GURUDAS CHATTERJEE Vs. BRJOY KRISHNA BANERJEE

JUDGEMENT

(1.) THIS is an appeal by the propounder against the judgment and decree dismissing a contentious application for grant of the probate or letters of administration.

(2.) THE propounder Gurudas chattapadhaya is the grandson of the testator late Harendra Chandra chattapadhaya. His case is that the testator duly executed a Will on February 7, 1933, which was also duly attested by the witnesses. The Will was registered on June 2, 1933, and the testator died on June 12, 1933. By the said Will the testator provided that the income from Rs. 7,000/- which he inherited from his second wife as also the income from all his immovable properties should be spent for the performance of sri Sri Iswar Durga Puja and Sri Sri iswar Shyama Puja every year. Other movable properties were given to the propounder and he was directed to perform therewith the daily and periodical pujas of the ancestral deity iswar Gopal Jew. The testator, who had no son, made his elder brother's son Kiriti, the father of the propounder, the executor to his Will. The said executor as trustee was charged with the performance of the puja and on his death the propounder was to succeed as trustee charged with the same duties and a trustee was also authorised to appoint his succeeding trustee being a lineal descendent of the testator. The will further recited. that the testator had a daughter named Durgeshnandini, by his first wife who was dead, and the said daughter was then a widow, and the condition of her family was good there being no apprehension of her being in want of food or clothing. Accordingly no provision was made for the daughter or her sons in the will. The propounder was also made liable to maintain the daughter in event of her disagreement with her sons and if she so desired she could reside in a portion of the house of the testator with a maintenance of Rs. 5/-per month. These are the broad features of the Will.

(3.) IT is the further case of the propounder that since the death of the testator, his father Kiriti had been performing the pujas as directed by the Will kiriti had in his possession the Will executed by the testator but he never obtained the probate of the Will. Kiriti died on 2nd Chaitra 1354 B. S. corresponding to March 15, 1948. After death of Kiriti, the propounder had been carrying on the pujas as required by the will. The propounder is the only son of the first wife of Kiriti who had seven sons and one daughter through his second wife. Since about 3/4 years, there was ill-feeling between the propounder and the step brothers and such ill-feeling was continuing. It then became necessary to have the trust properties demarcated for the purpose of proper management and supervision of the testator's properties. Accordingly, it was urgently necessary to have a grant of the probate of the Will or of the letters of administration with the copy of the Will annexed. The original Will was with Kiriti when he died at the native village of Khudrun and all the documents on his death fell into the hands of the propounder's brother Bagala and since then they had been in his custody. The propounder, however, failed to get the original Will from Bagala in spite of attempts and had to take out a certified copy of the will which he filed along with his application for the grant. The application for the grant was filed on October 11, 1955, and in the affidavit of assets, the properties declared as belonging to the testator are the undivided half share of the lands described in the schedule thereto.