POMI BORA Vs. TULAI HAZARIKA

JUDGEMENT

(1.) Heard Mr. H.P. Barman, learned Counsel for the Appellant. Also heard Mr. T.J. Mahanta, learned Counsel for the Respondents.

(2.) The brief facts material for the purpose of disposal of this appeal, are that the Appellant's father, during his lifetime, bequeathed his properties in favour of the present Appellant by executing a registered Will on 23.01.1967. The deceased Bejia Bora had 4 daughters. He had no son. The present Appellant is the 3rd daughter. The Will was scribed by one Khetekeswar Das (since deceased) in presence of attesting witnesses, namely, Bhekula Pathak (since deceased) and Kanthiram Neog. The testator bequeathed his whole properties including landed properties to the Appellant in total exclusion of 1st and 2nd daughters who were given into marriage during his lifetime. The 4th daughter i.e. youngest one, who was minor at that time, was living with the Appellant. In the Will in question, a condition was made that the present Appellant shall give her youngest sister (daughter of testator), namely, Smt. Kiron Bora in marriage and give her dowry and streedhan failing which 1/4th of their father's properties would be received by Kiron Bora. The testator Bejia Bora died in the year 1990 at the age of 87 years. The propounder Smti. Pomi Bora filed a probate petition before the Court of learned District Judge, Golaghat, which was registered as Probate Petition No. 9/93 under Section 276 of the Indian Succession Act, 1925. Smti. Tulai Hazarika, eldest daughter of late Bejia Bora and Sri Gokul Hazarika, S/o Smti. Tulai Hazarika and grandson of deceased Bejia Bora, contested the case by filing written objections. The Appellant examined herself as PW-1. She also examined Kanakeswar Pathak, S/o Bhekula Pathak, attesting witness as PW-2 and Sri Dimbeswar Karmakar, a colleague of scribe late Ketekeswar Das as PW-3. The learned District Judge, upon consideration of the oral and documentary evidence of the parties, rejected the probate petition vide impugned judgment and order dated 03.07.1998. Being highly aggrieved and dissatisfied with the same, the propounder Smti. Pomi Bora has filed this instant appeal.

(3.) Mr. Barman, learned Counsel for the Appellant, submits that execution of the Will has been proved by examining P Ws-2 and 3 as required under Sections 68 and 69 of Indian Evidence Act, 1872. The writer of the Will and attesting witnesses are not available as they have already expired and in their place, P Ws-2 and 3 were examined. They are natural witnesses inasmuch as PW-2 is the son of attesting witness late Bhekula Pathak and PW-3 is a colleague of the scribe of the Will in question. The above P Ws know the handwriting and signature of the scribe and attesting witness as per their deposition. According to the learned Counsel, once the execution of the Will has been proved without any objection, there is no ground for rejecting the prayer for probate and the learned District Judge has committed serious error of law in rejecting the probate petition by passing the impugned judgment and order dated 03.07.1998. In support of his submissions, he has relied upon Ishwar Deo Narain Singh v. Smti. Kamta Devi, 1954 AIR(SC) 280 wherein it has been observed that the probate Court is concerned only with the question as to whether the document put forward as the last Will and testament of a deceased person was duly executed in accordance with law and whether at the time of execution, the testator had sound disposing mind and the question as to whether a particular bequeath is good or bad, is not within the purview of the probate Court. The learned Counsel particularly refers to provision under Section 69 of the Indian Evidence Act, 1872, which provides for manner of proving a document where no attesting witness is available. The provision under the aforesaid section having been fulfilled or complied with and the execution of the Will having stood proved, the Respondents cannot challenge the Will in question and for that matter, granting of probate to the Appellant.