DAMJI NARSHI DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS Civil Revision is directed against the order dated 27.8.2001 passed by the Additional District Judge, Angul in Probate Misc. Case No. 227 of 1999 dismissing the application of the petitioner praying to include the properties situated at Talcher, Pallahara, Telkoi, Deogarh and Rajkot in the probate proceeding.

(2.) THE brief facts as narrated in the revision application are as follows :

(3.) THE Additional District Judge, Angul by his order dated 27.8.2001 rejected the said application and on the same day dismissed the Probate Misc. Case No. 227 of 1999 for nonpayment of duty money in respect of Angul property. The petitioner in this proceeding challenges the impugned order dated 27.8.2001. On that day, the order was passed rejecting the application of the petitioner to include the properties which were abandoned by virtue of memo filed in the said proceeding but the said application was dismissed on the ground that since the petitioner had earlier filed a memo abandoning his claim over the said properties, he cannot be allowed to include these properties. After rejecting the petition, the trial Court directed the petitioner to deposit the duty money by 3 P.M. on the same day, i.e., on 27.8.2001. It is worthwhile to mention here that the computation of duty money as revealed from the record was done by virtue of order dated 2.5.2001. The said order is not under challenge in this proceeding. However, learned counsel for the petitioner submitted that the estate of Kanchan Gauri at Angul which has come to the hands of the petitioner under the Will is valued at Rs. 4,00,000/ - and the duty money under the probate proceeding is payable on Rs. 4,00,000/ -. According to the petitioner, no duty money is payable in respect of the properties at Talcher, Rajkot, Pallahara, Deogarh and Telkoi as provided under Section 57 of the Indian Succession Act and by mistake only the petitioner has deposited the duty money in respect of the aforesaid properties, i.e., to the tune of Rs. 32.000/ - and the same can be taken to be the duty money towards the Angul property on the valuation of Rs. 4.00.000/ - which comes to Rs. 27.000/ -. Learned counsel for the petitioner from the inception drew my attention to the Orissa Gazette and Section 57 of the Indian Succession Act as well as Section 213 of the Indian Succession Act saying that no probate is necessary in case of the properties at Talcher, Rajkot, Pallahara, Deogarh and Telkoi as it is covered under Clause -A of Section 57 of the Indian Succession Act. I have stated earlier that it is only the order dated 27.8.2001 which is under challenge in which the application under Section 151 CPC was dismissed. My consideration is confined only as to whether the order dated 27.8.2001 is correct or not. It is a fact that a memo was filed by the counsel for the petitioner to exclude the properties situated at Talcher, Pallahara, Telkoi, Deogarh and Rajkot and accordingly an order was passed on 2.5.2001 permitting the petitioner to abandon his claim on the properties located in the aforesaid places. When a regular application was filed under Section 151 CPC to include the properties, which were abandoned by virtue of the memo, in my considered opinion, the Additional District Judge, Angul, should not have rejected the said application on the ground that as the same was abandoned by virtue of a memo, the order cannot be reversed. That too, the petitioner comes up with a plea that the memo has been filed without instruction of the petitioner.