KARTICK BANERJEE Vs. BHOLANATH BHATTACHARYA & ORS

JUDGEMENT

(1.) This appeal was filed beyond the prescribed period of limitation. The last date for filing this appeal has expired on 7th March, 2015. The instant appeal was filed on 25th March, 2015. Thus, there was 18 days delay in filing this appeal before this Court. Reason for the delay has been explained by the appellant/applicant in this application. Such delay was caused due to wrong calculation of the limitation by the learned advocate. The appellant cannot be penalised for such a wrong committed by his lawyer.

(2.) Accordingly, we hold that the reason for the delay has been sufficiently explained by the appellant. Delay in filing this appeal is, thus, condoned.

(3.) Since the contesting parties are before us, we have decided to consider the appeal on merit by dispensing with requirement of filing of paper book in this appeal. Since the other respondents did not contest the probate proceeding in the court below, service of notice of appeal upon those respondents is dispensed with, on the request of the learned advocate appearing for the appellant. Let us now consider the merit of the appeal in the facts of the present case. One Anil Kumari Debi died testate on 12th June, 2005 after publishing a Will executed by her on 30th December, 1996. Kartick Banerjee was appointed as an executor in the said Will. He applied for grant of probate after the death of the testatrix, Anil Kumari Debi. The said proceeding became contentious as Biswanath Bhattacharya and Bholanath Bhattacharya filed objection challenging the genuineness of the said Will. They contended that the testatrix was aged about 80 years when she executed the said Will. They alleged that at the time of execution of the said Will, the testatrix was not physically fit and mentally alert as she was suffering from serious illness. It was, further, alleged that during the material time she was under the control of the executor who after taking unfair advantage of such situation compelled the testatrix to execute the said Will. After the said probate proceeding became contentious, the propounder examined himself as P.W-1. Another witness viz., Raja Ram Chakraborty was also examined as P.W.-2. While cross-examination of the said P.W.-2 viz. Raja Ram Chakraborty was going on, the contesting parties along with one Nani Gopal Bhattacharya filed an application for settling their dispute out of court. The said application was fixed for hearing. On the day when the said application was taken up for hearing, the learned Trial Judge was of the view that the probate proceeding cannot be compromised even if the contesting parties come to a consensus.