MUNGESHWAR SAHOO, J.:– Originally, Surendra Nath Dutta filed title suit No.385 of 1995 praying for declaration that the plaintiff has got right title interest over Schedule I property of the plaint and for declaration that the defendants have no title to the property. During the pendency of the suit, the original plaintiff died. The defendant No.5, Rudra Pratap Dutta was transposed as plaintiff in the suit and, therefore, relief was added to the effect that after the death of original plaintiff, the present plaintiff has got right title over the suit property on the basis of registered will executed by the original plaintiff dated 01.01.1996. By the impugned Judgment and Decree dated 22.02.2007, the suit was dismissed. Against the said Judgment and Decree passed by Sri Chandra Shekhar Pradhan, Sub Judge II, Patna in title suit No.385 of 1995 the transposed plaintiff has filed this appeal.

2. According to the case of the original plaintiff as pleaded in the plaint, he had got 6 brothers who had separated from the plaintiff before 1934. The plaintiff passed accountancy examination in 1934 and became Chartered Accountant. He started his practice by opening a firm known S.N. Dutta and Company. The plaintiff has got 4 sons who are defendant Nos.2 to 5. The wife, Dharm Kumari Devi, the original defendant No.1 was the wife of original plaintiff. Out of the 4 sons, the eldest is mentally weak, second son is Advocate, 3rd son is engineer settled in London and 4th son, the defendant No.5, Rudra Pratap Dutta is graduate and is engaged in radio advertising profession. The plaintiff’s only daughter was settled with her husband in Muradbad. The plaintiff acquired two houses out of his own fund and nobody had contributed. The plaintiff acquired the suit property in the year 1953 when all his sons who are defendants were minor. He purchased for his own benefit without intending any benefit for wife. The plaintiff had purchased 11 katha 13½ dhur for consideration of Rs.51,827/- by registered sale deed dated 16.06.1953 out of his own fund paid by Bank draft or in cash but he took the sale deed in the name of his wife, defendant No.1 because to avoid possible claim by his brothers. The plaintiff became the absolute owner of the property. All the mutation and taxes were done in the name of his wife but the plaintiff remained absolute owner thereof. The defendant No.1 had no source of income and she was only a house wife. The defendants being the wife and sons are living in the house constructed by the plaintiff because they are family members. The plaintiff had constructed the building and the shop premises in S.P. Verma road and is realizing the rent from the tenants inducted by him.

3. The defendant No.1 developed some weakness towards her two sons, Ranjeet Kumar Dutta and Manendra Nath Dutta and she went in their collusion. The plaintiff developed eye trouble and two years before institution of the suit, he became blind. The papers and other valuable things including the sale deeds were in the custody of defendant No.1 and the plaintiff was not allowed to be accessed to the said document. Therefore, the plaintiff filed the present suit for declaration of title. After transposition, the defendant No.5 claimed that the property devolved on him and Usha Dutta wife of Mahendra Naryan Dutta on the basis of the registered will executed by plaintiff on 01.01.1996.

4. It may be mentioned here that originally the defendant No.5 had filed supporting written statement. On the death of original plaintiff, he was transposed as plaintiff.

5. The defendant No.1, i.e, the wife of original plaintiff, namely, Dhram Kumari Devi filed a contesting written statement. Her case in short is that the plaintiff is blind and in fact the suit has been filed by the defendant No.5 in the name of the original plaintiff. The original plaintiff was kept in confinement by the defendant No.5 and the others were not allowed to visit original plaintiff. Defendant No.5 was realizing t

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