Nava Dash Vs. Jairam Dash and ors. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 1. unsuccessful applicant for a letter of administration is the appellant in this appeal under section 299 of the indian succession act. it examines the document itself to find out whether it looks like a normal execution. where the document does not look like a normal execution, propounder is to explain the circumstances under which the suspicious circumstances in the document itself found place.1. unsuccessful applicant for a letter of administration is the appellant in this appeal under section 299 of the indian succession act.2. appellant filed an application for letter of administration of the will ext. 1 executed by deceased magar das on 7-6-1967 before his death. his case is that he is the adopted son of magar and is possessing the properties after his death through his adoptive mother when he was minor and thereafter himself on attaining majority.3. on issue of citation respondents appeared. while respondents nos. 1 and 2 supported appellant two daughters of magar contested the application. they denied execution of the will by deceased magar and claimed that he was not in a sound state of mind.4. appellant examined respondent no. 1 as a witness since he was one of the attesting witness. he also examined the scribe as a witness since he was the other attesting witness. the will was admitted to evidence without objection,5. trial court on consideration of the materials on record dismissed the application on the finding that the will is not genuine and proper attestation has not been proved. this is grievance of the appellant.6. in order that letter of administration shall be granted in favour of the appellant, he is to prove due execution of the will. due execution includes attestation as required under section 73 of the succession act and removal of suspicion about execution.7. conscience of the court is paramount in matters of testamentary succession. where some of the legal representatives are deprived of intestate succession on account of execution of the will, without any cogent explanation for such exclusion, court requires stronger and clear proof of due execution of a will. it examines the document itself to find out whether it looks like a normal execution. where the document does not look like a normal execution, propounder is to explain the circumstances under which the suspicious circumstances in the document itself found place. if there is no explanation or where the explanation is not cogent, court declines to grant letter of administration. where a party himself conducts the proceeding, court assists him to bring the suspicious circumstance to his notice for explanation. where, however, a party has engaged a lawyer to conduct the proceeding, the lawyer is required to advise the party to explain the circumstances and court need not bring the suspicious circumstance to notice of the party seeking explanation.8. in the present case a bare look at the will (ext. 1) would create suspicion in mind. top of the paper is vacant for about 2'. writing starts thereafter. d.t.t. and signature of magar is on the right hand margin and at the bottom. thumb impression at the bottom is over the portion already written. this is not a natural feature of writing a document. p.w. 3 is the scribe. in his deposition he stated in cross-examination that thirty years before, he was writing deeds. thus, he has experience as a deed writer. he stated that magar gave a draft and the paper on which he copied the draft. he ought to have explained why he did not write on the next page if the space at the bottom was not sufficient. comparison of both the thumb impressions show that the one on the right hand margin at the top in full whereas the one at the left hand botom is not full. thumb impression has not been attested by anybody. signature of magar is over the thumb impression. there is no evidence that except p.w. 1 who is paternal uncle of appellant, p.w. 3 the scribe and deceased magar the executant anybody else was present. thus, interference of the will being executed as a secret deal can legitimately be drawn on the facts of this case. appellant was aged seven years only when magar expired on 23-11-1947 in a village of dhenkanal. after death his widow was managing the properties. there is no clear evidence as to when management was given to appellant. a document admitting adoption of appellant by magar was executed by his widow which appears to have been cancelled. thus, appellant is required to prove his adoption in a properly constituted suit. in these circumstances, when the will itself appears to be suspicious, i am not inclined to direct grant of letter of administration in favour of the appellant.9. in result, there is no merit in this appealwhich is accordingly, dismissed. there shallbe no order as to costs.