ANANDANANDA DASH Vs. KUNTALA KUMARI DASH

JUDGEMENT

(1.) The defendant no. 1 in O.S. No. 1 of 2005 has filed this appeal under Section 299 of the Indian Succession Act, 1925 (for short 'the Act') assailing the judgment dated 6.5.2008 passed by the learned Civil Judge (Senior Division), 1st Court, Cuttack allowing an application under Sections 276 and 278 of the Act and thereby granting probate of the Will dated 14.6.1985 executed by one Gunanidhi Das in favour of the plaintiff (respondent no. 1 herein).

(2.) The plaintiff filed an application under Sections 276 and 278 of the Act (O.S. No. 1 of 2005) stating, inter alia, that her father, namely, Gunanidhi Dash, had four daughters and two sons. The genealogy of the family given hereunder particulars the relationship and status of the parties to this case. GENEALOGY Gunanidhi Dash Sabitri Devi Kuntala Anadananda Pramodini Prasanna Sujanananda Pratima Prahva Kumari (son) (daughter) (daughter) (son) (widow wife) (daughter) (daughter) (D.1) (D.2) (D.3) (sister in law) (plaintiff) Shyamalani Suvendu Shymalendu (son) (son) By virtue of the RSD No. 2917 dated 11.6.1949, her father Gunanidhi Das purchased the case land appertaining to Sabik Khata No. 1261, Plot No. 2956 corresponding to Hal Settlement Khata No. 1268 Plot No. 1914 to an extent of Ac. 0.045 decimals situated at Sagadiasahi, Ranihat (Panasahi), Dist. Cuttack (for short 'the case land') from one Madan Mallik and others. At that point of time, said Gunanidhi Dash along with his family was staying at the Government quarters in the campus of S.C.B. Medical College and Hospital, Cuttack. In the year, 1959, he constructed a Katcha house over the same. In the same year, the plaintiff was also given in marriage with one Ananda Chandra Dash, who was a Government servant. Due to the poor financial condition, said Gunanidhi could not give proper dowry to the plaintiff at the time of her marriage. Hence, he voluntarily gifted and dedeicated the suit land to the plaintiff on the marriage altar before sacred fire and the plaintiff accepted the same. Subsequently, said Gunanidhi Das delivered the possession of the suit property along with relevant documents to the plaintiff and since then, the plaintiff along with her husband were in physical possession of the same. The plaintiff and her husband also developed the suit land by incurring considerable expenses and resided there with their family members. Since 1966 the plaintiff and her family members were in exclusive physical possession of the suit property on payment of rent, holding tax and electricity dues etc. Though said Gunanidhi Das was working in the S.C.B. Medical College and Hospital, Cuttack, but it was very difficult on his part to maintain the entire family for which the husband of the plaintiff and herself helped him in various ways by providing financial and physical assistance. They also helped Gunanidhi for solemnization of marriage of her (plaintiff's) brothers and sisters. The brothers of the plaintiff were staying in their respective workplaces and her sisters were staying in their respective in -laws house. Thus, the plaintiff and her husband were taking care of their parents. As there was no document in support of the gift of the suit property in favour of the plaintiff, the plaintiff and her husband requested said Gunanidhi to execute a Will in their favour and accordingly, Gunanidhi executed the Will in question in favour of the plaintiff in presence of the witnesses on 14.6.1985, which was his last Will. As per the terms and conditions of the Will, the plaintiff would be the exclusive owner of the suit property after the death of the wife (Sabitri Devi) of the testator, namely, Gunanidhi. Gunanidhi died on 10.6.1986 and Sabitri Devi died on 21.8.1983 at her native village Malabiharpur. One of the daughters of Gunanidhi, namely, Prativa and daughter -in -law, namely, Pratima filed a suit claiming right, title and interest over the suit property and tried to evict the plaintiff and her family members therefrom for which the plaintiff filed the present case for the aforesaid relief.

(3.) The defendant nos. 1 to 3 filed their objection refuting the contentions made in the probate petition. They contended that the case was not maintainable and the plaintiff had no locus standi to pray for probate of the alleged Will. The probate case was also barred by limitation. The alleged Will was a fabricated document and Gunanidhi had never executed any Will much less in favour of the plaintiff. They further contended that while staying in the Government quarters, said Gunanidhi Dash had constructed the house over the suit land in two phases. The first phase was completed in the year, 1952 when Gunanidhi was residing in a rented house at Nuapatna, Mangalabag with his family members and the rest part of the house was completed in the year, 1954. After its completion, a portion of the suit house was rented out. Gunanidhi was serving as a 'steward' in the S.C.B. Medical College and Hospital, Cuttack and was getting a handsome salary. The husband of the plaintiff belonged to a poor Brahmin family having scanty landed property. Thus, the plaintiff was presented sufficient ornaments and household articles as well as cash at the time of her marriage. The story of the gift of the schedule property by Gunanidhi to the plaintiff on the marriage altar was a myth. When the husband of the plaintiff was transferred to the Board of Revenue, Cuttack, he could not afford to stay in a rented house because of his poor financial condition for which Gunanidhi allowed the plaintiff and her husband to stay in a portion of the house having tin roof, when the tiled roof house was given on rent by Gunanidhi. The marriage of children of said Gunanidhi Das was performed out of his own income and income of his eldest son, who was serving as an Engineer under the State Government. The second son of late Gunanidhi, namely, Sujanananda Das was serving in O.S.E.B. since 1972. He had also income from the business taken up by him. Thus, Gunanidhi was financially sound all through out of his life. The father -in -law of the plaintiff died in a helpless condition as the husband of the plaintiff did not take care of him. As on 14.6.1985, Gunanidhi was a psycatric patient and was also suffering from rheumatism of both knees and hands and was unable to take a walk or strain of any manner without help. He was almost bed ridden and not a condition to identify a person. He was also suffering from mental depression due to madness and physical pain and was dependant on others even for wearing his own clothes and taking of food. In the year, 1982, Gunanidhi had a leg injury and was brought to Cuttack from Dhenkanal by his sons. At that time, settlement operation was going on. Since the plaintiff and her husband, namely, Ananda Chandra Dash, were staying at Cuttack, he (Ananda) was given all the documents of the suit property and some blank white papers with signatures of Gunanidhi for the purpose of looking after the settlement operation. Taking advantage of such situation, the husband of the plaintiff manufactured a forged Will. Sabitri Devi, the widow of late Gunanidhi was all through residing at her native village Malabiharpur. Thus, there was no occasion on the part of the plaintiff and her husband to take care of her. The second son of late Gunanidhi, namely, Sujanananda had a premature death for which his widow, namely, Pratima was given appointment under Rehabilitation Assistance Scheme. She stayed in a portion of the suit house. The defendant nos. 1 to 3 also made several other allegations against the plaintiff and her husband and prayed for dismissal of the case. The defendant nos. 4 to 8 filed their written statement/show cause separately denying the averments made in the probate petition. They also took a similar stand as that of the stand taken by defendant nos. 1 to 3 in their written statement and prayed for dismissal of the case.