The central legal point established in the judgment is the requirement for clear and satisfactory evidence to remove suspicion from the execution of a Will, as emphasized by the court.

JUDGMENT :

Shri K.R. Mohapatra, J. - The judgment dated 15th January, 2009 passed by the learned Civil Judge (Senior Division), 2nd Court, Cuttack in OS No.1 of 2006 granting an application under Section 276 of the Indian Succession Act, 1925 (for short, 'the Act') is under challenge in this appeal.

2. Originally, the respondents herein filed Probate Misc. Case No.5 of 1999 before the District Judge, Cuttack. The same was subsequently transferred to the Court of learned Civil Judge (S.D.), 2nd Court Cuttack vide order dated 24.01.2006 of learned District Judge, Cuttack and renumbered as Intest Case No.2 of 2006. On hearing learned counsel for the parties, learned Civil Judge converted the same to O.S. No.1 of 2006 vide his order dated 07.12.2006.

3. The pleadings of application under Section 276 of the Act (O.S. No.1 of 2006) in a nutshell discloses that one Laxmidhar Mishra was the common ancestor of the parties, who died leaving behind three sons, namely, Sitanath, Somanath and Srinibas. Somanath died in the year 1967 leaving behind his three sons, namely, Achuyananda (plaintiff/respondent No.1), Bichitrananda (defendant No.1/appellant) and Sachidananda (defendant No.2/respondent No.2) as well as three daughters, namely, Srimati, Hemalata and Charulata. Sitanath died issueless in the year 1972 leaving behind his widow-Saradamani. It is further contended that in the year, 1962, there was an amicable partition between the three sons of Laxmidhara Mishra in which each branch got ?rd share in the ancestral property. After the death of Sitanath, Saradamani being the sole survivor-in-interest was in possession over the share allotted to her husband in the family partition. The plaintiff/respondent No.1 was looking after said Saradamani after the death of Sitanath. Thus, out of love and affection, Saradamani executed registered Will on 18.07.1995 in favour of the plaintiff-respondent No.1. On 19.05.1997, Saradamani died. Thus, said Achyutananda filed an application for grant of probate of the Will.

The defendant No.1 (appellant) filed his written statement refuting the contentions raised in the probate petition. The defendant No.1 categorically stated in his written statement that the plaintiff had never looked after Saradamani after the death of Sitanath. He further claimed that Saradamani had never executed any Will in favour of the plaintiff. The Will, if any, is the outcome of fraud and the same was never executed out of free will and volition. By the time of execution of the alleged Will, Saradamani was not in a position of voluntary disposition. He further stated that he (the defendant No.1) was adopted by Sitanath and Saradamani and since the date of his adoption, he has been recognised as the son of Sitanath Mishra. After the death of Sitanath, he was looking after Saradamani till her death. Thus, there was no occasion on the part of the plaintiff to look after Saradamani, as alleged. The ancestral property of Achuyatananda was never partitioned between the brothers as alleged. It was also jointly recorded in the names of all the co-sharers in the consolidation proceeding. There was no severance of status between the parties. Thus, Saradamani could not have executed the alleged Will. The Will is shrouded by suspicion and there was no cause of action to file the petition for probate. Thus, he prayed for dismissal of the suit. Defendant No.2 (respondent No.2 herein) filed his separate written statement taking the plea akin to the written statement filed by defendant No.1. He also prayed for dismissal of the petition for probate.

4. Taking into consideration the rival contentions of parties, learned Civil Judge framed as many as five issues, which are as follows :-

(i) Is the suit maintainable?

(ii) If the plaintiff had any cause of action to file the petition?

(iii) If the Will deed dated 18-7-95 executed by Saradamani in favour of the plaintiff is genuine or if the same is out-come of fraud?

(iv) If the plaintiff is entitled