BINAPANI SAMANTA Vs. SAMBHU MONDAL

JUDGEMENT

(1.) This first appeal is at the instance of an applicant for revocation of Probate and is directed against the judgment dated September 4, 1990 passed by the learned Additional District Judge, Ninth Court, Alipore, District South 24-Parganas, in Original Suit No.5 of 1983 thereby dismissing the proceedings on contest.

(2.) The short fact of the case made out by the appellant is that one Lalit Mohan Das and his wife, Dalimmoyee, had no issue of their own and they adopted the appellant as their own daughter after observing ceremonies in presence of the local people and near relations. The adoptive parents arranged for education and marriage of the adopted daughter. The respondents are the near relations of Dalimmoyee but they did not attend any ceremony of Dalimmoyee being envious of them. Evan on the death of Dalimmoyee in 1974, the respondents did not perform any funeral rites and Sradh ceremony. Dalimmoyee was suffering from various ailments at her old age and the appellant and her two sisters looked after her. The husband of the appellant performed Sradh ceremony with the consent of the cognates of Dalimmoyee in presence of tenants of Dalimmoyee. In 1982, the appellant came to know that the respondents obtained a probate in respect of the premises at 154, S. N. Roy Road, Calcutta 38 under P. S. Behala belonging to Dalimmoyee. The Will purported to have been executed by Dalimmoyee was a forged one. Dalimmoyee died intestate. She did not execute any Will at all. Even no notice was ever served upon the appellant in respect of the probate case, though she was the only of Dalimmoyee legal heir by adoption. So the appellant filed the proceedings for revocation of the probate granted in favour of the respondents in the Probate Case No.7 of 1976.

(3.) The respondents contested the proceedings by filing a joint written statement contending, inter alia, that they are respondents are not at all distant relations of Dalimmoyee and that the appellant was not adopted by Dalimmoyee as her own daughter. No adoption ceremony was held at all according to Hindu Law and custom. In fact, the father of the appellant, Kanailal Das, was a tenant under Lalit Mohan and he was an employee of the Tram Company, but he lost his service after he became a paralytic patient. He was completely invalid. He had six daughters and one son. In order to save Kanailal Das and other members of his family from starvation, they were allowed to stay at the house of Lalit Mohan afterwards out of charity. The husband of the appellant did not arrange for Sradh Ceremony of Dalimmoyee at all. But one Banshi Das, a cousin of Late Lalit Mohan, performed the Sradh Ceremony of Dalimmoyee. It was not true that Dalimmoyee had been suffering from various ailments or that she had no good relation with the respondents. The Will was duly executed by Dalimmoyee in presence of the witnesses. Since the death of Dalimmoyee, the respondents have been collecting rents from the tenants of the premises of Dalimmoyee and in fact, they are making necessary repairs of her premises. It is not true at all that the appellant and her two sisters looked after Dalimmoyee. As the appellant was not a near relation of Dalimmoyee, question of serving notice upon her did not arise. So the proceedings should be dismissed.