BOJENDRA MOHAN MAZUMDAR Vs. DURGA CHATTERJEE

JUDGEMENT

(1.) The scope of the instant appeal is sought to be enlarged at the behest of the rival parties to the proceedings taking various routs impinging upon the impugned judgment passed by the Court of Probate below. The instant appeal is filed at the behest of the propounder/executor to the Will challenging the order of the Court of Probate below by which an application for grant of probate is rejected. The notice of appeal in the instant appeal was directed to be effected upon the heirs of the testator who would inherit the assets covered in the said Will in the event the testator dies intestate and after the service have been effected upon them, they have appeared and the instant appeal is contested by the sons of the testator; whereas the daughters by filing an affidavit/application have disclosed their stand in favour of the Will.

(2.) The facts germane from the record would reveal that one holograph Will was made, executed and published on 30/1/2010 by one Nabani Dhar Mazumdar who was an ordinary resident of Radhanagar Road, PO - Burnpur, PS. Hirapur, District- Burdwan. The said testator died on 17/5/2014 in Calcutta and an application for probate was taken out by the appellant to the said holograph Will before the Court of District Delegate at Asansol which gave rise to registration of Probate Case no. 190 of 2014. The contents of the said probate application were duly verified by the executor appointed in the said Will along with the verification and the affidavit verifying the statement by one of the witness to the said Will. Although the paper book does not contain the order passed by the District Delegate with regard to the citations and the notices to be served upon the heirs disclosed in the said application but the District Delegate found that one of the son namely Respondent no. 4 filed a vokalatnama and, therefore, it was perceived that the said proceeding has become contentious and directed the presentation of the application for probate before the District Judge as the District Delegate lacks jurisdiction to entertain the contentious cause.

(3.) The order dtd. 25/2/2016 passed by the District Judge would reveal that the matter was presented before it and the orders were passed to produce the original Will filed before the District Delegate, Asansol. Order dtd. 1/8/2016 would indicate that the service was effected upon the heirs except the general notice which was also held to have been effected in the subsequent order dtd. 28/11/2016. It is recorded in the said order that there is no appearance on behalf of the opposite parties and the appellant herein was directed to file a draft copy of publication in any Bengali newspaper widely circulated in the area where the near relatives lastly resided or carrying on the business. Upon approval of the draft copy for publication, it was approved by the Court and subsequently published in the newspaper "Aajkal Patrika" on 29/3/2017. The District Judge thereafter assigned the said matter for disposal to the Additional District Judge, 5th Court, Burdwan upon recording that despite the service having effected, citation having made therein, one of the sons has entered appearance. The order dtd. 29/1/2018 is reflective of the fact that despite the said date being fixed for appearance of the heirs in an anticipation of a contest, no one appears and there was further declaration by the Court that the summons upon all the heirs have already been served along with the general notice on 1/7/2016 and 24/11/2016 respectively. The Court made a further observation that in view of a non-appearance of the heirs to contest the said probate proceedings, the matter may be proceeded ex parte. Thereafter, the matter was proceeding ex parte and the appellant filed the affidavit as to Examination-in-Chief and also deposed in the Court. One of the attesting witnesses who verified the content of application for probate was also cited as a second witness to prove the Will and thereafter the matter was posted for argument. By the impugned order, the Court rejected the application for probate treating the documents received in evidence to be incomplete and inconsistent. The salient observations of the Trial Court is summarised as under: