BISHNUPRIYA MOHAPATRA Vs. BATA KRUSHNA MOHAPATRA

JUDGEMENT

(1.) This is an appeal under Section 299 of the Indian Succession Act against an order of the Subordinate Judge, Puri, granting probate in respect of the Will executed on 5-10-1969 and directing issuance of Letter of Administration in favour of the applicant Batakrushna (respondent No. 1).

(2.) One Gangadhar had two sons Balamukunda and Gopinath. Batakrushna is the son of Balamukunda and claims to be the adopted son of Gopinath. Said Batakrushna filed application under Section 278 of the Indian Succession Act before the Subordinate Judge, Puri, alleging that Gopinath had executed a Will in his favour on 5-10-1979 when the applicant was a child and said Gopinath died on 10-7-1971. It was pleaded in the application that Gopinath executed the will in a sound state of disposition in presence of two attesting witnesses and attesting witnesses attested the same in presence of the testator and the scribe. The applicant was unaware of the execution of the aforesaid will till 1986 and the document had been kept in an almirah inside a room. On coming to know of the document, the application was filed under Section 278 of the Indian Succession Act.

(3.) The present appellants who are some of the defendants before the Subordinate Judge contested the proceeding, but other defendants did not contest. The contesting defendants denied the allegation of adoption by Gopinath. It was also further averred that the applicant has fraudulently manufactured the will to deprive the contesting defendants of their legitimate right. It was also pleaded that after the death of Gopinath, a Commissioner was appointed to make an inventory of the properties of the suit house, but the will was not found in the said inventory and obviously the same was manufactured at a later stage. It was further pleaded that Gopinath had two wives, Ratnamani and Bishnupriya and Bishnupriya's children are Ushamani, Aditya Kumar, Ambika Prasad and Abhaya Kumar, which has already been decided in O. S. No. 100 of 1976. In that civil suit, Batakrushna also pleaded to be the adopted son of Gopinath, but that was negatived. According to the contesting defendants, Gopinath having wives and children, there was no occasion for executing a will in favour of Batakrushna who is the brother's son of the executant and this Will has been manufactured after the death of Gopinath.