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2018 DIGILAW 143 (ORI)

Dasarath Naik v. Narayan Naik

2018-02-01

A.K.RATH

body2018
JUDGMENT : A.K. Rath, J. This appeal is by the plaintiff. 2. Plaintiff-appellant instituted the suit for declaration of right, title and interest over ‘C’ and ‘D’ schedule land or in the alternative partition of ‘A’ schedule land. The case of the plaintiff was that Ramchandra, the common ancestor of the parties, died in the year 1943. He had three sons, namely, Baneswar, Mukteswar and Dhaneswar. Baneswar died in the year 1945 leaving behind him one son, Narayan, defendant, as his sole successor. Mukteswar died in the year 1965 leaving behind him son, Dasarath, the plaintiff, as his successor. Dhaneswar died issueless. During life time of Ramchandra, ‘A’ schedule property was partitioned into ‘B’, ‘C’ and ‘D’ schedule properties amongst his three sons, namely, Baneswar, Mukteswar and Dhaneswar. ‘B’ schedule property fell to the share of Baneswar. After his death, the defendant was in possession of the same. ‘C’ schedule property fell to the share of Mukteswar. After his death, the plaintiff was in possession of the same. ‘D’ schedule property fell to the share of Dhaneswar. He executed a will in favour of the plaintiff. Dhaneswar died on 19.11.88. It was further pleaded that he was in possession over ‘C’ and ‘D’ schedule property. In major settlement, the land was recorded jointly in the names of plaintiff, defendant and Dhaneswar. In the year 1985, he approached the defendant for mutation of the lands. But the defendant turned a deaf ear. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra. 4. The defendant entered contest and filed a written statement denying the assertions made in the plaint. The case of the defendant was that schedule ‘A’ property was partitioned amongst Baneswar, Mukteswar and Dhaneswar, but subsequently they remained joint property. The plaintiff never stayed at the village. He had not taken care of Dhaneswar. Dhaneswar used to live jointly. The entire property is liable to be partitioned into two equal shares. The willnama had not been executed by Dhaneswar. 5. On the interse pleadings of the parties, learned trial court struck six issues. Parties led evidence, both oral and documentary, to substantiate their cases. Learned trial court came to hold that there was previous partition. Dhaneswar executed a will on 5.6.88 in favour of the plaintiff. Since there was earlier partition, the question of allotment of 2/3rd share to the plaintiff does not arise. Parties led evidence, both oral and documentary, to substantiate their cases. Learned trial court came to hold that there was previous partition. Dhaneswar executed a will on 5.6.88 in favour of the plaintiff. Since there was earlier partition, the question of allotment of 2/3rd share to the plaintiff does not arise. Held so, it decreed the suit. The unsuccessful defendant filed appeal before the learned District Judge, Sambalpur which was subsequently transferred to the court of the learned Additional District Judge, Sambalpur and renumbered as T.A. No.28/13 of 1991-93. Learned lower appellate court concurred with the findings of the learned trial court and held that there was partition of the suit properties by metes and bounds between the three brothers, Baneswar, Mukteswar and Dhaneswar. The plaintiff kept everything secret and come forward with a prayer in respect of ‘C’ schedule land or 1/3rd interest in ‘A’ schedule land which would suggest that the facts incorporated by way of amendment were not correct. During pendency of the suit, Dhaneswar died without filing written statement. The plaintiff could manage to manufacture the will, Ext.1, and incorporate this by way of amendment. Dhaneswar was issueless. His wife pre-decreased him since 1980. ‘D’ schedule land might be in possession of the plaintiff or defendant. No prayer has been made in respect of ‘D’ schedule land. Held so, it divided ‘D’ schedule land between plaintiff and defendant in equal shares and allowed the appeal in part. 6. The second appeal was admitted on the following substantial question of law. “Whether a right can be claimed on the basis of will when the testator is alive.” 7. Heard Dr. Sujata Dash, learned counsel for the appellant and Mr. B.K. Swain, learned counsel on behalf of Mr. N.C. Pati, learned counsel for the respondent. 8. Dr. Dash, learned counsel for the appellant submitted that Dhaneswar had executed a will in favour of the plaintiff on 5.6.88. Plaintiff instituted the suit on 16.9.88. During pendecy of the suit, Dhaneswar died on 19.11.88. The plaint was amended on 7.5.89. There was no occasion for the plaintiff to incorporate the factum of execution of will, when Dhaneswar was alive. Learned trial court on vivid analysis of the evidence on record and pleadings came to hold that will had been executed by Dhaneswar in favour of the plaintiff. The plaint was amended on 7.5.89. There was no occasion for the plaintiff to incorporate the factum of execution of will, when Dhaneswar was alive. Learned trial court on vivid analysis of the evidence on record and pleadings came to hold that will had been executed by Dhaneswar in favour of the plaintiff. But then the learned lower appellate court had not rendered any finding with regard to the execution of will. Thus the judgment is vitiated. 9. Per contra, Mr. Swain, learned counsel for the respondent submitted that the execution of the will is shrouded with suspicion. There is no averment in the plaint that Dhaneswar had executed a will in favour of the plaintiff. After death of Dhaneswar, such a plea has been taken to grab the properties of Dhaneswar and to deprive the defendant from his share. The will has not been validly proved in accordance with Sec.68 of the Indian Evidence Act. The plaintiff has managed to manufacture the said document. 10. Both the courts concurrently held that there was previous partition of the suit properties. There is no perversity in the said findings. The dispute pertains to schedule ‘D’ property allotted to Dhaneswar only. The plaintiff asserts that Dhaneswar had executed a will on 5.6.1988. Thus there was no occasion to incorporate the said fact when Dhaneswar was alive. Dhaneswar died during pendency of the suit, i.e., on 19.11.1988. Thereafter the factum of execution of will was incorporated in the plaint on 7.5.89 by way of amendment. The order allowing the application for amendment of plaint has attained its finality. Learned trial court came to hold that Dhaneswar had executed a will in favour of the plaintiff. But then, learned lower appellate court did not delve into the same and disbelieve the execution of the will on untenable and unsupportable grounds. 11. A duty is cast upon the learned lower appellate court to come to a definite finding as to whether Dhaneswar was in a sound state of mind and had executed the will, Ext.1, in favour of the plaintiff. 12. In Ishwardeo Narain Singh vs. Sm. 11. A duty is cast upon the learned lower appellate court to come to a definite finding as to whether Dhaneswar was in a sound state of mind and had executed the will, Ext.1, in favour of the plaintiff. 12. In Ishwardeo Narain Singh vs. Sm. Kamta Devi and others, AIR 1954 SC 280 , the apex Court held that the Court of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of each execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. The substantial question of law has been answered accordingly. 13. In view of the discussions made in foregoing paragraph, the judgment of the learned lower appellate court is set aside. The matter is remitted back to the learned District Judge, Sambalpur. Learned appellate court shall render a finding with regard to the execution of will by Dhaneswar in favour of the plaintiff in respect of ‘D’ schedule property. In order to avoid further delay, parties shall appear before the learned District Judge, Sambalpur on 9th March, 2018 on which date he shall fix a date of hearing and dispose of the appeal within a period of three months thereafter.