BIDULATA MOHANTY Vs. SANGRAM KESARI NAYAK

JUDGEMENT

(1.) Both the appeals have been filed by the appellant against the common judgment and order dated 19.2.2005 passed in Original Suit No. 9 of 2003 (Probate Misc. Case No. 19 of 1996) and Original Suit No. 10 of 2003 (Probate Misc. Case No. 1 of 1997) by the learned Civil Judge (Senior Division), First Court, Cuttack.

(2.) O.S. No. 9 of 2003 was filed by the present respondent under Sections 276 and 278 of the Indian Succession Act for grant of probate of the Will dated 6.11.1995 and O.S. No. 10 of 2003 was filed by the present appellant for grant of probate of the Will dated 26.1.1995. Both the Wills were executed by the testatrix, namely, Major Miss. Sybil Holmes, daughter of late Alfred Joseph Holmes. The appellant was the defendant in O.S. No. 9 of 2003, where the respondent was the plaintiff and it was vice-versa in O.S. No. 10 of 2003.

(3.) It appears from the facts of the case that under Ext. 1, the Will allegedly executed in favour of the respondent by the testatrix on 6.11.1995 has been drafted in English. The entire movable and immoveable properties of the testatrix have been bequeathed to the propounder (respondent) to be utilized for the purpose of running an orphanage for the orphans and destitute children. The properties so bequeathed is placed under three schedules i.e. A, B and C. In Schedule-A, the furniture, fixtures, utensils, sewing machines and telephone etc. are bequeathed. In Schedule-B, the bank accounts of different banks and in Schedule-C, the immoveable properties consisting of one pucca building with vacant land of Ac. 0.76 decimals and an English Medium School at Kesharpur in the name and style of "Major Holmes School" started in the year, 1974 are bequeathed to the beneficiary. Therefore, Ext. 1 contains a complete list of the total moveable and immoveable left behind by the deceased testatrix. The peculiarity of the bequeath made in Ext. 1 is that the executor has been restrained and directed not to sell or mortgage the Schedule-C properties in any manner. As such, the intention behind the disposition is that the executor is to act more or less as a manager of the proposed orphanage and not to alienate the same for his personal benefit or gain.