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High Court Of Orissa
B. K. BEHERA, P. C. MISRA
RAJKISHORE PANDA - Appellant
Versus
B.M.E.BIDYAPITHA - Respondent
First Appeal 18 Of 1974
Decided On : 03/03/1986
WILL - EXECUTION - PROOF - SUSPICIOUS CIRCUMSTANCES - BURDEN OF PROOF - INDIAN SUCCESSION ACT, 1925 - SECTION 63.
Fact of the Case:
The appellants, contesting defendants in a suit for grant of Letters of Administration under Section 276 of the Indian Succession Act, claimed that they belonged to the same family as the testator and were entitled to succeed to his properties in the absence of other heirs. They alleged that the Will was a forged document manufactured by the scribe and the attesting witnesses.
Finding of the Court:
The court found that the Will (Ext. 1) was duly executed by the testator and that the plaintiffs were entitled to the issue of the Letters of Administration. The court held that the evidence on record did not warrant a conclusion that the state of health of the testator was such at the time of the execution of the Will that he was not in a position to execute it.
Issues: 1. Whether the Will (Ext. 1) was duly executed by the testator? 2. Whether the plaintiffs were entitled to the issue of the Letters of Administration?
Ratio Decidendi: 1. The court held that the Will was duly executed by the testator based on the evidence of the scribe and the attesting witnesses, who testified that the testator had voluntarily executed the Will after fully knowing and understanding its contents. 2. The court held that the plaintiffs were entitled to the issue of the Letters of Administration as the Will was genuine and valid.
Final Decision: The appeal was dismissed, leaving the parties to bear their own costs of the appeal.
BEHERA, J.
( 1 ) THC contesting defendants in a suit instituted by the respondents Nos. 1 and 2 as the plaintiffs for grant of Letters of Administration under S. 276 of the Indian Succession Act are in appeal against the decree passed by the learned District Judge, Balasore.
( 2 ) BRIEFLY stated, the case of the respondent Nos. 1 and 2 was that the late Jujesti Panda, who died on June 11, 1967 leaving no heirs or issues, being a religious-minded person, wanted to bequeath all his properties for good and religious purposes and accordingly on Mar. 17, 1967, he executed an unregistered Will (Ex. 1) scribed by Ramakrushna Mohanty (P. W. 1) and attested by Krushna Mahala (P. W. 2) and Bhairab Charan Pati (P. W. 3) at Bhadrak, could not get it registered as it was already late in the day, returned home and having fallen ill and having learnt that registration of such document was not necessary. made over the same to the legatees providing for bequeathing of properties in favour of the Banitia Middle English School represented by the then Secretary and Shri Jateswar Mahadeb through Sebayat Marfatdar. The third legatee Shri Ganesh Jew Thakur had been represented through the Sebayat Marfatdars (defendant Nos. 1 and 2 ). This suit had been contested by the appellants. They had claimed that they belonged to the same family as that of the testator and were entitled to succeed to his properties in the absence of other heirs. According to them, the Will was a forged document manufactured by the scribe and the attesting witnesses with the help of some villagers and Jujesthi, suffering as he was from dropsy for about four months prior to his death, was not in proper health and fit state of mind to execute any Will.
( 3 ) ON these pleadings, issues were framed and the parties went to trial. Reliance was placed by both the sides on oral and documentary evidence. On a consideration thereof, the learned District Judge decreed the suit.
( 4 ) MR. R. C. Mohanty, the learned counsel for the appellants, has challenged the findings recorded by the learned District Judge as unfounded and has contended that the evidence would establish the case of the contesting defendants. An application has been made in this Court under O. 41, R. 27 of the Code of Civil Procedure (for short 'the Code') for reception of additional evidence viz. , a registered deed of sale said to have been executed by Jujesti in favour of Uddhab Charan Barik in 1963, to show that the signatures appearing in the Will (Ext. 1) were not his signatures as would be seen on a comparison of the signatures appearing in ext. 1 and the sale deed. The prayer for reception of additional evidence has been opposed on behalf of the respondent Nos. 1 and 2. It has been contended by Mr. Mohanty for them that the application is not to be accepted in view of the provisions of O. 41, R. 27 of the Code. It has been submitted on their behalf that the findings recorded by the learned District Judge are well-founded and Ext. 1 had duly been executed and attested by the testator and was free from any suspicious features.
( 5 ) COMING first to the application under O. 41, R. 27 of the Code, it has been strenuously urged by the learned counsel for the respondents that the registered sale deed purporting to contain the signature of late Jujesti Panda, the testator, which is sought to be introduced as additional evidence, obviously for a comparison of the signatures of the testator, cannot be accepted in evidence as the testator's signatures at some places have been erased and at other places, left obscure and also for the reason that the application does not satisfy the tests laid down for acceptance thereof at the appellate stage. After a close look at the document, we have no hesitation to express that there have been suspicious features and erasures as regards the signatures of Jujesti Panda (the testator in Ext. 1) in the sale deed in question and such a document, if admitted in evidence, would serve no
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