ON THE DEATH OF HARMUJ ALI BORA (PETITIONER) HIS HEIRS MD. JALIHUR RAHMAN BORA AND OTHERS Vs. MUSTT. SAMNUR BIBI AND OTHERS

JUDGEMENT

(1.) This is an appeal against the judgment and order dated 21-5-82 passed by the Additional District Judge, Kamrup, Gauhati in Probate Title Suit No. 15 of 1963 (No. 1 of 1980) whereby the application for probate was dismissed.

(2.) The facts of the case may be briefly stated as under. The appellant-petitioner, Harmuj Ali Bora, filed an application for grant of probate of the will annexed to the petition in respect of land measuring 56 B. 2 K. 15 Lechas. The will was executed by his father late Gomi Bora who died on 30th April, 1961. Besides the appellant-petitioner, Gomi Bora left behind the following other heirs: <FRM>JUDGEMENT_20_LAWS(GAU)3_1990_1.html</FRM> The case of the appellant-petitioner was that the will was executed by his father with the consent of the two other sons, named above. It was duly registered and the consent of the wife as well as the two daughters had also been obtained by the executant.

(3.) An objection was filed to the application for probate on the grounds, inter alia, that no will was executed in favour of the appellant-petitioner; that the alleged will was not duly attested; that it was a forged one; that it was made without the consent of the other heirs which was against the principles of Mahomedan law. On the aforesaid grounds, it was contended that no probate could be granted to the appellant. The learned Additional District Judge framed a number of issues, examined five witnesses for the petitioner and one for the objector and on consideration of the facts and circumstances of the case, the evidence on record and the submissions of the parties, held that the will was not valid as the consent of the other heirs to the execution of the will was absent; that even after the death of the testator the other heirs did not give their consent which was evident from the fact that they filed objections against grant of probate; that the attestation by the two witnesses was not proved which according to it was an essential pre-requisite of a valid will under the Mahomaden law. The learned trial Court, therefore, decided all the issues (except issue No.4 which was not pressed) against the appellant-petitioner and dismissed the application for probate. Against the aforesaid judgment and order the present appeal has been filed.