BHARTRUHARI MAHATAB Vs. DOLAGOVINDA PRADHAN

JUDGEMENT

(1.) This is an appeal under Section 299 of the Indian Succession Act, 1925.

(2.) The relevant facts briefly are that the appellant filed a petition under Section 276 of the Indian Succession Act, 1925 (hereinafter referred to as "the Act") for Letters of Administration in the Court of the learned District Judge, Cuttack, which was registered as Misc. Case No. 14 of 1987. In the said petition, the appellant claimed that he is the adopted son of late Dr. Harekrushna Mahatab who executed a Will in April, 1960 bequeathing all his properties in favour of the appellant and Dr. Harekrushna Mahatab died on 2-1-1987. Along with the petition the appellant filed an affidavit annexing thereto a list of all the properties of the deceased Harekrushna Mahatab and item No. (iv) of the said list annexed to the affidavit comprised of a property located on Ac.0.520 decimals of land out of Plot No. 1160 in Khata No. 683 in Mouza Ramagarh in Cuttack town. Notices were issued by the learned District Judge along with general and special citations. The near relations of the deceased Dr. Harekrushna Mahatab named in the application did not file any objection. But respondent Nos. 1 and 2 intervened and filed separate objections contending that the aforesaid property in Cuttack town under item No. (iv) of the list filed along with the affidavit of the appellant did not belong to deceased Dr. Harekrushna Mahatab and instead belongs to the Prajatantra Prachar Samiti. In view of the said contention raised by respondent Nos. 1 and 2, the proceedings for Letters of Administration were converted into a regular suit numbered as O.S. No. 48 of 1989 and tried by the learned civil Judge (Senior Division), 1st Court, Cuttack, in accordance with the provisions of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code". In the said O.S. No. 48 of 1989, the learned Civil Judge (Senior Division) framed four issues as detailed herein below :-

(3.) The Stamp Reporter made a report that the court-fee of Rs. 12/- paid on the memorandum of appeal was not sufficient and that the misc. appeal was not maintainable and instead a First Appeal was available against the impugned judgment and order of the learned Civil Judge. On 13-3-1997, this Court admitted the appeal subject to the condition that the question of maintainability of the appeal raised by the Stamp Reporter shall be considered after appearance of the respondents. In response to the notices issued by this Court in this appeal, respondent Nos. 1 and 2 initially appeared through their counsel Mr. B. K. Pal but thereafter Mr. B. K. Pal withdrew his appearance. On 17-4-2003 when the appeal was taken up for hearing, Mr. Pal produced before the Court a copy of his letter dated 26th of February, 2003 addressed to Shri Prabhas Chandra Das, Advocate who had entrusted the case to him on behalf of respondent Nos. 1 and 2 from which it appeared that copies of the letter had also been marked to respondent Nos. 1 and 2. Receipts of Postal Department showing despatch of copies of said letter to respondent Nos. 1 and 2 were also produced before the Court. A.D. cards acknowledging receipt of the said letter on 11-3-2003 and 10-3-2003 by respondent Nos. 1 and 2 were also produced before the Court. In the said letter dated 26th of February, 2003, Mr. Pal had intimated respondent Nos. 1 and 2 about withdrawal of his appearance from the appeal and yet respondent Nos. 1 and 2 had not taken steps to engage another advocate in the appeal. In the circumstances, on 17-4-2003, the Court heard Mr. G. Rath, learned counsel for the appellant and Mr. A. Swain, learned counsel appearing for the applicant - intervenor who had filed Misc. Case No. 1466 of 2002 for intervention.