Precise compliance with statutory execution and proof requirements for Wills is necessary, especially when involving Pardanashin individuals; the burden of proof lies on those asserting the validity amidst suspicious circumstances.

Judgment :

Sashikanta Mishra, J.

1. This is an appeal by the Defendants against a reversing judgment dated 15.9.2011 followed by decree passed by the learned District Judge, Mayurbhanj at Baripada in R.F.A No.53/2010 whereby, the judgment dtd.28.8.2010 followed by decree passed by learned Civil Judge (Sr.Division), Baripada in C.S. No.167/2003 was reversed.

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

3. The plaintiffs filed the suit for declaration of their right, title and interest and recovery of possession over the suit land. Their case is that they and Defendant No.1 are the sons and Defendant No.2 is the daughter of Late Purna Ch. Pati. Purna Ch. Pati died in the year 1978. The Plaintiff No.2-Sarbeswar Pati filed T.S. No.53/1981 before the learned Sub-Judge, Baripada for partition of the joint family properties, which was preliminarily decreed on compromise on 28.3.1993. The mother of the parties was one of the defendants. On application of the parties for final decree, a Civil Court Commissioner was appointed who measured and divided the joint family properties among the co-sharers. In the said partition, the widow of Purna Chandra Pati namely, Laxmi Dibya got more than 7 acres of land as described under Lot No.I to VIII of the B schedule attached to the plaint. The Plaintiffs and their mother filed Execution Case No.3/2002 for executing the final decree. Laxmi Dibya died on 27.5.2002 whereupon the Defendant No.1 filed Misc. Case No.11/2003 under Section 47 of C.P.C. with prayer for not allotting the share of Laxmi Dibya in favour of the remaining decree holders. The executing court excluded the suit land from the final decree. It is the further case of the plaintiffs that 10 years prior to her death, Laxmi Dibya was residing with the plaintiffs who were taking care of her. As such, she executed a Will on 6.10.1997 bequeathing her lands to them. The Will was prepared under her instruction and executed when she was in sound state of health and mind in presence of witnesses. On such facts, the plaintiffs filed the suit. The defendant No.1 contested the suit by filing a written statement disputing the plaint averments. It is his specific case that Laxmi Dibya had never executed the Will consciously. She was not in a sound disposing state of mind, was illiterate and a Pardanashin Brahmin household lady. She was also suffering from different ailments. The plaintiffs, by practicing fraud by way of undue influence and misrepresentation managed to obtain the so-called Will without the knowledge and consent of Laxmi Dibya. The attesting witnesses to the Will are also the hench- men of the plaintiffs. The Plaintiffs and Defendant No.2 and the witnesses have connived to create the Will in question. That apart, Laxmi Dibya has not taken any independent advice for executing the Will.

4. Defendant No.2, being the sister of the parties filed a written statement entirely supporting the case of the plaintiff.

5. Basing on the rival pleadings, the trial court framed the following issues for determination;

(1) Whether the suit is maintainable?

(2) Whether there was any cause of action for the plaintiffs to bring the suit?

(3) Whether the plaintiffs have right, title and interest over the suit land by virtue of the Will executed by Laxmi Dibya ?

(4) Whether the defendants are entitled for recovery of possession of the suit land?

(5) To what other relief, if any, the plaintiffs are entitled to?

6. After analyzing the oral and documentary evide