BILLESWAR KUMAR Vs. NIRUPAMA DEBI

JUDGEMENT

(1.) This appeal is preferred by the plaintiff appellant against a judgment and decree of the Trial Court refusing grant of probate briefly in the circumstances as follows:

(2.) The appellant made an application in the Court of the District Judge, Malda for grant of probate of a Will of one Rajes-wari Debya. The case set up by the appellant briefly was that Rajeswari Debya died on or about 29th December, 1956, at the residence of her daughter Sushamabala Debya at Khaskhole in the district of Malda leaving considerable amount of the immovable properties described in the Affidavit of Assets as also her near relations namely two daughters -- Sushamabala and Nirupama and their several sons and daughters. The Will was duly executed on 16th Agrahayan 1363, B. S. corresponding to 2nd December, 1956. The testatrix at the time of her death, it is alleged, had a fixed place of abode at Khaskhole. The appellant a son of Sushama was appointed executor in the Will and there being no other application for probate or for letters of administration, he was entitled to the grant of probate of the Will.

(3.) The proceeding on the objection by the other daughter Nirupama of the testatrix appeared as a contentious cause and in the written statement filed by her, apart from the general denial of all allegations made in the application, it was alleged that the Will was set up as a counter-blast to the partition suit already filed by her after the death of Rajeswari Debya who lost her mental balance long before the date of execution of the Will. She had no sound disposing mind and was completely under the control of Sushama and her sons and daughters and Sushama's son-in-law Byomkesh Pandey, all of whom conspired to grab her entire properties and thus to deprive Nirupama of her legitimate share of the properties left by her mother. As Billeswar, it is further alleged, was most intelligent and shrewd person amongst Sushama's sons, he has been set up as an executor in the Will and has now made an application on entirely false and frivolous allegations for grant of probate of the Will.