LOKDEEP ROY Vs. NIHAR KUMAR ROY

JUDGEMENT

(1.) The instant first appeal is directed against the judgment and decree passed by the Learned Additional District Judge, Paschim Medinipur, on 15th January, 2009 at the instance of the plaintiff/appellant being the propounder of the last Will allegedly left by late Tushar Kr. Roy. Tushar Kr. Roy was a bachelor. He was a qualified person. He was an employee of Indian Air Force. He was posted in different parts of India while he was in service and after his retirement he settled himself in his native village at Jhargram. At the age of 79 years, he executed a Will on 8th September, 2003 by bequeathing his properties in favour of Arup Roy, who was the son of the cousin brother of the testator. The said Will was executed on 8th September, 2003 and the same was presented before the Notary Public for certification by him on 12th September, 2003. Subsequently, he died on 8th June, 2005 at the age of 81 years. After his death the Will was discovered from a sealed envelope and the executor, namely, Lokdeep Roy, son of Arup Roy, applied for grant of probate of the said Will left by Tushar Kr. Roy. Tushar Babu the testator who was a bachelor had five brothers and two sisters. All his brothers and sisters excepting Nihar Babu pre-deceased Tushar Babu, the testator. As such, Tushar Babu's natural successor was Nihar Babu who was the only living brother of Tushar Babu at the time of his death. Niharbabu died on 7th July, 2007 leaving behind him surviving his widow Nira and a daughter Bulbul. Bulbul contested the said proceeding by filing written statement. She contended that Tushar Babu was a cardiac patient. The Will was never written under the instruction of Tushar Babu. The signature of Tushar Babu on the Will is very much suspicious. The Will was a forged, fabricated and antedated document procured by the applicant/propounder who in collusion with his father Arup Roy being the beneficiary under the Will manufactured the said Will to grab the entire left out properties of the deceased by depriving his other heirs.

(2.) It was further stated therein, that he being a cardiac patient was very much worried about his physical problems and, as such, it was not possible for him to conduct execution of the Will out of his free will. She thus prayed for dismissal of the propounder's application for grant of probate. One Ashok Kr. Roy being the son of another pre-deceased brother of Tushar Babu, namely, Saroj, got himself added in the said proceeding and he also contested the said probate proceeding by filing written statement and by giving evidence in the said proceeding.

(3.) While considering the said application for grant of probate, the learned Trial Judge not only considered the objection of Bulbul being the daughter of Nihar Babu but also considered the objection of Ashok Kr. Roy, who was also allowed to contest the said proceeding by the Court below. The learned Trial Judge ultimately rejected the appellant's said application for grant of probate to the said Will of Tushar Babu by holding, inter alia, that the said Will is nothing but a forged and fabricated document.