The courts ruled that the failure to prove the valid execution and attestation of a Will invalidates claims of property based on it, emphasizing statutory requirements for witness testimony.

JUDGMENT :

SASHIKANTA MISHRA, J.

1. This is a Plaintiff’s appeal against a confirming judgment. The judgment dated 23.06.2005 followed by decree passed by the learned Additional District Judge (FTC), Chhatrapur in RFA No.14 of 2004 is impugned, whereby the judgment dated 02.04.2004 passed by learned Civil Judge (Senior Division), Chhatrapur in Title Suit No.13 of 2002 was confirmed. The suit, filed by the Plaintiff for declaration of his right, title and interest over the suit property and for delivery of possession by evicting the Defendants therefrom was dismissed by the trial Court and confirmed by the First Appellate Court.

2. For convenience, the parties are described as per their respective status in the trial Court.

3. The Plaintiff case, briefly stated is that the suit property originally belonged to one Parsuram Behera. The Plaintiff is his nephew being the son of his elder brother, late Bairagi Sethi. Although three brothers had separated during their lifetime, Parsuram, who had married Chandrama, had no issues. He had illicit relationship with Defendant No.2 and out of the said relationship, Defendant No.1 was born. Parsuram retired from government service in 1987 and his wife Chadrama died on 22.05.1994. During her lifetime, Parsuram purchased a vacant house site vide registered Sale Deed No. 3792/72 in her name out of her funds. After her death, Parsuram became its owner. He constructed a house with asbestos roof, divided into two portions. The suit property pertains to the northern portion of the said house. Both Parsuram and Chandrama were fond of the Plaintiff and had raised him from his childhood as their own child. The Plaintiff also resided with them at Berhampur and continued to stay with them even after retirement of Parsuram. He used to look after Parsuram and his wife and continued to stay there even after his marriage. Parsuram, therefore, out of his love and affection, executed a registered Will in his favour bequeathing the suit property on 27.08.1997. Parsuram bequeathed the adjacent southern portion of the house to Defendant No.1. He was in sound health and disposing mind and had executed the Will without being influenced by anyone. The Defendants never stayed in his house. The southern portion was let out to a tenant. The Defendants were residing elsewhere as Chadrama never allowed them to come to her house and Parsuram also did not keep any contact with them. After death of Chadrama in 1995, Parsuram brought Defendant No.1 to his house to cook food and to do other works. But, Defendant No.2 continued to stay elsewhere. Parsuram died on 23.04.2001. The Plaintiff performed his obsequies by spending money. After completion of the obsequies, the Plaintiff and his wife went to Berhampur leaving the suit property in charge of Defendant No.1. Taking advantage of their absence, Defendant No.2 came and stayed with her daughter in the suit house. The Plaintiff having come to know of the same asked the Defendants to vacate but when they refused to vacate and also to handover the papers relating to the suit house including the Will, the Plaintiff was constrained to file the suit.

4. Defendant Nos. 1 and 2 filed a joint written statement. They denied all the plaint averments. Their case was that Parsuram had married Chandrama, who died on 22.05.1994 without any issues. She was a blind lady and was depressed for which she requested Parsuram to have another marriage to continue the lineage. Parsuram therefore married Defendant No.2 according to customs and traditions. Since then, Defendant No.2 had been staying with the husband- Parsuram as his legally married wife. She also allowed Chandrama to stay with them. Parsuram had strained relations with his brother and family members including the Plaintiff. Defendant No.1 was born from out of the wedlock of Parusuram and Defendant No.2. After retirement of Parsuram, they shifted to the suit house. Parsuram died intestate on 23.04.2001 leaving behind the Defendants as his