SMT. SUMATI MISHRA Vs. BASANTIMANI PATI

JUDGEMENT

(1.) Challenging the order dated 16.9.2002 passed by the learned District Judge, Balasore-Bhadrak, at Balasore in Misc. Case No. 1 of 1998 arising out of Misc. (Probate) Case No. 11 of 1998 rejecting the prayer for revocation and annulment of the ex parte order of probate granted by it on 23.7.1992.

(2.) The facts, as narrated in the memorandum of appeal, are as follows : Respondent No. 3 being a minor represented through his father respondent No. 2 filed Probate Misc. Case No. 11 (P) of 1988 before the District Judge, Balasore under section- 276 of the Indian Succession Act (hereinafter referred to as "the Act") praying for grant of probate in respect of the Will dated 11.4.1988 executed by one Sabitri Mishra wife of Harinarayan Mishra. Sabitri is the mother of the present appellants and respondents 1 and 2. In other words, the present appellants and respondent No. 1 are three daughters and respondent No. 2 is the son of said Sabitri. In the said probate proceeding, the present appellants were opposite parties. At the time of filing of the probate Misc. case, the present appellant No. 2 was a minor and notice of the proceeding was not served on the appellants. However, respondent No. 2 managed to make the notice sufficient and behind the back of the appellants get an ex parte order on 23.7.1992 and the probate was made ready on 15.5.1993. The appellants were aware about the said order on 24.11.1997 when they came to Balasore. Thereafter, they obtained a certified copy of the ex parte order dated 23.7.1992 and filed a petition for revocation of the probate and re- call of the ex parte order. Their specific plea was that Sabitri was suffering from high blood pressure and other ailments. Respondent No. 2 being the only son of Sabitri managed to executed the Will on 11.4.1988.in favour of his son. Sabitri being an illiterate and rustic village lady, respondent No. 2 influenced her to execute the said Will behind the back of the present appellants. Thereafter, he filed the probate proceeding, made the notice sufficient on the appellants by adopting fraudulent method and got the ex parte order. At that time appellant No. 2 was minor. In support of their case, the appellants produced the School Admission Register wherein the date of birth of appellant No. 2 has been reflected as 20.3.1973. Therefore, at the time of filing of the probate proceeding, she was only 15 years old but her age was shown as 19 years. Respondent Nos. 2 and 3 filed their objection denying the allegations made by the present appellants in their application and stating that the Will in question executed by Sabitri was a free and voluntary act. During the lifetime of Harinarayan and Sabitri, out of their own violation, the said Will was executed by Sabitri. The property belongs to Sabitri exclusively. In the said Will, respondent No. 1 who is the elder daughter of Sabitri and the sister of the present appellants were witnesses and the present appellants were also aware about the said facts. They did not oppose to the said Will. Therefore, the Will was probated. Even though notice was issued to the present appellants and the same was made sufficient on them, they did not appear. Therefore, an ex parte order was passed on 23.7.1992. Thereafter, the property was recorded in the name of the executors and the rent is being paid thereof. Thereafter the present appellants filed Probate Misc. Case No. 1 of 1998 only to harass respondents 2 and 3. On the above pleadings, the learned District Judge formulated two points to be decided in the said case which are as follows :

(3.) Both the parties adduced evidence in support of their respective pleas. The present appellants examined themselves as P.Ws. 2 and 1 respectively and filed documentary evidence i.e. School Leaving Certificate, application for inspection of record and mark-sheet as Exts. 1 to 3 respectively. Respondents examined three witnesses. Respondent No. 2 was examined as OPW-1. He produced documentary evidence marked as Exts. A to E which are the notice issued to Harinarayan Mishra and Jayantimani, notice served on the public place of village Rasalpur, notice served on residential place of Sabitri Mishra, notice on Sumati Mishra and Horoscope of Jayanti Mishra.