The central legal point established in the judgment is the importance of establishing the execution of a will and the soundness of the testator's mind in property disputes.

JUDGMENT :

A.K. Rath, J.

This appeal is by the plaintiff.

2. Plaintiff-appellant instituted the suit for declaration of right, title and interest over ‘C’ and ‘D’ schedule land or in the alternative partition of ‘A’ schedule land. The case of the plaintiff was that Ramchandra, the common ancestor of the parties, died in the year 1943. He had three sons, namely, Baneswar, Mukteswar and Dhaneswar. Baneswar died in the year 1945 leaving behind him one son, Narayan, defendant, as his sole successor. Mukteswar died in the year 1965 leaving behind him son, Dasarath, the plaintiff, as his successor. Dhaneswar died issueless. During life time of Ramchandra, ‘A’ schedule property was partitioned into ‘B’, ‘C’ and ‘D’ schedule properties amongst his three sons, namely, Baneswar, Mukteswar and Dhaneswar. ‘B’ schedule property fell to the share of Baneswar. After his death, the defendant was in possession of the same. ‘C’ schedule property fell to the share of Mukteswar. After his death, the plaintiff was in possession of the same. ‘D’ schedule property fell to the share of Dhaneswar. He executed a will in favour of the plaintiff. Dhaneswar died on 19.11.88. It was further pleaded that he was in possession over ‘C’ and ‘D’ schedule property. In major settlement, the land was recorded jointly in the names of plaintiff, defendant and Dhaneswar. In the year 1985, he approached the defendant for mutation of the lands. But the defendant turned a deaf ear. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra.

4. The defendant entered contest and filed a written statement denying the assertions made in the plaint. The case of the defendant was that schedule ‘A’ property was partitioned amongst Baneswar, Mukteswar and Dhaneswar, but subsequently they remained joint property. The plaintiff never stayed at the village. He had not taken care of Dhaneswar. Dhaneswar used to live jointly. The entire property is liable to be partitioned into two equal shares. The willnama had not been executed by Dhaneswar.

5. On the interse pleadings of the parties, learned trial court struck six issues. Parties led evidence, both oral and documentary, to substantiate their cases. Learned trial court came to hold that there was previous partition. Dhaneswar executed a will on 5.6.88 in favour of the plaintiff. Since there was earlier partition, the question of allotment of 2/3rd share to the plaintiff does not arise. Held so, it decreed the suit. The unsuccessful defendant filed appeal before the learned District Judge, Sambalpur which was subsequently transferred to the court of the learned Additional District Judge, Sambalpur and renumbered as T.A. No.28/13 of 1991-93. Learned lower appellate court concurred with the findings of the learned trial court and held that there was partition of the suit properties by metes and bounds between the three brothers, Baneswar, Mukteswar and Dhaneswar. The plaintiff kept everything secret and come forward with a prayer in respect of ‘C’ schedule land or 1/3rd interest in ‘A’ schedule land which would suggest that the facts incorporated by way of amendment were not correct. During pendency of the suit, Dhaneswar died without filing written statement. The plaintiff could manage to manufacture the will, Ext.1, and incorporate this by way of amendment. Dhaneswar was issueless. His wife pre-decreased him since 1980. ‘D’ schedule land might be in possession of the plaintiff or defendant. No prayer has been made in respect of ‘D’ schedule land. Held so, it divided ‘D’ schedule land between plaintiff and defendant in equal shares and allowed the appeal in part.

6. The second appeal was admitted on the following substantial question of law.

“Whether a right can be claimed on the basis of will when the testator is alive.”

7. Heard Dr. Sujata Dash, learned counsel for the appellant and Mr. B.K. Swain, learned counsel on behalf of Mr. N.C. Pati, learned counsel for the respondent.

8. Dr. Dash, learned counsel for th