SATYA CHARAN PAL Vs. ASUTOSH PAL

JUDGEMENT

(1.) This is an appeal by the propounder and is directed against a judgment and decree made by Mr. B.M.Roy Choudhury, learned District Judge, Berhampore, dated 27-4-1951, refusing an application for the grant of probate under Section 237, Succession Act, 1925.

(2.) The testator Nandalal Pal executed a Will on 30-9-1913. It was registered by him at Domjur Registration Office. At the time the testator used to live ordinarily at Dhulian in the district of Murshidabad where he practised as a Medical Practitioner and also carried on business. The Will was executed at Dakhinpara Jhapardaha in the district of Howrah which was the ancestral residence of the plaintiff. At the date of the Will the testator had his wife Sreemati Lakshmimoni Dasi living who ordinarily resided at Dabhinpara Jhapardaha. He had five sons, Ashutosh, the objector, Abinash, Surendra, Debendra and Satyacharan, the propounded of the five sons of the testator, Debendra predeceased him. Abinash and Surendra survived the testator but died before the present application for probate. It may be pointed out that at the date of the Will the testator Nandalal had two businesses in medicine, one of which was located in Dhulian and was looked after by himself and Debendra. Another shop dealing in medicines was located at Raghunathgunge which was looked after by Abinash and the propounder Satyacharan. The testator's properties in the district of Howrah were looked after by his son Surendra. While this was the state of the family, the testator executed the Will to which I have referred and registered it on the same date. The testator died on 17-6-1920, at Dhulian. No steps were taken to obtain probate of the Will till 17-8-1949, when the present application for probate was made. The application for probate was accompanied by a certified copy of the Will. The allegation in the application was that the original Will was in the custody of the objector and the propounder was not in a position to file the same. In the application it was stated that the propounder came to know about the Will some years ago. On the application being filed, an objection was raised by Ashutosh, the only surviving son of the testator. His objection was that the Will was not duly executed and attested, that the application for the grant of probate was barred by estoppel, waiver and acquiescence and that the Will, if any, was revoked by the testator. On these allegations certain issues were raised, namely, an issue as to the genuineness of the Will, and to its due execution and attestation. This issue was found in favour of the propounder. The finding of the learned Judge on this point has not been challenged in this appeal. There was also an issue as to estoppel, waiver and acquiescence. The learned District Judge found in favour of the propounder on this issue. This finding has also not been challenged in this appeal. The only other issue which arose in the case was whether the Will was revoked. The learned District Judge found in favour of the objector and was of the opinion that the Will was revoked. This finding has been seriously contested in this appeal, on behalf of the propounder.

(3.) Before I deal with this contention, it is necessary to set out the terms of the Will. The Will opens with a recital that the testator's eldest son Ashutosh (the objector) was well-off and that he had started a rival business in medicine and was practising as a Medical Practitioner at Dhulian where the testator himself practised and had his medicine shop. The Will then proceeds to state that Ashutosh will have no interest in any of his properties on his death. The testator bequeathes his entire properties to his four sons. Abinash, Surendra, Debendra and Satyacharan. The Will also contains a provision that the shop at Dhulian will be looked after by himself and his son Debendra, the shop at Raghunathgunge by his sons, Abinash and Satyacharan and the properties in the district of Howrah by Surendra. The Will then makes provision for the wife Lakshmimoni. The Will makes provision for her maintenance and states that she will be entitled to receive monies for the performance of religious ceremonies and in case of difficulty, the Will goes on to add, she will be entitled to the income of the properties in the district of Howrah. The Will makes provision for payment of Rs. 100/- on the occasion of the marriage of his grand-daughter. It also contains a provision that his daughter Sushila and Sushila's daughter will be brought to the family residence and such expenses will be borne by the estate. The Will concludes by appointing the four sons, Abinash, Debendra, Surendra and Satyacharan as executors.