CHARU CHANDRA MUKHERJEE Vs. KHITISH CHANDRA MUKHERJEE

JUDGEMENT

(1.) Devraj Mukherjee was a leading pleader of the Suri Bar. He died at the age of about 76, in his Bolpur House on 15th February 1943. At the time of his death the following persons were his near relations: Sm. Kasi Kamini Devi, his widow, three sons viz., Charu Chandra, Kshitish Chandra and Tararanjan and four sons of Charu Chandra, viz., Dilip Chand, Manik Chand, Gouranga Sundar and Shankar Lal. His grandson Dilip had become pleader sometime ago and had acted as a junior to his grandfather Debraj Kshitish Chandra, Tararanjan and Dilip Chand applied for probate of his will said to have been executed by him on 23rd December 1942 at his Suri house. The will was registered at Suri on the same day. The objector is Charu Chandra who by the will has been practically cut off from the testator s estate. Only a small provision for his maintenance and of his wife and for his residence at the village house of the testator at Kalgram have been made for him.

(2.) By the terms of the will a trust was created of the remaining portion of his property save and except the Kalgram house. Kshitish Chandra and Tararanjan have been appointed trustees with a provision that a son out of the four sons of Charu Chandra was to be a trustee with Kshitish Chandra and Tararanjan. There is provision for the appointment of succeeding trustees. The trust is to last up to the lifetime of the great grandsons of the testator. The trustees were to perform the Deb Seba of the deity, installed by the testator viz., Sri Sri Iswari Dakshina Kalika Devi. The surplus left after meeting the expenses of the Deb Seba is to be distributed in certain shares to Khitish Chandra and his descendants, Tararanjan and his descendants and to the descendants of his eldest son Charu Chandra. In the last clause of the will the testator directed his trustees to arrange for his funeral and the funeral of his wife and also to arrange for their Sradhs. After the termination of the trust, the properties were to vest in the deity Sri Sri Iswari Dakshina Kalika Devi.

(3.) His eldest son, Charu Chandra only opposed the will. His case was that (i) that the document propounded was not a testamentary one, (ii) if it was a will it had not been properly executed, (iii) that he had no testamentary capacity, (iv) that it was executed under the undue influence exerted upon the testator by his own son, Dilip, (v) the applicants were not entitled to probate inasmuch as they were not the executors under the will and (vi) they could only apply for letters of administration with a copy of the will annexed even if the will was proved, but by their acts they had disqualified themselves from applying for letters of administration with a copy of the will annexed. The last mentioned point is not noticed in the judgment of the learned District Judge. The learned District Judge found that (i) the document propounded was a testamentary one, (ii) that it was duly executed, (iii) Debraj had testamentary capacity, (iv) there was no undue influence exerted over him as alleged by the objector, and (v) the applicants were entitled to apply, for probate inasmuch as they although not expressly mentioned as executors in the will of the testator were executors according to the tenor of the will. He accordingly, granted probate of the will to the applicants.