In Re: Smt. Swarnaprava Panda - Court Judgment

Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - rp-61, tankapani road, bhubaneswar, died issuless on 6.6.1997. the said deceased, before his death executed a registered will in sub-registrar's office, puri in favour of the appellant on 13.2.1991. she along with her husband was looking after him like a daughter till his last breath and performed his last rites. on a bare perusal of the evidence on oath in the court, it clearly appears that the deceased executed and registered his last will at puri in presence of p. 2 it appears clearly that she and her husband were looking after and maintaining testator till his demise and also performed his funeral rites and as such the appellant and her husband were not stranger to the deceased. 2 & 3 as well as the recitals of ext. the question whether a particular bequest is good or bad is not within the purview of the probate court. , probate court has signally failed to appreciate the aforecited case laws which were placed before him and in a superficial manner went to hold that the aforesaid case laws and some other decisions cited were not applicable to the instant case as the facts and circumstances are distinguishable.a.k. samantaray, j.1. aggrieved by the order dated 14.12.1998 of the district judge, khurda at bhubaneswar in probate misc. case no. 2 of 1997 refusing to grant probate, the present appellant has preferred this first appeal.2. the factual matrix of the case may be stated in the following paragraph:3. one raghunath purohit (hereinafter referred to as 'deceased') son of late radhakanta purohit resident of 260, kharvelanagar, unit-iii, bhubaneswar, lastly resided at plot no. rp-61, tankapani road, bhubaneswar, died issuless on 6.6.1997. the said deceased, before his death executed a registered will in sub-registrar's office, puri in favour of the appellant on 13.2.1991. she along with her husband was looking after him like a daughter till his last breath and performed his last rites. the appellant filed a probate misc. case under section 276 of the indian succession act, 1925 with a prayer to grant probate in respect of the movable and immovable properties of the deceased as per the will executed by him. in spite of issuance of special and general citation and publication of the notice in the daily 'samaj' no objection was received and as such there was no opposite party to the misc. case.4. by the impugned order dated 14.12.1998 the learned district judge, khurda dismissed the probate misc. case mainly on the ground that the execution and registration of the will is suspicious, as the appellant is in no way related to the deceased, the will is not valid and genuine, the same has not been executed out of his free will and no document has been filed in proof of the title and possession of the property in question.5. in support of her case, the petitioner-appellant examined herself as p.w. 1, pratap kumar das and dilip kumar das, as p.ws. 2 and 3 respectively. on a bare perusal of the evidence on oath in the court, it clearly appears that the deceased executed and registered his last will at puri in presence of p.ws. 2 & 3, the will being scribed by advocate, suvendu das vide ext.2. from a scrutiny of the impugned order passed by the learned district judge it appears that unnecessary and undue importance has been attached to minor discrepancies in the evidence of the p.ws., which are bound to occur due to passage of time. after all, p.ws. are not expected to speak the facts with mathematical precision.6. on further scrutiny of the unrebutted evidence of p.w. 1 and recitals of ext. 2 it appears clearly that she and her husband were looking after and maintaining testator till his demise and also performed his funeral rites and as such the appellant and her husband were not stranger to the deceased. similarly, it appears from the evidence of p.ws. 2 & 3 as well as the recitals of ext. 2 that the deceased has executed and registered ext. 2 out of his free will while in sound mind and absence of the appellant at the time of execution can never be a circumstance to suspect the genuineness of the document ext. 2, rather, it speaks of bona fide testamentary disposition by the deceased in respect of his estate.7. in a decision reported in (jaipur bench) smt. parvati @ kaushalya, petitioner v. chhitarmal, respondent it has been held that:the provisions are very clear. the probate court is only concerned with the question as to whether the document forwarded as last will of the deceased person was duly executed and attested in accordance with law and whether at the time of such execution, the testator had sound mind. the other question cannot be agitated in probate proceedings. i do not find any force in the submission made by the learned counsel for the petitioner and, held that the caveator cannot chalienge the title of testator or testatrix to the disputed property in the probate proceedings. however, it is clarified that in a regular suit before the court of competent jurisdiction the caveator can raise the question about the title qua the deceased. the probate generally does not come in the way in the matter of decision of title between the disputed parties.8. the provision of law relating to jurisdiction of probate court has been loudly enunciated by the apex court in the decision reported in : air1954sc280 iswar narain singh, appellant v. smt. kamta devi and ors. respondents. the apex court in the said decision relating to jurisdiction of the probate court stated as follows:the court of probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. the question whether a particular bequest is good or bad is not within the purview of the probate court.9. learned counsel for the appellant argued that on the face of the settled principle of law the learned court below, i.e., probate court has signally failed to appreciate the aforecited case laws which were placed before him and in a superficial manner went to hold that the aforesaid case laws and some other decisions cited were not applicable to the instant case as the facts and circumstances are distinguishable.10. in the instant case, as already pointed out the unrebutted testimony of the p.ws. and the document ext. 2 are adequate for grant of probate in favour of the appellant, which in the facts and circumstances of the present case cannot be denied.11. in the result, therefore, i allow the appeal and direct the district judge, khurda at bhubaneswar to grant probate to the appellant-petitioner.