TAPESH KUMAR MAJHI Vs. BIRBAL MAJHI

JUDGEMENT

(1.) This appeal arises out of an order passed by the learned District Judge of Birbhum refusing to grant letters of administration with a copy of the Will annexed in respect of a Will which purports to have been executed by one Nafar Chandra Das as early as on 12th Falgun, 1334 B. S. corresponding to 25-2-1928, Nafar died in February, 1929. The application for letters of administration was at first filed in the Court of the District Delegate on 22-12-1952 by the present appellant Tapesh Kumar Majhi. The respondent entered caveat and the proceeding having become contentious the application was subsequently refiled in the Court of the learned District Judge on 23-4-1953.

(2.) The respondent challenged the genuineness and validity of the Will on several grounds. It was urged by him in the first place that the alleged Will was never executed by Nafar Chandra Das and it was not also attested by attesting witnesses in accordance with the provisions of Section 63 (c) of the Indian Succession Act. It was further the case of the respondent opposite party that the alleged testator had no lequisite testamentary capacity at the date of the Will.

(3.) Both parties adduced evidence before the learned District Judge in support of their respective cases and upon a consideration of the evidence adduced by the parties and also on a consideration of the circumstances of the case the learned District Judge held that the execution of the Will by Nafar is highly suspicious and he had no testamentary capacity at the date of the alleged Will because he was suffering from ulcerous leprosy of a virulent type at the date of the alleged Will and it is not likely that he could have given such thumb impressions as appear on the Will. The learned District Judge further held that the Will was not attested in accordance with law. In view of these findings the application for ant of letters of administration was dismissed by the learned District Judge. So this appeal has been preferred by the propounder of the Will.