SRIMATI BEWA Vs. KASINATH CHANDRA BEHERA

JUDGEMENT

(1.) THIS is an appeal by the defendants under Chapter VII!, Rule 2 of the Orissa High Court Rules from the judgment of a learned single Judge of this Court.

(2.) THE plaintiff - respondent; applied for grant of Letters of Administration in respect of a registered Will dated 29 -1 -1973 executed by one Arjuna Chandra Behera claiming himself to be his adopted son in the Court of the District Judge, Puri. The application was contested by the appellants on various grounds, inter alia, that the Will was neither genuine nor properly executed and attested. The trial Court decreed the suit and ordered for issuing Letters of Administration along with a copy of the Will in favour of the plaintiff. The appellants challenged the judgment of the trial Court in this Court in First Appeal, but the learned single Judge dismissed their appeal and accordingly, they have filed the present appeal against that judgment.

(3.) LET us now proceed to examine the relevant materials on the record to answer the question. In order to prove the Will (Ext. 1) the plaintiff examined Madhusudan Das, an Advocate's Clerk, as P. W. 1. 'According to his evidence the Will had been duly executed and attested by two attestors', and one Lakhman Kumar Sena Nayak was the scribe, and the testator had signed the Will after having gone through the same. This witness in his evidence did not speak a word regardfng the attestation by the other attesting witness, namely, Babaji Sahu. All that is said regarding the other attesting witness is that he had gone to the Court along with the testator and that the Will was scribed and attested in the Muharrirkhana (Advocate Clerks* association) and nothing else. The trial Court as also the learned single Judge, on a reference to the statement of P. W. 1 made in his examination -in -chief that the document had been duly executed and attested by two witnesses, have come to the conclusion that due attestation and execution of the Will had been proved. The finding and the conclusion of the learned single judge have been assailed by Mr. Sutaf with great vehemence. According . to his submission, the evidence falls short of the legal requirements and, therefore, the finding in regard to the due attestation and valid execution of the Will was not legal. The learned -counsel On: behaf of the plaintiff -respondent, on the other hand, contended that the evidence -of P. W. 1 in chef to the effect the will was duly executed and accepted in the absence of any cross -examination on the point, must be accepted as sacrosanct and in full discharge of the burden of proof as required in law on the part of the profounder of Will.