ASHOK DASGUPTA Vs. DWIJENDRA LAL DASGUPTA

JUDGEMENT

(1.) This appeal is directed against the judgment and decree passed by the learned Additional District Judge, 5th Court, Alipore on 14-8-80 in Original Suit No. 7 of 1977 whereby he decreed the suit and directed grant of probate with a copy of the will annexed.

(2.) The short question that arises for determination in this appeal is that whether the testatrix Priyambada Dasgupta revoked her will dated 15-7-65 Ext. 3 by means of a registered deed of revocation dated 2-4-66 Ext. H. If this question is answered in the affirmative then the appeal will succeed and grant of probate as has been made by the learned Addl. District Judge will be set aside, because there cannot be any grant of probate in respect of a will which had already been revoked by the testator or the testatrix. If the question is answered in the negative then there can be no manner of doubt that this appeal will fail as no other contention has been raised in this appeal on behalf of the appellants.

(3.) Priyambada Dasgupta the mother of the defendant No. 1 Niradendu Dasgupta and defendant No. 2 Amal Dasgupta and the grand-mother of the plaintiff and other defendants namely, Ajoy Dasgupta and Sanjoy Dasgupta made a will on 15-7-65 Ext. 3. By this will she appears to have given all her properties to the propounder and his two brothers namely, Ajoy Dasgupta and Sanjoy Dasgupta to the exclusion of her sons, daughter and other grand-sons. She also appears to have revoked the said will on 2-4-66 by a registered deed of revocation Ext. H and she died on 20-8-68. About eight years after the death of the testatrix i.e. on 18-11-76 the present plaintiff filed the instant petition for grant of probate on the ground that the will in question was her last will under which he was appointed the sole executor. Defendant Amal Dasgupta who is the appellant here resisted grant of probate contending that the will in question was not duly executed by the testatrix and legally attested by the witnesses, that the will in question had already been revoked by the testatrix by means of a registered deed of revocation dated 2-4-66 and that proceeding was not maintainable in absence of special citation upon the other legal heirs of the testatrix. The learned trial Judge by his judgment appealed against appears to have rejected all the contentions raised on behalf of the defendant Amal Dasgupta and found that the will in question was duly executed by the testatrix and was legally attested by the attesting witness and that deed of revocation was not executed by the testatrix Priyambada Dasgupta. With these findings, he decreed the suit and directed grant of probate with a copy of will annexed.