ARUN KUMAR DUTTA Vs. SANKAR KUMAR DUTTA

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 18th May, 1989 passed by the learned Additional District Judge, 1st Court, Hooghly in Probate Suit No. 15/1984 thereby allowing the probate suit and granting probate in favour of the respondent propounders of the Will of late Prasanta Kumar Dutta.

(2.) The respondents as propounders filed the above stated suit for grant of probate under Section 276 of the Indian Succession Act and also as executors of the Will and testament executed by their uncle Prasanta Kumar Dutta (since deceased) on 23.2.81. In their application for grant of probate which was converted into a suit it was disclosed by them that the testator Prasanta Kumar Dutta was full blood brother of their father late Anil Kumar Dutta of 43, Dharmatala Lane, Bhadrakali within P. S. Uttarpara.The testator made the said Will on 23.2.81 in favour of the two propounders and their brothers namely, Sekhar Kumar Dutta, Asis Kumar Dutta and Paramesh Dutta and bequeathed his entire properties as described in schedule A of the petition. The testator was a bachelor and he left behind his two brothers namely, Sisir Kumar Dutta, Dilip Kumar Dutta and one sister namely Sovona Basu. No other application was made by anybody in any Court, in India for obtaining probate of the said Will or for letters of administration in respect of estate of testator. It was also contended by the propounders that they have incurred Rs. 6,000/- as expenses for the funeral and sradh ceremony of the testator.

(3.) The appellant as caveator contested the said suit by filing written statement denying therein all material averments of plaint. He inter alia contended that the Will is not a genuine one and it was procured by coercion, misrepresentation, fraud and undue influence on the testator. The testator was suffering from cancer and was being treated as indoor patient in PG Hospital but one of the propounders, namely, Sanka- Kumar Dutta, executing risk bond obtained discharge of the testator from hospital and took him away to house without consulting other brothers of testator or any other relative. The Will was executed within a fortnight from date of return of the testator from hospital and 45 days before-his death. The testator had great respect upon the O.P.'s father and other brother Dilip Kumar Dutta but, they were not given anything in the said Will and it establishes that at the relevant time of execution of Will the testator had no disposing capacity both mental and physical in respect of his properties. It was also alleged that the propounders have included in their claim the commuted value of the pension of the testator though it was not bequeathed in the Will and it shows that the Will was suspicious in nature.