RADHARANI DEVI Vs. KADAMBINI DEVI

JUDGEMENT

(1.) This appeal is directed against the judgment and order of the learned Subordinate Judge, Khurda allowing the application made under Section 276 of the Indian Succession Act, 1925 (hereinafter referred to as 'the Act').

(2.) Relevant facts may be briefly stated. Late Lala Harekrushna Singh had two wives, namely, Radharani Devi and Kadambini Devi who are admittedly sisters, the former being elder to the latter. Appellants 2 to 8 are his sons through Radharani Devi who is appellant No. 1. Respondents 2 to 9 are also his sons and daughters through his second wife Kadambini who is respondent No. 1. Lala Harekrishna Singh expired on 25-1-1981. The respondents filed an application on 25-8-1986 under Section 276 of the Act for grant of letters of administration which came to be registered as T.M.S. No. 38 of 1987-II on the file of the Subordinate Judge, Khurda. Their case is that Lala Harekrishna Singh (hereinafter referred to as 'the testator') executed a will in their favour on 25-5-1976. It was the last will by which the testator had given Schedule 'A' properties to them subject to enjoying the same after his death. The testator executed the will while he was living with the respondents. He was fit both in mind and body and consciously out of his free will and without any inducement has made disposition of Schedule 'A' properties in their' favour. On the premises stated above, the respondents prayed for grant of letters of administration in respect of 'A' schedule properties left behind by the testator. The appellants contested the matter by filing objection on the grounds, inter alia, that the will was executed by the testator without understanding the contents contained therein. The will was not duly executed nor was it attested according to law. It was pleaded that the will was out-come of undue influence and coercion in as much as the testator was suffering from paralysis and physically disabled and due to old age and ailment, he had lost the power of understanding and the same was executed without his free will. It was also averred by the appellants that the properties given in the will are ancestral and joint family properties in which the appellants are co-parceners and as such, the properties in question were not exclusively owned and possessed by the testator and he had no exclusive right of its disposition.

(3.) The respondents in order to prove their case examined four witnesses and filed certain documents. The appellants in their turn also examined four witnesses and filed number of documents. On the basis of the evidence adduced in the case, the learned Subordinate Judge held that the Will Ext. 1 is a genuine document which was duly executed by the testator at the time when he had sound disposing state of mind and it was not made under any undue influence or coercion. Accordingly, the application made under S. 276 of the Act was allowed.