PRATAP BHATTACHARYA Vs. ASHOK BHATTACHARYA

JUDGEMENT

(1.) This was an appeal against the Judgment and order dated 18th November, 2000 passed by the learned Trial Judge in Probate Suit No. 8 of 1959 whereby and whereunder Letters of Administration were granted with the Will annexed to the probate application.

(2.) The facts of the case leading to filing of this appeal are briefly stated hereunder: Asoke Bhattacharya, the sole respondent herein, on or about 19th May, 1988 applied for grant of letters of administration with the copy of the Will annexed, of his father late Puma Chandra Bhattacharya. Purna died on 28th September, 1979 leaving behind a document said to be last testamentay one dated 2nd August, 1974. The said testamentary instrument is described to be a holograph will which was also registered in the office of the Sub-Registrar of Serampore on the same date. Purna had married twice. His first wife Chameli, pre-deceased him in 1930 and in 1932 he married Ashalata Debi. His first wife Chameli gave birth to three sons viz. Pratap who is the appellant before us, Kapil and one Chandra Bhusan, a pre-deceased son and a daughter Shefali. His second wife Ashalata gave birth to two sons viz. Ashoke, being the respondent and Amiya who also died by this time leaving him surviving sole widow and Jayanti and his son, Amitabha and five daughters viz. Dipali, Sadhana, Aruna, Ruby and Bandana,

(3.) By the said Will Purna had bequeathed all his properties left by him at the time of his death in favour of his second wife Ashalata Debi exclusively and he also appointed her as sole executrix for obtaining probate of the said Will. After her death, in terms of the Will, all his estate and properties if not disposed of by his second wife Ashalata during her life time, were devolve upon the persons in accordance with the specification and stipulation made by the said testator in his Will. It appears from the text of the Will that Asoke and Amiya, being the two sqns out of the second marriage, have been given their proprietory interest in the estate as specified in the Will. The testator Purna did not deprive Kapil being the son through his first wife. He has deprived the daughters of any proprietary right, title, interest in his estate. However, they have been given right to stay and use in the event new construction is made on the second floor of the main building by Amiya, the fourth son, in his allotment. Pratap, the appellant has been absolutely deprived for the reasons mentioned in his document. It further appears from the text of the document that at the time of execution, attestation and registration of the same, the appellant was allowed to stay temporarily in a tile shed room situate within the premises.