IMPORTANT POINT
Will required to be proved as like any other documents.

D. Dash, J.—The unsuccessful defendant being aggrieved by the judgment and decree passed by the learned Civil Judge (Sr. Division), Chatrapur in Title Suit No. 76 of 1997 filed by the respondent as the plaintiff, has filed this appeal challenging those.

2. For the sake of convenience, in order to avoid confusion and to bring in clarity, the parties hereinafter have been referred to as they have been arraigned in the courts below.

3. Plaintiff is the daughter of P. Raghunath Senapaty and P. Chandrama Senapaty. They had four sons and three daughters. The plaintiff is the youngest of all, whereas the defendant is the eldest. The plaintiff remained as a spinster. Plaintiff’s father expired on 22.02.1982 leaving behind his widow and children as aforesaid as his legal heirs and successors. The widow mother of the parties died on 30.03.1995. It is stated that after death of the father as none of the brothers came forward to take care of the plaintiff, finally she had to live under the mercy of her third brother for some days. But thereafter, he had to live separately being so asked/told by said brother. It is stated that mother of the plaintiff during her lifetime had executed a Will on 07.07.1994 which was registered before the Sub-Registrar, Chatrapur and by that Will, she had bequeathed the house property which is now the subject matter of the suit in favour of the plaintiff. It is said that the mother of the plaintiff i.e. testatrix of the said Will was the owner of the said house property which she had purchased from her husband way back in the year 1954 by a registered sale-deed. It is the case of the plaintiff that the defendant was allowed to stay in the suit house with his family taking a sympathetic view after he met with an accident. But when plaintiff’s brother who had permitted her to stay in the house told the plaintiff to live separately, she requested the defendant to provide her shelter as also maintain her and that was in the year 1996. But it was not accepted. It is said that on 08.09.1996 being advised by some local gentries, the defendant had agreed to the said proposal, but ultimately he did not put it into action. The plaintiff thereafter made all such attempts in order to get the suit house vacated by the defendant. Those having gone in vain, finally the suit has been filed. The plaintiff’s exclusive claim over the suit house is based on the Will said to have been executed by her mother bequeathing the said property in her favour. The plaintiff states that said Will was executed by her mother when she was hale and hearty and also in a sound state of mind and disposition. The Will is said to be the voluntary act of her mother and to have also been duly registered.

4. The defendant challenging the title of the mother in respect of the suit house alleging that the said sale transaction of the year 1954 between his father and mother was a sham one, also stated that said property was shown to have been transferred by his father simply to avoid its division in future amongst his father and his other brothers as it was the joint family property, though on record, it simply stood in the name of the father of the parties. The sale is also said to have never been acted upon, neither the mother of the parties was ever in possession, of the suit house exclusively nor managed the same on her own. Therefore, it is stated that the mother of the parties having no title over the suit house, the Will even if accepted to have been duly and properly executed in accordance with law, the plaintiff has not derived any title with respect to the said suit house.

The Will is also attacked to be a forged one and to have not also been duly executed by the testatrix, when he was not in a sound state of mind in realizing the consequences of such execution. These are basically the challenges to the substratum of the case of the plaintiff.

5. The trial court on such rival pleadings framed eight issues and has rightly taken up issue no. 3