BIJANLATA MUKHOPADHYAYA Vs. BIBHUTI BHUSAN MUKHOPADHYAYA

JUDGEMENT

(1.) THIS appeal is preferred by the only daughter of the testator against the judgment and decree passed by the additional District Judge, Howrah, granting probate of a Will, with the copy of the Will annexed, to the only son of the testator-respondent No. 1. The instant proceeding originated in a petition filed by the son in which the relevant facts as set out are as follows : one Satish Chandra Bandopadhyaya, since deceased, who was a Hindu governed by the Dayabhaga School of hindu Law, having his permanent place of abode at No. 277a, Circular road, Sibpur, within P. S. Sibpur, district Howrah, died on September 9, 1956 from an attack of appoplexy. He left behind him a Will duly executed and attested by him on April 28, 1955 wherein he made a bequest of considerable immovable properties, some in favour of his only son and some in favour of his three grand sons and also a little portion in favour of his only daughter. This Will was his first and the last Will. By this Will, the testator also appointed the petitioner as the sole executor. The testator also left behind him surviving by his widow Sm. Nanibala Debi, his only son Bibhuti bhusan Bandopadhyaya, only daughter snii Bijanlata Mukhopadhyaya (Married)and three grand sons Biswanath bandopadhyaya, Baidyanath bandopadhyaya and Lokenath Bandopadhyaya as also three sons of said married daughter. The properties, both movable and immovable, were valued in all for Rs. 1988-3-9 p. and Rs. 6,6937. 15. 3 p respectively and described in the schedule to the petition as also affidavit of assets. No application for probate or succession certificate of letters-of-administration in respect of the movable or the immovable properties of the deceased was filed in any other court or pending in any court. There was also no legal bar to the grant of the probate to the petitioner who was entitled to the grant of probate as the sole executor.

(2.) THE only daughter Bijanlata opposed the grant. She filed written statement setting out her objections against the grant of probate. Her case, inter alia, was that the Will was not a genuine Will and not legally and validly executed. Her specific case also was that the Will was created on blank papers signed by the testator and also after obtaining the signatures of her husband Chunilal Mukherjee and one of her sons Basanta Mukherjee collusively by the only son, respondent No. 1. It was also alleged that the testator had no mental capacity or sound disposing mind to execute the Will. Alternatively, it was alleged that Bibhuti bhusan Bandopadhyaya, the son of the testator got the Will executed by exercising undue influence and coercion upon the testator who was a tool in his hand sometime prior to the date of his death. Thus, the proceeding became a contentious one and the following issues were framed by the trial court: (1) Is the Will a genuine document ? (2) Was the alleged Will duly executed and attested ? (3) Was the testator of sound disposing mind and understanding and had he testamentary capacity at the time when the alleged Will is purported to have been executed; (4) Was the testator invalid both in body and mind for several years before his death ? and was he during that period completely under the influence and thumb of the plaintiff? was the alleged Will executed by the testator as a free agent ?

(3.) THE trial court on the first and the second issues held the Will a genuine one and it was duly executed and attested. On the third issue it took the view that the testator had sound disposing mind and had testamentary capacity to execute the Will. It also held on the fourth issue that there was no undue influence exercised upon the testator by the respondent No. 1 or anybody else and the testator executed the Will as a free agent. That is, in short, how the appellant felt aggrieved and preferred the present appeal.