DHIRENDRA MOHAN OJHA (DEC.) AND SMRITIREKHA OJHA AND BIVA NANDY Vs. MUKTI OJHA (KUMAR), MALA OJHA (KUNDU) DIPTI OJHA, TRIPTI OJHA (ROY) BANANI OJHA (INDU)

JUDGEMENT

(1.) The temporary injunction petition filed at the instance of the caveatrixs, inter alia, contends that the caveatrixs, being the daughters of Late Dhirendra Mohan Ojha, the testator, are being denied entry in their paternal home by the propounder of the alleged Will. The learned Counsel has pointed out that until the probate is granted in favour of the propounder of the Will by a Competent Court of Law, he cannot resist/ prevent caveatrixs from entering into the house of their deceased father. In this regard the learned Counsel has drawn the attention of this Court to the provisions as laid down in Sec. 213 of Indian Succession Act, 1925. Specific paras of the impugned Will were referred to by the learned Counsel of the caveatrixs to show the inconsistencies and incongruities persisted therein. According to the learned Advocate of the caveatrixs, these go to show that the testator was not allowed to act freely or to act according to his conscience. The learned Counsel has also referred to a decision reported in AIR 1962 SC 1471 in support of his contention.

(2.) The learned Counsel of the plaintiff, on the other hand, submits that as the testator was in good health at the time of making the Will, there is no question of making false averments in the impugned Will. The learned Counsel has also submitted that a Will can be challenged only if there are suspicious circumstances or incomplete attestation from the side of attesting witnesses. He has referred to the decisions reported in AIR 1959 SC 443, (1996) 9 SCC 324, (2021) 11 SCC 209. The learned Counsel has also drawn the attention of this court to the provisions laid down in Sec. 63, 67, 68 and 84 of Indian Succession Act, 1925. The learned Counsel has categorically stated that in Sec. 84 of the Indian Succession Act, 1925, it is provided that where a clause is susceptible of two meanings, according to one of which it has some effect, and according to the other of which it can have none, the former shall be preferred. In his opinion, if there are contradictory statements in the impugned Will, then the statement which is former, shall prevail over the latter statement. The learned Counsel has also pointed out if the temporary injunction petition filed by the caveatrixs is allowed then the plaintiff should also be allowed to visit the other properties of his deceased father which are being occupied by some of his sisters.

(3.) After going through the judicial decisions, provisions of law as well as after taking into consideration the oral submission of the Counsels of the parties, I can say at this stage that the instant probate proceeding is pending and does not reach to its finality. Until the propunder proves that the Will was executed by the testator after understanding the consequences thereof and he was in sound state of disposing mind at the time of execution of the alleged Will, the plaintiff or, even the caveatrixs, cannot claim exclusive rights over the respective properties which are, by virtue of the contents of the Will, allegedly settled by the testator in their favour. In other words, the stage has not become ripen to allow the respective impugned properties to be used exclusively by the respective parties of the instant probate proceeding during its pendency.