LABANYA PROVA MITRA Vs. PURNENDU KUMAR GHOSE

JUDGEMENT

(1.) BY this appeal the judgment and order dated 20th May, 1994 of the learned Additional District Judge, Second Court, Howrah, granting probate of a Will has been assailed. The application for grant of probate of a testamentary instrument said to be of one Balai Charan Ghosh, since deceased, was made by the respondent Nos. 1 and 2 viz. Purnendu Kumar Ghosh and ardhendu Kumar Ghosh who were the named executors of the said Will dated 12th March, 1978 and it was marked as case No. 137 of 1981. On issuance of citation the appellant along with one Kanailal Ghosh filed their respective written statements. The appellant contested the said application for grant while Kanailal ghosh being the father of the applicant/respondent, supported the grant obviously because of their relationship. Whether there is contest or not the Probate Court has to be satisfied that the Will was validly and lawfully executed by the testator and the same is proved clearing the doubt from the mind of the Court and the duty becomes onerous when there is contest followed by witness action.

(2.) THE appellant, in her written statement, alleged in substance that the alleged Will was not executed by the deceased Balai Charan Ghosh out of his free Will or being aware of its contents. It is alleged that for a long time before and on the date of execution of the Will, Balai Charan Ghosh was not physically fit or mentally alert as such he had no power of understanding or capacity to execute alleged Will. The alleged Will is unnatural and it will appear from the nature of disposition of the properties. Had it been a genuine Will, it was contended, the testator would have made provision for the appellant/caveatrix who is the elder sister of the testator and also for her children. She has also alleged that the alleged document was created or manufactured by the plaintiffs/ respondents in collusion with the men of their group.

(3.) IN the backdrop of the above charges made by the appellant against the application for grant the learned Trial Judge framed the following issues: