SARADA CHARAN MISRA Vs. PRAFULLA

JUDGEMENT

(1.) The plaintiff in O. S. No. 3 of 1971 of the Court of the District Judge, Cuttack is the appellant in this appeal. The plaintiff-appellant prayed for grant of letters of Administration in respect of an unregistered will dated 21-1-1968 said to have been executed by his paternal uncle Basudeb Misra (hereinafter referred to as 'testator'). The learned District Judge on a consideration of the evidence on record came to hold that the will (Ex. 1) was not executed and attested on the date, time and place and in the manner as alleged by the plaintiff. Some suspicious circumstances surrounding the will having not been explained by the plaintiff, the learned Court below ultimately held that the will is not genuine. Consequently, the prayer of the plaintiff for grant of letters of Administration was refused by the learned Court.

(2.) The plaintiffs case is that one Gopal Charan Misra had two sons namely Banchhanidhi and Basudeb. Banchhanidhi has got two sons and five daughters. Plaintiff is one of the sons and one Urmila is one of the daughters of Banchhanidhi. The first wife of Basudeb having died he married the defendant Prafullita Misra for the second time about 22 years prior to his death. As he had no issue through any of his two wives he adopted Urmila as a daughter since her childhood. According to the plaintiff Basudeb had immense of love and affection for the plaintiff and used to treat him as his own son. The plaintiff also reciprocated the feelings of Basudeb and used to respect him as his father. In the year 1968 Basudeb, suffered from severe anemia and was removed to the S.C.B. Medical College Hospital, Cuttack and was admitted to the 5th Medical Ward on 11-1-68. His ailment was diagnosed to be Hypoprotemia and anemia and the disease aggravated in spite of the best available medical treatment in the hospital. Ultimately Basudeb breathed his last on 24-1-68 at about 5.15 P. M. in the hospital. The plaintiff alleged that prior to his death he had executed a will on 21-1-1968 bequeathing Ac. 1.25 decimals of land to his widow and the rest to the plaintiff. By virtue of this will Ac. 3.61 decimals and 17 links of land as described in the schedule attached to the petition for grant of letters of Administration, is likely to come to the hands of the plaintiff. The will provides that the plaintiff should bear the expenses of education and marriage of Urmila, the adopted daughter of Basudeb. According to the plaintiff the will was duly and validly executed by the testator while he was in a sound disposing state of mind, and was attested as required under law.

(3.) The defendant filed her written statement denying the plaint allegations and contended that the will in question is a manufactured and fictitious document and that the signature and thumb impression of the testator appearing on the 'will' have been forged. She denied the adoption of Urmila. According to her the testator was not in a fit state of health and mind on the alleged date of execution of the will. It was alleged that the condition of the testator became serious from day to day and towards the last 10 days of his life Basudeb lost the sense of understanding things and was not in a sound state of mind to understand and take any decision about the execution of the alleged will.