BINDESWARI DUBEY Vs. UTTAMA DEBI

JUDGEMENT

(1.) Gobordhan Dubey died on 29th November, 1989 leaving behind his wife, four sons, and the wife and children of his pre-deceased son. Gobordhan Dubey allegedly executed a Will on 6th November, 1980 and his sons Bindeswari, Lakhu and Prabhu Dubey were the executors of the Will. Prabhu Dubey, however, died prior to his father. After the death of Gobordhan Dubey, Bindeswari Dubey filed an application for probate of his father's Will being Probate Case No.13 of 1991. The application was contested by the other heirs of Gobordhan Dubey and was converted to O.S. No.1 of 1995. Bindeswari contended in his plaint that his brother, Lakhu was in possession of the original registered Will of Gobordhan Dubey. He pleaded that despite repeated requests, Lakhu had refused to produce the original Will and therefore the plaintiff had submitted that application on his own for probate on the basis of a certified copy of the Will of Gobordhan Dubey.

(2.) The defendants, i.e., the other heirs of Gobordhan Dubey, by two separate written statements denied the existence of a Will executed by Gobordhan Dubey. They contended that it was because a civil suit had been instituted by them against the plaintiff, Bindeswari, that he created a story about the existence of a Will in order to frustrate the pending litigations between the parties.

(3.) The plaintiff, Bindeswari examined himself before the Court in support of his claim and also adduced the evidence of four other witnesses, two of whom were allegedly the attesting witnesses to the Will of Gobordhan Dubey. PW 2, an employee in the office of the District Registrar at Alipore, South 24 Parganas, was examined in order to prove the certified copy of the Will. PW 5 was the son of the advocate who allegedly drafted the Will of Gobordhan Dubey. Lakhu testified in the Court on behalf of all the defendants to rebut the evidence of the plaintiff.