AJIT KUMAR Vs. MUKUNDA LAL

JUDGEMENT

(1.) The main question for determination in this appeal is the validity of a will executed by one Nalini Sundari Debi, widow of Rai Bahadur Kalachand Moulik, on 24-4-1950 and registered on 13-2-52. After execution and registration of the Will Nelini Sundari died on 5-6-59, leaving four sons, Mukunda-lal, Provat, Sailendra and Ajit as well as a daughter named Kamala. She had two other daughters, Binapani and Renubala, who had died prior to the filing of petition for grant of Letters of Administration by Ajit, the youngest son of Nalini Sundari in the court of the District Delegate, Alipore, on 2-8-79. The plaintiff appellant, Ajit Maulik, filed that petition for grant of Letters of Administration on alleging that he was the specific and universal legatee under the Will.

(2.) The suit in the court below was contested by the respondents 1 and 2, Mukunda and Provat. The defence was that Rai Bahadur Kalachand Maulik, husband of Nalini Sundari, was the sole and absolute owner of all the properties, including the properties mentioned in the Will. Nalini Sundari was only a benamdar. It was alleged that it seemed that Nalini was not aware of the contents of the Will and did not execute the Will, which was not a natural one.

(3.) The appellant examined himself as P.W. 1. P.W. 2 was Sri Suresh Chandra Mukherjee, one of the attesting witnesses of the will. It is in evidence that two other attesting witnesses of the Will, Monmohan Guha Thakurta and Dr. Kaliprosad Chakraborty, are dead. The respondent 1, Mukunda, examined himself as D.W. 1. On a consideration of the evidences of these witnesses and the materials on record, the learned Additional District Judge, Third Court, Alipore, who tried the suit in the court below, dismissed the suit. According to the learned Additional District Judge, the conscience of the court was not satisfied inasmuch as, according to the evidences, Nalini was barely educated without any schooling and as such, could not have appreciated the plan appended with the Will. The absence of near relations of Nalini Sundari during the execution of the Will, the fact of execution of the Will at the house of a professional lawyer, the absence of any independent legal advice at the time of execution of the Will as well as the absence of proof of the plan appended with the Will, were the other circumstances weighing with the learned Judge for dismissing the suit.