977 about 2 years before his death, Sudarsan had executed a will duly attested in favour of the applicant, who happened to be his youngest daughter and the only surviving child. He had also got it registered in the office of the District Sub -Registrar, Dhenkanal on the same day. After the death of Sudarsan, appellant filed an application under Section 276 of the Act for probate of the will, left by her father which was registered as Original Suit No. 1/81. In the said suit, widow of late Sudarsan was impleaded as defendant No. 1, the children of pre -deceased daughters were impleaded as defend 2 to 5 and the alleged adopted son of Sudarsan was impleaded as defendant No. 6. All the defendants contested the probate proceeding. The learned District Judge after hearing both the sides rejected the prayer of the plaintiff and dismissed the suit. Challenging the judgment of the learned District Judge refusing to grant the application under Section 276 of the Act this Miscellaneous appeal has been filed.

(2.) THE appellant raised various points challenging the said order refusing to probate the will. The Advocate for the respondents raised the question of maintainability of the probate proceeding. So before going to the merits, the question of maintainability of the probate proceeding is taken up as a preliminary point. The will in question was executed in the district of Dhenkanal and the disputed properties bequeathed under the will are also situated in the district of Dhenkanal which constituted a feudatory state before 1943, therefore, the question arises as to whether in view of Sections 57, 213 and 264 of the Act and proceeding under Section 276 of the Act is maintainable. Section 57 of the Act lays down that application under the Indian Succession Act is Confined to the places specified in Clauses (a), (b) and (c) of the said Section. Section 213(1)(2) and Section 264 of the Act are as follows:

(3.) READING Sections 57, 213(1)(2) and 264 of the Indian Succession Act together, it is clear, that in order to derive right under a will it is not required under law to probate the will, if the will is executed in a place outside the areas specified in the clauses of Section 57 of the said Act. In this case since the will was executed in the district of Dhenkanal which was outside the area specified in clauses of Section 57 of the act is not required to be probated, and Section 264 makes it clear that the learned Sessions Judge had no jurisdiction to receive the application for probate, therefore the entire proceeding before the learned District Judge was misconceived and is without jurisdiction. This view has also been taken in F.A. 224/80 Sadhanabala Bardhan and Ors. v. Amulya Chandra Guin and Ors. disposed of on 11.9.1990 and in S.A. 480/1973 Gunanidhi Mohanty v. Chaitan Charan Mohanty. disposed of on 15.2.1977.