CHINTAMONI BARIK Vs. CHARI BEWA

JUDGEMENT

(1.) Plaintiffs are the appellants. The suit arises out of an application filed under Section 276 of the Indian Succession Act. The plaintiffs' case is that Late Krushna Das executed a Will (Ex. 1) on July 27, 1949 in favour of the plaintiffs. From the date of execution of the document the plaintiffs continued in possession of the disputed property. Krushna Das died on August 2, 1949. Chari Bewa (the defendant) is the sister of Krushna Das and filed Title Suit No. 178 of 1950 in the Court of the Munsif of Bhadrak for declaration of title and confirmation of possession or in the alternative for recovery of possession challenging the Will as frau- lent. That suit was ultimately decreed in second appeal No. 379 of 1952 and the High Court found that the plff's, who were defendants in that suit, failed to prove that the alleged document was bona fide and voluntary transaction executed by Krushna Das after fully understanding the nature and character of the transaction. The High Court, however, held that the document was Will and it not having been probated in a competent court was not admissible in evidence under Section 213 of the Indian Succession Act. After the High Court decision this suit has been filed under Section 276 of the Indian Succession Act.

(2.) The defendant contested the suit alleging that Krushna Das was suffering from leprosy before his death and two years before his death he was unable to walk and he was not in proper senses. The plaintiffs were looking after him and prevailed upon Krushna Das to go for treatement outside the village. On that pretext they took him to Calcutta without the knowledge of the defendant. The alleged Will is not valid and operative in law.

(3.) Though evidence was taken in the case the learned District Judge dismissed the plaintiffs' suit holding that the suit is not maintainable in view of the judgment of the High Court in Second appeal No. 379 of 1952 and he did not record any finding on other points.