NIMAL CHAND BASU Vs. NIRANJAN HALDER

JUDGEMENT

(1.) Sanat Kumar Halder of village Jamalpur, District-Burdwan, died on 31.5.73. The petitioner, Nimai Chand Basu, filed Probate Suit No. 227 of 1973 in the District Court for obtaining the probate of the will of late Sanat Kumar Halder, said to have been executed on 18.5.72. The petitioner-propounder submitted that Sanat Kumar Halder executed the will of his free will and that he had bad disposing capacity. The petitioner is the son of late Hrishikesh Basu, who was the friend of late Sanat Kumar Halder. It was stated that the testator had love and affection for the sons of Hrishikesh Basu and as a token of affection towards the petitioner and his brothers, made the provision in their favour by the said will. Sanat Kumari Halder died bachelor.

(2.) Phanindra Nath Halder and Jagadish Halder, brothers of late Sanat Kumar Halder, filed objection. Various suggestions were thrown in the objection petition of the caveators. It was suggested that Sanat Kumar Halder was not aware of the true import and the contents of the will. It was next contended that the will was not at all executed or signed out of free will of the deceased, Sanat Kumar Halder. Then it was pointed out that in the month of Jaistha, 1379 B.S., the body and mind of late Sanat Kumar Halder were in a bad condition and he had lost the natural faculties of forming judgment of his own. Towards the end of the month of Falgoon, 1378 B.S.- so it was urged - Sanat Kumar had had an attack of cancer in the throat and the same became very severe since the month of Baisakh, 1379 B.S., which had a serious impact on the body and mind, so that he (Sanat Kumar) lost his senses, judgment and intelligence relating to property, etc. Then it was stated that the opposite parties and their relatives looked after Sanat Kumar all along and even during his illness and that after his death, Niranjan Halder performed the religious ceremonies. The suggestion was thrown that Hrishikesh Basu, the father of the propounder, was very cunning and shrewd and that he was doing the jobs of stamp Vendor and Deed writer in the Memari Sub-Registry Office and then continued his avocation at the Jamalpur Sub-Registry Office. Kazi Moqbul Hossain was also a Deed writer at the Jamalpur Sub-Registry Office. Kazi Asgar Hossain and Kazi Mozamel Hossain were stated to be the sons of Kazi Maul Hossain. Dhirendra Nath Banerjee, an attesting witness of the will was described as an employee in the Joint Sherista of Kazi Moqbul Hossain and others. Suggestions were thrown as regards the predicament of the other witnesses too. Then, it was specifically stated that Hrishikesh Babu created the paper, described as a will, and got it registered fraudulently by means of trick. With regard to that, it was further narrated that Hrishikesh Babu out of greed prepared another instrument written by Kazi Moqbul Hossain styled as a Deed of Gift, dated the 11th of Kartick, 1379 B.S., corresponding to 28.10.72, in respect of the remaining lands and the homestead of Sanat Kumar, giving a wrong impression to Sanat Kumar and not letting him know about the contents of the Deed. It was summed up that the deceased Sanat Kumar Halder never intended to execute a will or to give away any of his properties to the petitioner or to his brothers.

(3.) Upon these pleadings, three issues were raised.