DHARAM RAJ TIWARI Vs. BADRI PRASAD TIWARI

JUDGEMENT

(1.) Mr. Tapan Kumar Dutta, learned counsel for the appellant, assailed the judgment and decree dated 13th July, 1999 passed by the Learned Additional District and Sessions Judge, 2nd Court, Howrah in LAO No. 6 of 1995. The prayer for grant of letters of administration to the plaintiff, Dharam Raj Tiwari, was declined by the Learned Judge. Mr. Dutta had contended that the plaintiff/appellant had duly proved the execution of the Will, a registered one, by examining the available attesting witnesses. There being no allegation that the testatrix lacked testamentary capacity. According to him, the Will was duly proved through the evidences adduced before the Court.

(2.) 2. Mr. Banerjee, learned counsel for the defendant/respondent, on the other hand, pointed out that the learned Court had rightly found that the plaintiff had failed to establish the valid execution of the Will. He had further contended that the absence of the testamentary capacity of the testatrix was very much raised. In case of a Will, it is the propounder who is to prove the Will. In this case the propounder has failed to do so.

(3.) 3. Both the learned counsel had taken the Court through the materials on record to substantiate their respective cases. Mr. Dutta had relied upon the decisions in Charan Singh and Anr. Vs. Balwant Singh and Ors., AIR 1975 (P and H) 179 ; Shashi Kumar Banerjee and Ors. Vs. Subodh Kumar Banerjee, AIR 1964 Supreme Court 529 ; Madhukar D. Shendre Vs. Tarabai Aba Shedage, 2002 (1) SCC 85 : 2002 (1) Indian Civil Cases (SC) 573 ; S. Sundaresa Pai and Ors. Vs. Sumangala T. Pai (Mrs.) and Anr., 2002 (1) SCC 630 ; Brij Nath Chaoudhary Vs. Dilip Kumar and Ors., 2001 (9) SCC 316 , E. Madhavi Pallikkaramma and Anr. Vs. K.V. Prabhakaran Nair and Ors., 2001 (9) SCC 729.