MISS BISWAMOHINI NAIK AND Vs. JIBANANANDA NAIK,

JUDGEMENT

(1.) THIS is an appeal against the judgment and decree in Original Suit No. 37 of 1961 passed by the learned District Judge, Cuttack, decreeing the suit with costs. The suit arose out of an application by the Plaintiff Respondent No. 1 above named, under Section 278, Indian Secession Act for the grant of Letters of Administration annexing a copy of the will executed by late Joseph Naik, the father of the Plaintiff, with regard to his (Joseph Naik's) estate.

(2.) THE averments in the said application are mainly as follows: Joseph Naik, the father of the Plaintiff -Respondent No. 1, died at Cuttack on 23 -5 -1943 leaving the immoveable properties described in the schedule attached to the petition.

(3.) THE learned District Judge, on a the rough discussion of the evidence on record, the materials and the circumstances of the case, found that the Will executed by late Joseph Naik was in the custody of Biswamohini Naik, Appellant No. 1, that the Plaintiff -Respondent No. 1 never exercised any undue influence over the testator; that the said Will was a valid one and was the last will and testament of late Joseph Naik and he was in sound and disposing state of mind at the time of executing it. The Court however found that the Plaintiff -Respondent No. 1 Jibanananda Naik is not the sole legal heir of the deceased testator the rough he is a residuary legatee. He ultimately decreed the suit by holding that, the Plaintiff -Respondent No. 1 Jibanananda Naik is entitled to Letters of Administration with a copy of the Will annexed.