DEBJANI NIYOGI Vs. BANI NIYOGI

JUDGEMENT

(1.) This appeal arises out of a probate proceeding and is directed against a judgement and decree dated 16.09.1999 passed in Original Suit No. 5 of 1998 by which the application for probate to the Will in question was granted after a contest. The appellant before us, who contested the said probate proceedings, is the wife of the testator. The testator executed a Will on 14.02.1987, while living in his residential premises at 259, Darga Road, Calcutta - 17 and died on 01.06.1987 in the said residential premises.

(2.) Under the said Will, the testator appointed his two sisters, being the propounders to the said Will, as executrices. The grant of probate of Will was challenged by the appellant/wife and another sister of the testator, viz. Smt. Kalyani Moitra, who on her death, was substituted by Sri Anil Kumar Moitra and Soumyadarshan Moitra. But apart from filing the affidavit, the heirs of the deceased sister of the testator did not contest the grant of probate.

(3.) The testator married the appellant, who was a divorcee, on 31.08.1985. The appellant had a daughter by her previous husband. Within two years of the marriage with the appellant, the testator died. In the Will itself, the testator stated that the relationship between the appellant and the testator was not good and the testator recorded that the appellant was completely negligent of her household duties and was only concerned with her comfort and never looked after the needs of the testator. The testator also recorded in the said Will that the marriage with the appellant was fixed on the basis of an advertisement in the matrimonial column of a newspaper and it was also recorded by the testator that the testator was thinking of divorce with the appellant to get relief from her. But, the testator, in the said Will, made some provisions for the appellant to the extent of Rs. 750/- per month towards her maintenance so long the appellant does not remarry. But, the said amount was given on condition that the appellant must move out of the joint ancestral premises, i.e. 259, Darga Road, Calcutta -17 with her daughter and on that condition, the appellant will get the maintenance.