RAJKISHORE PANDA Vs. HARIBANDHU MAHALA

JUDGEMENT

(1.) THE appellants applied for revocation of grant of probate at the instance of the respondents in Original Suit No. 1 of 1968, by the learned District Judge Balasore, on 22-8-1908, That application made on 9-12-68 was registered as Miscellaneous case No. 32 of 68 and though made under Order 9, Rule 13 of the Code of Civil procedure, was treated as one under Section 203 of the Indian Succession Act. As the learned District Judge declined to revoke the probate, the appellants have come up in appeal to this Court.

(2.) ONE Juihesti Panda was alleged to have executed an unregistered will dated 173-1967 and died on 2-11-1967. The testator had 6. 69 acres of land. In terms of the testamentary disposition, the following three institutions were to benefit;- (1) Banitiya Middle English School through its Secretary Haribandhu mahalla; (2) Sri Ghateswar Mahadev through Marfatdar Gadadhar Dixit; and (3) Sri Ganes Jew Thakur of Banitiya through Marfatdars:-- (a) Harihar Panigrahi, (b) Mahendra Panda, (c) Gadadhar Dixit. On 22-12-1967, an application under Section 276 of the Indian Succession Act for probate of the aforesaid will was filed by Haribandhu Mahalla and Gadadhar Dixit implending Sri Ganesh Jew Thakur through the two marfatdars as opposite parties. In due course the opposite parties were set ex parte and on 22-8-1968, probate was granted. As already indicated, after enquiry on the petition for revocation, the learned District Judge rejected the petition on 30th of January, 1969. The present appeal challenges that order.

(3.) ONE of the points of dispute was the absence of any relationship of the present appellants with the testator and consequently absence of any cause of action on the probate being granted by the will. An application for additional evidence was made in this Court at the instance of the respondents. The additional evidence consisted of a petition made by the present appellants for grant of a certificate of succession in respect of the estate of the testator wherein their relationship with the testator was differently indicated than what is asserted in the present case. The two genealogies -- one appended to the petition for revocation end the other to the petition for certificate of succession -- materially differ. The additional evidence has been admitted.