Sabita Barik @ Bariko & Another vs Narasingha Barik @ Bariko &
2024 Latest Caselaw 323 Ori

Orissa High Court

Sabita Barik @ Bariko & Another vs Narasingha Barik @ Bariko & on 8 January, 2024

Author: D. Dash

Bench: D. Dash

           IN THE HIGH COURT OF ORISSA AT CUTTACK

                          R.S.A. NO.140 OF 2022
    In the matter of an Appeal under Section 100 of the Code of Civil
    Procedure, 1908 assailing the judgment and decree dated 26th March
    2022 & 7th April 2022 respectively passed by the learned District
    Judge, Gajapati, Paralakhemundi in R.F.A. No.04 of 2017 confirming
    the judgment and decree dated 08.02.2017 and 15.02.2017
    respectively passed by the learned Senior Civil Judge,
    Paralakhemundi in Civil Suit No.40 of 2015.
                                  ----

Sabita Barik @ Bariko & Another .... Appellants

-versus-

         Narasingha Barik @ Bariko &            ....         Respondents
         Others

             Appeared in this case by Hybrid Arrangement
                        (Virtual/Physical Mode):

================================================= For Appellant - Mr. P.K. Mishra, Advocate.

               For Respondent -        -------------------------
    CORAM:
    MR. JUSTICE D. DASH
    Date of Hearing: 20.12.2023     :: Date of Judgment: 08.01.2024

D.Dash,J. The Appellants, by filing this Appeal under Section-100 of the

Code of Civil Procedure, 1908 (for short, 'the Code'), have assailed the

judgment and decree dated 26th March 2022 and 7th April 2022 passed

by the learned District Judge, Gajapati in R.F.A. No.04 of 2017.

The Respondent Nos.1 and 2 with their mother, Basanti had

filed the Civil Suit No.40 of 2015 in the Court of Senior Civil Judge,

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Paralakhemundi arraigning the Appellants as the Defendant Nos.2

and 3. The suit was for declaration of their right, title, interest and

possession over the suit land with consequential relief of permanent

injunction. The suit was decreed. Therefore, these Appellants being

the aggrieved Defendant Nos.2 and 3 had carried Appeal under

Section-96 of the Code. That Appeal has also been dismissed. Hence,

the present Second Appeal.

2. For the sake of convenience, in order to avoid confusion and

bring in clarity, the parties hereinafter have been referred to, as they

have been arraigned in the Trial Court.

3. The Plaintiff's case is that Radhika Nayak is the recorded owner

of the property described under item nos.1 and 2 of the schedule of the

plaint. Simadri Nayak is the husband of Plaintiff No.1 and father of

Plaintiff Nos.2 & 3. Radhika is the sister of Simadri. Husband of

Radhika expired few years after her marriage and therefore, she was

staying in the house of her brother-Simadri with the Plaintiffs. The suit

properties are the self-acquired Stridhan property of Radhika. Plaintiff

Nos.2 and 3 had been taking care of Radhika as their mother and

Radhika was also treating them as their sons. Plaintiff Nos. 2 and 3

were looking after the cultivation of suit schedule land under item no.2

and also making renovation of the house standing under suit schedule

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land at item no.2. Radhika while staying with the Plaintiffs, out of love

and affection voluntarily executed a Will on 07.11.2012 bequeathing

suit schedule property and other properties in favour of the Plaintiffs.

She handed over the Will to the Plaintiffs subsequent to the execution

of the Will. Radhika died on 19.12.2012, the Plaintiffs performed the

obsequies upon death of Radhika. So, the Plaintiffs claim that they are

the absolute owners in possession of the suit property by virtue of the

Will executed by Radhika.

Defendant No.1 is the son of another brother of Radhika namely,

Satya. The Defendant No.2 is the wife of Defendant No.1 and

Defendant No.3 is the widow of the other brother of Radhika. It is

stated that by the Plaintiffs that the Defendants have nothing to do with

the property of Radhika. Since on 29.07.2015, the Defendants openly

gave out that they would forcibly occupy the properties under item

nos.1 and 2 of the schedule, so the Plaintiffs were compelled to file the

suit.

