DILIP KUMAR MOHAPATRA Vs. SUBHADRA

JUDGEMENT

(1.) THIS is an appeal directed against the judgment of the learned Subordinate judge at Balasore refusing to grant probate of a will (Exhibit 1) dated 7-3-1964 by one Maguni Charan Mohapatra in favour of the appellant.

(2.) ONE Gangadhar Mohapatra had two sons --Prafulla and Maguni. Prafulla is said to have been unheard of for many years. The appellant claims that Prafulla was serving in the Postal Department and was murdered while the respondents contend that he has remained unheard of for several vears. His wife Satyabhama and a son and a daughter -- Manoranjan and Bhaktilata respectively are the three respondents. It was claimed that Gangadhar and his two sons had separated. Maguni's wife developed illicit love with some other person and ultimately deserted maguni and married that person. Maguni developed chronic stomach ailment, led a miserable life, was ill-treated by the members of the family including his father and out of disgust and disappointment he went out of the famlly having fallen out with Gangadhar. He came to live with the appellant and his father. He was well looked after with devotion and care and given medical treatment throughout the period of his illness. Out of satisfaction and gratitude and having no other person in the world to care for and benefit, Maguni executed a registered will dated 7-31964 in respect of his properties -- both movable and immovable -- in favour of the appellant when he was in sound state of health and mind. Maguni is said to have died on 18-6-1964 Gangadhar also died 8 days thereafter. It was alleged that Maguni possessed Ka, Kha and Ga Schedule immovable properties and the gha schedule movable properties at the time of his death and in terms of the will the appellant was entitled to those properties. The appellant claimed that he performed the last rites of the testator according to Hindu custom. The application for Probate was made on 22-3-1965.

(3.) UPON citation being made, the respondents entered caveat. They filed a joint written statement denying the allegation of partition and contended that the family has been continuing joint. Due execution and attestation of the will by Maguni was denied. It was contended that the testator was addicted to drink and was wandering here and there as a vagabond when ultimately the father of the appellant, a designing man, brought Maguni to live with him keeping an eye on the share of Maguni in his joint family assets. The appellant's father found Maguni a weak and debilitated person always suffering from various kinds of ailments. When maguni thus came under his complete clutches and was not in a position to obtain any independent legal advice, the will along with a power of attorney to manage his properties was planned to be taken from Maguni. From the beginning of 1964 maguni's ailment increased and gradually he took more and more of drink. That provided the opportunity to the appellant's father to fulfil his design and at that point of time, actually the documents were taken. The scribe and the attestors were the henchmen of the appellant's father and Maguni without knowing what he was doing --because he had no capacity to understand the contents of the documents or the consequences of his own acts--signed the documents. The will is thus the outcome of fraud and undue influence and cannot be probated.