DINENDRA KUMAR BOSE Vs. TAPAN KUMAR BOSE

JUDGEMENT

(1.) -This Appeal is directed against a Judgment dated 13th May, 1998 passed by the learned single Judge of this Court whereby the application for grant of Probate of a Will filed by the Appellant was dismissed. Brief facts leading to the filing of the appeal are that one Nirmal Nalini Dassi who had been residing at No. 35A, Dr. Rajendra Road, Calcutta-20 made a Will on 11th November, 1983 and a Deed of Codicil. The said Nirmal Nalini Dassi bequeathed all her immovable property to Dwijendra Kumar Basu and Dipundra Kumar Basu in equal shares and declared that they both will become the owners of all her property in absolute right. Nirmal Nalini Dassi claimed to be the sole owner of the immovable property being House at No. 35/C, Dr. Rajendra Road, Calcutta. This property is at the centre of controversy between the parties. After the death of Nirmal Nalini Dassi on or about 28th May 1986, Dinendra Kumar Bose claiming to be the sole executor under the aforesaid Will dated 11th November, 1983 filed an application for taking out probate in respect of the said Will. In this proceedings the Respondents filed Caveat supported by the Affidavit of Tapan Kumar Bose in which inter alia it was alleged that Nirmal Nalini Dassi did not have the title to the property in question and she could not make Will in respect thereto and therefore the probate proceedings be dismissed and the Court should refuse to grant any probate in respect of the applicant Dinendra Kumar Bose. The reason advanced in the Caveat and the Affidavit was that Nirmal Nalini Dassi did not have any title to the property since she was not the owner of the property at all inasmuch as the property was given to her by way of a limited ownership during her life time as per the Will executed by her husband Upendra Nath Bose on 17th June, 1924. It was alleged by the Respondents that on 17th June, 1924 Upendra Nath Bose, the husband of Nirmal Nalini Dassi by appointing her as the executrix given to her the said property for a limited purpose, meaning thereby only during her life time and that after her life the property would devolve upon the nephews of Upendra Nath Bose. The relevant part of the Will of Upendra Nath Bose on which reliance was placed by the respondents reads as under :

(2.) The following observations made by the trial Judge led to the dismissal of the application for probate :

(3.) Two questions emerge and arise for consideration in this appeal. One as to whether in Proceedings for grant of probate it is open to the trial Judge to go into the question of title of the testatrix, and secondly did the testatrix in the present case have the title to the property in question.