4. The Defendant Nos.2 and 3 in their written statement, while

admitting the relationship between the parties as pleaded by the

Plaintiffs also admitted that the suit properties originally belonged to

Radhika. They however, attacked the Will dated 07.11.2012 said to

have been executed by Radhika in favour of the Plaintiffs in staying it

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to be false and fabricated. It is their case that husband of the Radhika

was a rich man had made renunciated of the world by deserting

Radhika for more than 30 years, when Radhika was young. There was

nobody to show any sympathy towards Radhika. The Defendants claim

that Radhika came to them who are related to her from the side of her

father through her brother Satya and she stayed in the house of the

Defendant till her death. The properties of Radhika are in possession

and cultivation of Defendant No.1. It is stated that Plaintiff No.2 had

developed a spirit and became enemy of Radhika for which Radhika

desired to execute a Will bequeathing all her properties in favour of

defendant No.2. Finally, the Will was written as per the instruction of

Radhika, who executed the same on 30.11.2012 bequeathing all her

properties in faovur of the Defendant No.2. After the death of Radhika,

when Plaintiff No.2 came to know about the Will in favour of the

Defendant No.2, he created mischief and prepared one Willnama dated

07.11.2012 in his favour. It is said that Radhika had absolutely no

knowledge about the said Will. The Plaintiffs are occupying residential

house standing over the suit schedule property with the permission of

the Defendant Nos.1 and 2. These Defendants attacked the Will

standing in favour of the Plaintiffs to be false and fabricated.

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5. On the above rival pleadings, the Trial Court framed as many as

nine (9) issues. Taking up issue nos. 1 and 3 which concern with the

competing claim of right, title, interest and right to possess the suit

land as has been advanced by the Plaintiffs on one hand and the

Defendants on the other based on the Will dated 07.11.2012 and

30.11.2012 respectively; upon examination of the evidence and their

evaluation in the backdrop of the settled position of law has answered

those in favour of the case/ claim of the Plaintiffs. This has practically

led to the final result in the suit which ended in granting the decree to

the Plaintiffs as prayed for.

The First Appellate Court being moved by the aggrieved

Defendant Nos.2 and 3, the finding of the Trial Court upon

appreciation of evidence at its level have been confirmed. Hence, the

present Second Appeal is at the instance of the Defendant Nos.2 and 3

who are under the sufferance from the judgments and decrees passed

by both the Courts below.

6. Mr. P.K. Mishra, learned Counsel for the Appellants submitted

that although the finding of the Courts below are concurrent in

negating the Will dated 30.11.2012 and upholding the Will dated

07.11.2012, the same is based on perverse appreciation of evidence on

record. He submitted that the Will in favour of the Defendants being a

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later one, the Courts below with the available evidence on record ought

to have held the same to have not been duly proved by the Plaintiffs

leading evidence as to its execution by Radhika and attestation. In view

of above, he contended that the Courts below ought to have held that

the Will dated 30.11.2012 being the last will of Radhika is to prevail

over the Will dated 07.11.2012 even though it's for a moment, it is said

to have been proved by establishing its execution and attestation. He,

therefore, urged for admission of this Appeal to answer the above as

the substantial questions of law.

7. Keeping in view the submissions made, I have carefully read the

judgments passed by the Courts below. I have also gone through the

plaint and written statement filed by the parties as well as the evidence,

both oral and documentary, let in by them.

8. In the case at hand, the Plaintiffs when assert their claim of

having the right, title and possession over the suit property deriving the

same under a Will dated 07.11.2012 executed by Radhika who is the

admitted owner in possession; the Defendants claim their right, title,

interest and possession over the suit land under another Will dated

30.11.2012 said to have executed by that Radhika bequeathing the

properties in their favour. Admittedly Radhika died on 19.12.2012.

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The Courts below have concurrently found the Plaintiffs to have

proved the execution of the Will dated 07.11.2012 (Ext.1) as

mandatorily required under section-68 of the Evidence Act, 1872 read

with section 63(c) of the Indian Succession Act, 1925; whereas the

Courts below have come to hold that the Defendants have failed to

prove the Will dated 30.11.2012 as required under section 68 of the

Evidence Act read with section-63(c) of the Indian Succession Act.

