ANATH NATH DAS Vs. BIJALI BALA MONDAL

JUDGEMENT

(1.) Upendra Nath Das was a resident of Paharpore Road, Garden Reach, 24 Parganas, On 11th Jan., 1970 Upendra died. He had married twice. His first wife had predeceased Upendra. Three sons and one daughter begotten by his first wife and also his second wife, Sarala Bala, four sons and two daughters, who were issues of his second marriage were alive at the time of the death of Upendra, Sarala Bala Dasi, the widow of Upendra, had filed an application in the court of the learned District Judge, 12th Court, 24 Parganas for granting probate to the last will and testament of Upendra dt. 3rd Jan., 1970. The testator by the said alleged will had purportedly provided that after his death his second wife, Sarala Bala, Panchugopal, Rabindra and Sibnath, his three sons by his second wife, would get his property at Z-143, Paharpore Road, Garden Reach in equal shares and in absolute right. Sarala Bala was enjoined to perform the marriages of the two minor daughters out of the income of the property and, if necessary, by selling some properties. His surviving sons and daughters by his first wife were not given any legacy under the will of Upendra. Sarala Bala was appointed as the executrix of the will of Upendra.

(2.) The present appellants who were sons of Upendra by his first wife, had entered caveat, inter alia, contending that the will in question was a forged one and that at the material time Upendra had no testamentary capacity and that the will was not duly executed and attested. Thereupon, the court below followed the procedure of contentious cases.

(3.) The learned Additional District Judge, 11th Court, Alipore upon consideration of the evidence has decreed the suit in favour of the plaintiff and has directed that Sarala Bala be granted probate to the last will of Upendra Nath Das. Being aggrieved thereby, the appellants have filed the present appeal.