BICHITRANANDA MISHRA Vs. ACHYUTANANDA MISHRA AND ORS.

JUDGEMENT

(1.) The judgment dated 15th January, 2009 passed by the learned Civil Judge (Senior Division), 2nd Court, Cuttack in OS No. 1 of 2006 granting an application under Sec. 276 of the Indian Succession Act, 1925 (for short, 'the Act') is under challenge in this appeal.

(2.) Originally, the respondents herein filed Probate Misc. Case No. 5 of 1999 before the District Judge, Cuttack. The same was subsequently transferred to the Court of learned Civil Judge (S.D.), 2nd Court Cuttack vide order dated 24.01.2006 of learned District Judge, Cuttack and renumbered as Intest Case No. 2 of 2006. On hearing learned counsel for the parties, learned Civil Judge converted the same to O.S. No. 1 of 2006 vide his order dated 07.12.2006.

(3.) The pleadings of application under Sec. 276 of the Act (O.S. No. 1 of 2006) in a nutshell discloses that one Laxmidhar Mishra was the common ancestor of the parties, who died leaving behind three sons, namely, Sitanath, Somanath and Srinibas. Somanath died in the year 1967 leaving behind his three sons, namely, Achuyananda (plaintiff/respondent No. 1), Bichitrananda (defendant No. 1/appellant) and Sachidananda (defendant No. 2/respondent No. 2) as well as three daughters, namely, Srimati, Hemalata and Charulata. Sitanath died issueless in the year 1972 leaving behind his widow -Saradamani. It is further contended that in the year, 1962, there was an amicable partition between the three sons of Laxmidhara Mishra in which each branch got 1/3rd share in the ancestral property. After the death of Sitanath, Saradamani being the sole survivor -in -interest was in possession over the share allotted to her husband in the family partition. The plaintiff/respondent No. 1 was looking after said Saradamani after the death of Sitanath. Thus, out of love and affection, Saradamani executed registered Will on 18.07.1995 in favour of the plaintiff -respondent No. 1. On 19.05.1997, Saradamani died. Thus, said Achyutananda filed an application for grant of probate of the Will.