SRIKANTA MONDAL Vs. SRIKANTA MONDAL & ORS.

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 24.9.1988 passed in original suit No. 2 of 1984 by the Additional District Judge, 3rd Court at Alipore in the district of 24-Parganas(s). By the impugned judgment, the learned Court below granted probate of a registered Will dated 12.12.1975 executed by Sint. Durga Mondal.

(2.) In short, the case of the respondent No. 1 plaintiff is that Durga Mondal who was a Hindu governed by Daya Bhaga School of Hindu Law died on 26.5.1980 at her residence at village Chairi, P.O. Nepal Gunge, P.O. Bishnupur in the district of 24-Parganas (now in the district of South 24-Parganas), leaving a registered Will dated 12.12.1975 as her last Will. It is further alleged that the said Will was duly executed by the testatrix on 12.12.1975 and it was presented for registration by the testatrix herself. The plaintiff brought the suit for granting probate, as the executor named in the said Will. The probate application was contested by defendant No. 6, Srikanta Mondal and defendant No. 4 Mihir Mondal. While the defendant No. 6 challenged that the Will was not a genuine document, contending, inter alia, that Durga Mondal was suffering from various kinds of ailments and had not testamentary capacity. That apart, she had already divested herself of all her properties before the execution of the Will in question by executing a registered deed of gift in respect of the properties. The defendant No. 4 Mihir Mondal on the other hand contested the proceeding by alleging that the Will in question was not executed by the said Durga Mondal in exercise of her independent and free volition and the document in question was forged one created with the help of so-called attesting witnesses and other persons. The defendant was closely related with Durga Mondal and her husband late Kinuram Mondal as he was the sister's son of Kinuram Mondal. Durga Mondal and her husband had no issue and Kinuram gifted away his properties in favour of the defendant by a registered deed of gift on 12.4.1966. The suit being T.S. 39/67 was filed by Durga Mondal and one Ganesh Chandra Mondal for setting aside the deed executed by Kinuram Mondal in favour of the defendant and the suit was dismissed on contest in the trial Court. The first appellate Court also dismissed the appeal. Therefore, the said Durga Mondal had no subsisting interest in the properties left by her husband and she had no right to execute the Will in question.

(3.) In the aforesaid background, the learned Judge of the Court below raised certain issues including the question whether testatrix had testamentary capacity on the date of the execution of the Will and whether the Will was duly attested by the witnesses. The learned trial Court on consideration of evidence on record and the other relevant facts and circumstances came to a clear fmding that the Will in question was properly executed by the executrix Durga Mondal and at that time she had testamentary capacity. Such Court further held that the Will in question was duly attested by the witnesses and on this finding came to a further finding that the plaintiff/respondent was entitled to get the probate of the Will and accordingly the order as indicated above was passed.