LATA BHOI Vs. DURGA PRASAD BHOI

JUDGEMENT

(1.) The plaintiffs in Title Suit No. 13 of 1995 before the Civil Judge, Senior Division, Padampur have filed this appeal against the concurrent findings of the Courts below dismissing their suit for declaration that the registered Will dated 2-3-1994 was void, illegal and inoperative.

(2.) One Jogindra Bhoi had two sons, namely, Gorachand, father of the defendant and Amrut. The appellants are the widow and daughter of late Amrut. It is, however, pleaded by the appellants that after the death of Amrut the defendant and his father ill-treated the plaintiffs though the father-in-law Jogindra and appellant No.1 had a strong liking for each other. Therefore, the appellants filed a suit for partition in T. S. No. 27 of 1991 claiming their legitimate share and it was decreed preliminarily and final decree application is pending. Jogindra, the grandfather of the defendant was seriously ill on account of his old age and bed-ridden. He lost his mental faculty. He died on 3-3-1994. An application has been filed by the defendant under Order 22, Rule 10, C. P. C. making averment, inter alia, that late Jogindra Bhoi had bequeathed his undivided share in his favour through a registered Will executed on 2-3-1994. It is alleged that the testator had neither any intention to bequeath any of his properties nor was in a state of sound disposition of mind before his death. Thus the Will on the basis of which the defendant has claimed title was on account of evil design to grab the properties of Jogindra.

(3.) The defendant filed written statement, inter alia, by stating that Jogindra had divided the properties into three shares and allotted two such shares to his two sons and kept one such share with him. After division, Amrut, husband of plaintiff No.1 stayed separately and later on he died. Therefore, the plaintiff did not intend to join with Jogindra after the death of Amrut. Thus, Jogindra had to spend his days miserably being uncared for by the plaintiffs. Thus the other son Gorachand having taken utmost care, Jogindra executed a Will in favour of the father of the defendant on 29-4-1991. But the plaintiff No. 1 became hostile after having come to know about such disposition and, therefore, filed a partition suit. The plaintiff No. 1 had also filed a criminal case against her father-in-law Jogindra alleging outraging her modesty. Hence the plaintiff No.1 and Jogindra were not looking eye to eye before his death. During his lifetime, Jogindra had never taken to any illness and he had a strong mental faculty and sound disposition of mind. But unfortunately, in the final decree the Court did not pay much importance on the Willnama executed by Jogindra. Thus he again executed a Will and duly registered in favour of the defendant. The Will was executed by Jogindra after having understood the contents and himself presented the Will for registration.