KRISHNA BERA Vs. PRABIR PRAMANIK

JUDGEMENT

(1.) By this appeal the appellants above-named before us have impugned the Judgment and order passed by the learned Additional District Judge, 3rd Court at Barasat in O.S. No. 12 of 1995 whereby and whereunder the probate to the last Will and testament of late Binoy Krishna Pramanik has been granted. The short fact of the case which has given rise to this probate proceedings is stated hereunder.

(2.) The testator, one Binoy Krishna Pramanik, since deceased, before his death that took place on 12th November, 1988, is said to have executed his last Will and testament dated 13th July, 1988 and the same was registered on the same date. The applicant viz. the first respondent Prabir Pramanik was appointed as executor along with his mother Smt. Kamala Pramanik. It is alleged that because of inaction on the part of Kamala Pramanik, Prabir Pramanik applied for grant. It appears from the affidavit-of-assets that the testator has left a considerable properties which consists of house building and landed property. It is stated that the said Will was duly lawfully executed and attested and thereafter registered by the testator out of his own volition. Written statement was filed by one Smt. Prakriti Chatterjee, appellant No. 3 herein and the same was preceded by lodging caveat. In the written statement validity and legality of the attestation, execution and registration of the same was challenged. It is alleged further that the said Will in question is a product of fraudulent, collusive act and the same was manufactured and procured upon coercion and threat. In substance, the Will is not a genuine document. According to them at that point of time the said testator was critically ill and his mind and body were not in functioning position to execute any document. It has also been alleged that the said testator was a patient of chronic diabetes and used to suffer from a trouble of prostrate gland for a long time rendering him unfit completely before his death. As a matter of fact, Binoy Krishna Pramanik lost his power of vision, and hearing nor he could speak in communicable way. In other words, he failed to understand and interpret. Even assuming that the Will is otherwise executed properly the same is absolutely unnatural as far as disposition is concerned. Specific allegations have been made that the said Will was procured by the executor who is beneficiary under the Will.

(3.) On the aforesaid factual context the learned Trial Judge framed following issues: