ASHUTOSH SEAL Vs. UMASHASI SANTRA

JUDGEMENT

(1.) This appeal is against the judgment and decree passed in Probate Suit No. 3 of 1971 by the 1st Court of Additional District Judge at Howrah dismissing the said suit with costs.

(2.) The application for probate of the will alleged to have been executed by Radhika Prosad Seal alias Shee was filed by the appellant Ashutosh Seal. One of the executors named in the said Will which is alleged to be the last Will of the testator. The Will being contentious the application was returned by the District delegate and it was refiled before the District Judge. Howrah. The caveator respondent Umashasi Santra; daughter of the testator, filed a written objection contending inter alia that the Will in question was not executed by her father, the testator, that the Will was a forced one and it had been created by the propounder in collusion with his henchmen in order to deprive her of her legitimate share in the properties left by her father Radhika Prosad Seal and as such the said suit should be dismissed. It was also stated therein that the testator 9/10 years before his death was absolutely confined to bed and during the last three, years he had no sense to identify people and he was under full senility, he was not physically fit and mentally alert to execute the alleged Will, it was further alleged that Radhika Prosad Seal died interstate. Plaintiff alone with others got a deed of gift in respect of 1/6th share of the properties from one of their sisters Sefalika Parta on payment of money to her in 1962. The propounder also offererd to pay her Rs. 5.000 for transferring her 1/6th share in the properties in their favour but she refused to do so. On the above pleadings following four issues were framed:--

(3.) The Additional District Judge, 1st Court Howrah after consideration and assessment of the evidence on record held that the suit was maintainable in its present form. It was further held that though the terms of the disputed Will did not appear to be unnatural and unreasonable vet there were circumstances raising suspicion regarding the execution of the Will by Radhika Prosad. The propounder failed to remove the suspicions regarding the execution of the Wilt by the testator by going to the house of the lawyer after calling the witnesses from their houses in Calcutta, it was not executed by the testator. The suit was therefore dismissed.