The burden of proof for the validity of a will lies with the propounder, and suspicious circumstances must be explained to establish the genuineness of the will.

JUDGMENT :

1. This appeal has been filed against the judgment and decree passed by the learned Addl. District Judge, Sundargarh in RFA No. 68/28/29 of 2006-10-13 confirming the judgment and decree passed by the learned Civil Judge (Sr.Divn.), Sundargarh in Civil Suit No. 84 of 2002.

The respondent as the plaintiff had filed the above noted suit for partition with the declaration that he is having half interest over the property described in schedule-A of the Will executed by Indumati Pasayat on 29.8.2002 (Ext.1). The suit having been decreed, these appellants as the unsuccessful defendants had carried the first appeal under Section 96 of the Code of Civil Procedure wherein they have lost. So now this appeal has been filed under Section 100 of the Code.

2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court.

3. The plaintiff’s case is that the suit property originally belonged to Gulabati Pasayat, Indumati Pasayat and Amruta Pasayat and it stood recorded as such in their name in the record of right of the year 1977. The property had come to their hands from one Dhaneswar Pasayat, they being his widow and two daughters. Both the daughters namely, Indumati and Amruta got married and after the death of their mother, they became the owners of the suit land and remained in joint possession. Indumati’s husband Ghanashyam died. So the plaintiff came forward to assist Indumati who then grew old and also the members of the family did not come forward to take her care. So being satisfied and highly pleased with the plaintiff, Indumati executed a Will bequeathing her half interest over the property. This Will is said to have been executed out of her free will and volition when she was physically and mentally fit and alert. Indumati continued to live with the plaintiff till her death. Therefore, the plaintiff claims that after Indumati, he became the owner and got the right over the property in so far as the half interest of Indumati is concerned. There being no partition of the same between the two sisters earlier, she filed the suit for a preliminary decree to that effect after the defendants refused to do the same.

4. The defendants coming forward to contest the suit, in their written statement while admitting the ownership of the property as it was originally resting and then to have been finally succeeded by Indumati and Amruta, projected a specific case that after death of Ghanashyam, Indumati being denied of the basic necessities of life was completely neglected by her in-laws family. So she came and stayed with the defendants and they took all her care. It is next stated that being pleased with such generous conduct of the defendants, Indumati executed a Will on 15.5.2000 which was registered bequeathing her half interest over the property in favour of defendant no. 2.

It may be stated here that the defendant no. 1 is the sister of the Indumati and defendant no.2 is Indumati’s sister’s son, the son of defendant no. 1. It is stated that such factum of execution of the Will was always within the knowledge of the plaintiff. It is alleged that in order to grab the land, the plaintiff has got the Will dated 29.8.2000 created in her favour. This Will in favour of the plaintiff as asserted in the plaint to have never been executed by Indumati out of her free will and volition as also not in accordance with law and that there was no valid attestation. Thus, it is stated that the Will is not even worth the paper written on. So it is stated that the plaintiff has no right over the property.

Defendant no. 2 in her separate written statement which almost run in the same line as that of defendant no. 1 has pleaded further describing certain facts that Indumati was issueless and being denied with basic necessity of her life after death of her husband, she and her son the defendant no. 2 brought her to their village and took care of he