DINESH KUMAR @ DINESH PRASAD Vs. RAM JANAM SHARMA

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree dated 28.4.1989 passed by 2nd Additional District Judge, Jamshedpur in Title Suit No. 12/1986 -87 whereby he has refused to grant probate of the will and dismissed the suit.

(2.) THE appellant in the court below filed an application for grant of probate in respect of a will alleged to have been executed by late Kapildeo Prasad in his favour. Appellant's case is that late Kapildeo Prasad son of late Sarju Prasad was an employee of M/s. Telco Company Limited, Jamshedpur. He died issueless in Telco hospital on 23.9.1985. He had got a fixed deposit account and also saving account in Punjab National Bank, Bistupur. Appellant's further case is that late Kapildeo Prasadexecuted a will in his favour in respect ofthe entire amount lying in the fixed depositand the Savings Account.

(3.) THE appellant adduced evidence in order to prove the will. The respondent also examined witnesses in support of his case. After analyzing the entire evidence the court below came to the conclusion that the appellant failed to prove that the deceased executed the alleged will. Para 10 of the impugned order is worth to be quoted hereinbelow : 'With regard to the fact that at the relevant time Kapildeo Prasad was not in a position to understand the nature and effect of the document (will) is supported by the evidence of DW 5, Dr. P.N. Chatterjee who is the Senior Medical Officer in Telco Hospital, He has proved the original death certificate of the deceased Kapildeo Prasad which has been marked Ext. D (duplicate copy has been marked Ext. 6 on behalf of the plaintiff -applicant). The evidence of DW 5 further indicates that after perusing the death certificate he had opined thatthe deceased Kapildeo Prasad was a patient of Brain Haemorrhage and further opined in para 6 that usually in the case of brain haemorrhage the patient becomes unconscious. DW 5 is admittedly a disinterested and. independent witness and his opinion that in case of brain haemorrhage the patient becomes unconscious is very important being the opinion of an expert and unless the contrary is proved by cogent and expert evidence, his evidence cannot be discarded. But the plaintiff has failed to bring any expert evidence in this regard that even in case of brain haemorrhage the patient, i.e., Kapildeo Prasad was in a sound state of mind and therefore I hold that the plaintiff has completely failed to prove that at the relevant time when the alleged will was executed the deceased, Kapildeo Prasad was In a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his LTI to the document of his own free will.'