9. In view of the concurrent findings in order to address the

submission of the learned Counsel for the Appellant (Defendants); let's

first proceed to examine the evidence as to the proof of execution and

attestation of the Will Ext.A standing in favour of the Defendants. It be

stated here that in the event finding on that score is given in favour of

the Defendants, the concurrent finding in favour of the Will Ext.1

would have no independent existence and is thus to surrender

accordingly.

10. It is the case of the Defendant that Radhika was staying with

them till her death. The Will is dated 30.11.2012, when Radhika died

on 19.12.2012. Out of two attesting witnesses of the Will, Ext.A, one

has been examined by the Defendant as D.W.1. His evidence is that the

Will was scribed by Mr. A.K. Pattnaik, Advocate, Parlakhemundi and

it was scribed as per the desire of Radhika and to her dictation. His

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evidence is that the Will being scribed, Radhika put her LTI and there

after he and the other witness Kuni signed which was followed by the

signature of the scribe of the Will Mr. A.K. Pattnaik. According to

him, the Will was executed in the Verandah of the Tahasil Office

whereas the pleading is that it was in the house of Advocate, A.K.

Patnaik. His evidence do not reveal that Radhika, the testatrix was

present. His evidence is that the Will was executed on the verandah of

the Tahasil Office and only four persons had gone there. His further

evidence is that he, Kuni, Sabita and Advocate were those four. But

then nothing is stated about the presence of Radhika, the Testatrix at

that time. It is his further evidence that other witness, Kuni had not

brought the stamp paper and she put the signatures on the revers of

those stamp papers, where on the Will was scribed on the stamp paper

in manuscript form. He has not able to name the parents of Radhika so

also her husband. When D.W.1 has been projected as attesting witness,

the said Testatrix was not present at the time of execution of the Will,

Ext.A. This is enough to rule against the said Will, Ext.A. When

D.W.1 stated that the Will was written in manuscript form, the Will,

Ext.A being glanced since the Will is found to be a typed one, the

version of D.W.1 is found to be false. D.W.1 when states that Kuni had

purchased the stamp paper, stamp used for the Will, Ext.A are seen to

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have been purchased by Sabita Behera of village Garabandha, who is

none other than Defendant No.2. Most important, under the

circumstance, the deficiency on the part of the Defendants is the non-

examination of Mr. A.K. Pattnaik, who according to the evidence of

D.W.1 had scribed the Will, Ext.A. At this stage, when the attention is

turned to the evidence of D.W.2, it is seen that he presents completely

a different picture when he says that the Will was executed in his

presence before the Notary Public, Mr. K.N. Panda and said Notary

Public Mr. K.N. Panda had scribed the Will as per the version of

Radhika. The D.W.2 is none other than the son of the witness to the

Will namely, Kuni Pradhan. D.w.2 has again stated that Will was

scribed in village Garabandha and it was in the house of Defendant

No.2, the Notary Public, D.W.3 has stated that Advocate Mr. Pattnaik

scribed the will and read over and explained the will to Radhika an she

endorsed signature. He again states that the factum of execution of the

will was entered in the Notarial Register which has however not been

produced and proved. The evidence of D.Ws.4, 5, 6 and 7 being gone

through by the Courts below in view of the evidence already discussed,

the Courts below appear to have very rightly negated the case/claim of

the Defendants as regards the bequeathing of the properties by Radhika

by that Will. Thus, when Ext.A which is the triumph card of the

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Defendants is found to have not been duly proved so as to take effect;

in the absence of any such perversity being noticed while appreciating

the evidence of the Plaintiffs in respective of the Will, Ext.1 standing

in their favour and its execution and attestation as mandated under

section-68 of the Evidence Act and section-63(c) of the Indian

Succession Act, the judgments and decrees passed by the Courts below

firmly stand on the ground.

For all the aforesaid submission of the learned Counsel for the

Appellants (Defendant Nos.2 & 3) cannot be countenanced with to say

that there arises any substantial question of law for being answered,

meriting admission of this Appeal.

11. In the result, the Appeal stands dismissed. However, there shall

be no order as to cost.

(D. Dash), Judge.

Narayan