DURGA CHARAN Vs. BHUDIBALA

JUDGEMENT

(1.) The suit out of which this appeal arises was for granting Letters of Administration with a copy of the Will annexed to the plaintiff-appellant, Durga Charan alias Durgadas Sardar. One Kali Kumar Naskar was the owner of various properties. He had two brothers, Nabin and Abhoy. Tarak is the son of Nabin. Nanilal and Charan are the sons of Abhoy. Kali Kumar had adopted a son named Phani Bhusan, son of Abhoy: He had a daughter named Gourimani who was married with one Kirtibas Sardar. The plaintiff-appellant Durgadas as well as Madhusudan, Jiban Krishna, Hirendra and Narendra are the sons of Gourimani. Kali Kumar left a Will dt. 8-6-1932, corresponding to 25th Jaistha 1339 B. S., bequeathing some of his properties to Gourimani and after her death to her son, son's son and heirs in succession and to his adopted son, Phani Bhusan and making provisions for his widowed sister-in-law, Smt. Fulmani Dasi. His wife Jnanada Mani was appointed as executrix and his son-in-law, Kirtibas was appointed as executor of this Will. This Will was registered. After the execution of this Will, Kali Kumar died in Jaistha 1341 B. S. His wife Jnanada Mani died in Pous 1358 B. S. His son-in-law Kirtibas died in Agrahayan 1359 B. S. His daughter Gourimani died in Phalgun, 1371 B. S. After the death of the executrix and the executor of the Will as well as Gouri Mani, an application was made on 8-3-1972 by the plaintiff-appellant in the court of the Munsif, Baruipur, for granting him Letters of Administration along with a copy of the Will annexed. This application, being contentious, was filed in the court of the District Judge, Alipore, on 18-9-72 and was registered as a suit. The suit was subsequently disposed of by the learned Additional District Judge, 12th Court, Alipore, who was pleased to dismiss the suit on contest with costs. Being aggrieved by this judgment and decree of the learned Additional District Judge, the present appeal has been filed by the plaintiff-appellant.

(2.) The case of the plaintiff-appellant is that the Will dt. 8-6-32 was the last Will of Kali Kumar. The appellant is one of the legatees mentioned in the Will. The Will was found out in a box along with other papers in December, 1971. This Will and the other papers were originally in the custody of his father, Kirtibas. The executrix or the executor did not apply for probate of the Will. As such, the petitioner prayed for granting him the Letters of Administration with a copy of the Will annexed on valuing the properties of Kali Kumar at Rs. 10,000/- in an affidavit filed along with the application for grant of Letters of Administration alleging that most of the assets of Kali Kumar were lost before the filing of the application for grant of the Letters of Administration.

(3.) The case was contested by Phani Bhusan and later on by some of his heirs. The defence was that the appellant had no locus standi to file the suit. It was alleged that the Will was never duly executed and was never duly attested. It was further alleged that Kali Kumar had no mental and physical testamentary capacity. It was also alleged that the registration of the Will was done collusively and fraudulently behind the back of Kali Kumar. The defence was that during the revisional settlement operations, Phani Bhusan got the properties recorded in his name. Phani Bhusan sold many properties to different persons during his lifetime to the knowledge of the plaintiff-appellant. He was in possession of the entire properties of the deceased Kali Kumar and after his death, the heirs of Phani Bhusan were in occupation of all the properties left by Phani Bhusan. The appellant had examined three witnesses. P.W. 1, Nirmal Ch. Das is one of the attesting witnesses of the Will, Ext.1. P.W. 2, Durgadas Sardar is the plaintiff-appellant. P.W. 3, Monoranjan Mondal was examined to say that his father and uncle purchased some properties from Kali Kumar by a kobala, Ext.2. It is in this kobala, Ext.2, that there is a recital that Kali Kumar executed, read, signed and registered one piece of Will on 25th Jaistha, 1339 B. S. and had appointed his wife and son-in-law as Executrix and Executor. Two witnesses were examined for the contesting respondents. They were D.W. 1, Beharilal Mondal, who spoke about the absence of mental capacity of Kali Kumar to execute any Will. D.W. 2, Bholanath Naskar, was one of the contesting defendants of the suit.