MOYNA BHATTACHARJEE Vs. ASHIM KUMAR BHATTACHARJEE

JUDGEMENT

(1.) Challenge in this appeal is to the judgement and decree passed by learned 4th Court, Additional District Judge, Alipore, granting probate of the Will of Dilip Kumar Bhattacharjee (since deceased) on 12/4/2003 in O.S. No. 19 of 2009. Ashim Kumar Bhattacharjee filed an application under Sec. 276 of Indian Succession Act for grant of probate of the last Will and testament of his father Dilip Kumar Bhattacharjee (herein after referred to as the 'testator') contending, inter alia, that testator Dilip Kumar Bhattacharjee during his life time made a Will which was executed and registered on 20/11/1992, whereby he bequeathed his properties upon his two sons Ashim Kumar Bhattacharjee, Biman Kumar Bhattacharjee and his daughter Soma Bhattacharjee, to the exclusion of his eldest son Deb Kumar Bhattacharjee, who died sometime in September, 2001. Smt. Moyna Bhattacharjee the widow of Deb Kumar Bhattacharjee, challenged the said testamentary disposition before the Court contending, inter alia, that the Will was not executed by Dilip Kumar Bhattacharjee on his free Will. Dilip Kumar Bhattacharjee during the life time of his first wife Krishna Bhattacharjee married Smt. Gouri Bhattacharjee. Ashim and Biman, two sons of Dilip Kumar Bhattacharjee used to put pressure upon him to make a Will in their favour otherwise they would boycott their father socially and would initiate criminal proceeding against him for bigamy. It is contended by the Caveator that Dilip Kumar Bhattacharjee was very affectionate towards her and she used to take care of her father-in-law whenever he stayed at 100 Rashbehari Avenue. Her father-in-law expressed her helpless condition before the Caveator after the death of her mother-in-law Krishna Bhattacharjee, who died on 9/4/1990. After her death Dilip Kumar Bhattacharjee started residing at Subhasgram and occasionally he used to come and stay at 100 Rashbehari Avenue. Since 2001, he permanently started residing at Subhasgram and he breathed his last at Peerless Hospital on 19/11/2006. It is contended further that husband of Caveator, Deb Kumar Bhattacharjee resisted the attempt of his brothers to let out ground and first floor of the house to Andhra Bank and earned their displeasure. Deb Kumar Bhattacharjee became ill in 1998 and died in September, 2001. Dilip Kumar Bhattacharjee had a license to run a ration shop, after his demise the license got lapsed and could not be re-issued due to non-co-operation of the surviving sons of Dilip Kumar Bhattacharjee. It is asserted that the Will so propounded is not a genuine document. It is a fraudulent one. Signature on the Will of the alleged testator is also not genuine. Dilip Kumar Bhattacharjee did not execute the Will knowing about its content. The alleged Will is manufactured one. The Caveator prayed for dismissal of the suit.

(2.) Learned Trial Court after considering the pleadings of the parties framed five issues and after considering evidence-on-record was pleased to answer all the issues in favour of the Propounder of the Will and granted probate of the Will of Dilip Kumar Bhattacharjee executed on 20/11/1992.

(3.) It is further adverted by Mr. Milan Chandra Bhattacharjee, learned Senior Advocate for the appellant that the purported Will Exhibit-1 appears to have been registered on 20/11/1991 and PW 1 Ashim Kumar Bhattacharjee stated that one year prior to the death of his father, his father told him and his other brother Biman Kumar Bhattacharjee about an envelope and instructed them to act accordingly "As per paper inside the envelope". Dilip Kumar Bhattacharjee owned three houses, one at 100 Rashbehari Avenue, second one at 98 Rashbehari and third one at Sonarpur. The testator did not disclose where he kept the envelope. The propounder filed the application before the learned District Delegate seeking probate of Will on 8/12/2006 within a month of death of his father. This is also a suspicious circumstance. There is no explanation wherefrom he found the envelope containing the paper particularly when it was not disclosed by his father.