PRITHWIS KUMAR MITRA Vs. BIBHUTI BHUSAN MITRA

JUDGEMENT

(1.) These are two appeals arising out of two probate proceedings in respect of two wills left by the testator Rajani Kanta Mitra. The wills in question are dated August 13, 1951 and December 28. 1953. Probate has been granted by the learned trial Judge of this last mentioned will and an application for probate in respect of the other one has been refused.

(2.) The Appellant was the propounder of the said earlier will, of which probate has been refused by the learned trial Judge, and he was the caveator in the other proceeding in which probate has been granted by the learned trial Judge in respect of the will, dated December 28, 1953, as stated hereinbefore. The two proceedings were heard analogously in the Court below. The earlier will, dated August 13, 1951, was marked as Ext. A and the later will, dated December 28, 1953, was marked Ext. 4. The Appellant, as the pro-pounder of the earlier will, filed his application for probate on March 28, 1955, with a certified copy of the Said will annexed which, of course, was registered as was the other one too. This proceeding was numbered as O.S. 21 of 1955, later re-numbered as O.S. 73 of 1955, and out of the same and directed against the refusal of probate in that case, has been filed F.A. No. 273 of 1958 by the Appellant. In respect of the other will, the propounder (Original Respondent No. 1) filed his application for probate on May 13, 1955, which was registered initially as O.S. No. 35 of 1955, later re-numbered as O.S. 72 of 1955, and which eventually succeeding and the probate of the said will having been granted by the learned trial Judge, that will also being a registered one as already stated, the caveator Appellant filed the other appeal in this Court (F.A. No. 272 of 1958). These two appeals have been heard together and analogously and, evidently, if one succeeds in the facts of this case, the other also will necessarily succeed.

(3.) The testator appears to have made altogether three wills. Besides the two wills referred to hereinbefore, there was an earlier will, which was dated March 27, 1950, and which is referred to in the will, dated August 13, 1951, and expressly revoked by it. The two wills before the Court (Exts. A and 4) are both holograph wills. Both appear to have three attesting witnesses. There was also, eventually, no dispute as to the validity of the earlier of the said two wills, namely, the second will, dated August 13, 1951 except that, according to the propounder of the other or the later will dated December 28, 1953, it was revoked by the said last mentioned will. There were, of course, various objections taken as to the validity of this last will by the caveator, who is the Appellant before us, but those objections eventually boiled down only to two points, namely, that it was not validly attested according to law and, secondly, that it was vitiated by undue influence. If these two objections or any of them be decided in favour of the said caveator, probate of this will cannot be granted, and, almost as a matter of course, the will, propounded by him, namely, the earlier will, dated August 13, 1951 will have to be probated. If, on the other hand, none of these objections be accepted then, in that case, the will dated December 28, 1953, being the last will of the testator and expressly also containing a clause revoking the earlier will, it will have to be probated and the trial Court's refusal of probate in respect of the other will also have to be affirmed as a necessary consequence. The points, therefore, which arise for consideration in these two appeals are: