The main legal point established in the judgment is the interpretation of the Indian Succession Act, particularly Section 30 and Section 63, regarding the disposal of properties by a Hindu through a will and the attestation requirements for a valid will.

JUDGMENT :

A.S. Naidu, J. - The Defendants in Title Suit No. 15 of 1996 of the court of the then Additional Munsif, Athamalik, in this appeal filed u/s 100 of the Code of Civil Procedure, seek to assail the judgment and decree dated 18.8.1993 and 27.8.1993 respectively passed by the then Subordinate Judge, Angul in Title Appeal No. 2 of 1990, by which the said court partially modified the judgment and decree passed by the Addl. Munsif, Athamalik in Title Suit No. 15 of 1996.

2. By order dated 31.10.1994, this Second Appeal was admitted to examine the following question of law:

Whether the Courts below erred in accepting Ext. 1, the will executed by Jahar Biswal in favour of Raghunath in respect of specific item of the joint family property?

3. The facts of the case have been elaborately death with in both the judgments and as such, this Court refrains from reiterating the same, but then refers to only those facts, which would be very much essential for appreciating the inter se dispute.

4. Respondent No. 1 as the sole Plaintiff had filed the suit, inter alia, praying for a declaration of right, title and interest and confirmation of possession in respect of the properties morefully described in the suit schedule. Admittedly, Bisi Biswal was the common ancestor of the contesting parties. He had three sons, being Suramani, Ramachandra, and Jahar. Raghunath, the Plaintiff, is the son of Ramachandra. During the life time of Bisi, the ancestral properties were partitioned between the three sons and one share was kept by Bisi for his maintenance. After the death of Bisi in the year 1974, the said share was also partitioned between the three brothers. Jahar one of the sons filed a petition for mutation of the lands, which fell to his share and for separate recording. The same being objected to, Jahar had filed Title Suit No. 8 of 1984 in the court of Additional Munsif, Athamalik. The suit was decreed declaring 1/3rd share in favour of Jahar. Jahar was issueless. As such, Raghunath, the Plaintiff, being his brother's son, was staying with Jahar and was cultivating the lands and also was looking after Jahar. While the matter stood thus, on 26.4.1985, Jahar executed a registered will in respect of his exclusive share of properties described in Schedule 'A' of the plaint in favour of the Plaintiff. In consonance with the said will, Plaintiff put forth his claim over Schedule 'A' properties after the death of Jahar as exclusive owners. Defendants 1 to 3 interfered with the possession of the Plaintiff in the year 1986 and also disputed his title, consequently, the suit was filed.

5. In the written statement, Defendants took the plea that there was no amicable partition of the ancestral properties. The final decree proceeding in the earlier suit abated as Jahar died during pendency of the said proceeding. The execution of will by Jahar in favour of the Plaintiff was denied and it is averred that after the death of Jahar, all the Defendants have a share in the property.

The trial court on the basis of the pleadings, framed as many as five issues. In order to substantiate their case, the Plaintiff got examined three witnesses and exhibited the registered will executed in his favour by Jahar as Ext. 1. On behalf of the Defendants, only one witness was examined and no document was exhibited.

6. The trial court after vivid discussion of the evidence both oral and documentary, came to the conclusion that there was an earlier partition of the ancestral properties between Bisi and his sons and that after the death of Bisi, the properties which were allotted to his share was also partitioned amongst the three brothers. The trial court also referred to the judgment passed in Title Suit No. 8 of 1994 and held that Jahar was the absolute owner of 1/3rd share of properties, which were allotted to his share. The trial court further held that Jahar had executed and registered a will in favour of the Plaintiff and the said will was a valid one and on the strength