PROBODH KUMAR CHAKRABORTY Vs. ARIJIT CHAKRABORTY

JUDGEMENT

(1.) This appeal being preferred by the defendant is directed against the judgment and decree dated 16th Sept., 1999 and 23rd Sept., 1999 respectively passed by the learned Additional District Judge, 1st Court, Howrah in Probate Suit No. 1 of 1998. The defendant has preferred the appeal being aggrieved by and dissatisfied with the judgment and decree by which the learned Court below allowed the prayer of the plaintiff respondent for grant of probate of the last Will and testament dated 18th Oct., 1985 made by testatrix Binapani Devi.

(2.) The respondent plaintiff filed the suit praying for grant of probate of the last Will and testament dated 18th Oct., 1985 made by deceased testatrix Binapani Devi contending that he was appointed sole executor in the said Will. It was the case of the plaintiff that the Will in question was the last Will made by Binapani Devi, since deceased and by that Will, she bequeathed her immovable property including cinema hall in favour of the beneficiaries. The Will in question was also duly registered on 18t1 Oct., 1985. It has been contended that Binapani Devi was physically fit and mentally sound at the time of execution of the Will and she executed the Will voluntarily without any coercion, undue influence and interference. It was contended by the plaintiff that no application for grant of probate of the said Will was filed in any other Court.

(3.) The suit was contested by defendant by filing written objection against the application for grant of probate. It is the case of the defendant objector that the petitioner is not entitled to get probate as he suppressed material facts and no notice was issued in favour of the objector. The testatrix Binapani Devi was her mother and he, being the eldest son used to look after for her food, clothing, medicine and other requirements which were needed for daily life. He further contended that her mother was confined by his youngest brother Narendra Chakraborty who died subsequently, and thereafter by his wife and son. While his mother was staying with them, they took advantage of the same and in collusion with their own men, they manufactured the impugned Will after the death of Narendra Chakraborty. His father late Bijonlal Chakraborty executed a Deed of Trust wherein his two sons and late Binapani Devi were made trustees and the said Deed of Trust was irrevocable. He further contended that his mother Binapani Devi instituted a suit being Title Suit No. 17 of 1969 against them challenging the trust and obtained one compromise decree which was illegal. He challenged the said illegal compromise decree by filing a subsequent Title Suit No. 71 of 1980 and the said suit is still pending. It is further contention of the objector that testatrix had no legal capacity to execute the Will in view of the Trust Deed dated 26.7.1961. It has further been contended that there were suspicious circumstances behind the execution of the Will and the propounder has failed to dispel or remove the suspicious circumstances.