ABHOY CHARAN NATH MAZUMDAR Vs. RAIMYA DEVI

JUDGEMENT

(1.) THIS propounder's probate first appeal is from the judgement and decree of the District Judge, Cachar at Silchar in Testamentary Suit No.2 of 1972 refusing probate of the Will purported to be executed by Dulal Chandra Nath Muzumdar on 26-11-1948. For proper appreciation of the circumstances surrounding the Will the family genealogy is given below:

(2.) THE plaintiff-appellant Abhoy Charan Nath Mazumdar filed Testamentary Suit No.2 of 1972 for probate of the aforesaid Will as its executor. The Testator Dulal Chandra Nath Mazumdar died on 12-1-1949 and the plaintiff-appellant was granted probate by the District Delegate, Cachar on 27-8-49, but the probate was not actually laken out until 27-5-71 after his father, Atul Chandra Nath Mazumdar, died on 17-12-1965. The defendants-respondents filed an application under section 263 of the Indian Succession Act, hereinafter referred to as 'the Act' challenging the will as a fraudulent document and praying for revocation of the grant of probate on the ground that it was made without proper citation; and by order D/- 31-8-71 the District Delegate revoked the probate on that ground. The plaintiff-appellant thereafter applied for revival of the original probate case being Misc. Case No.51 of 1949 issuing proper citations to the objectors at which the defendant-respondent No.7, Raimya Devi, and defendant-respondent No.2, Anil Chandra Nath Mazumdar, defendant-respondent No.6, Minati Nath and defendant-respondent No.9, Jogomaya Devi being the widow, sons and daughter, respectively of the deceased Atul Chandra Nath Mazumdar, the only son of the testator, contested the application filing written objections whereupon the misc. case was registered as a testamentary suit. Defendants Nos.7 and 8, being two other sons of Atual Chandra Nath Muzumdar did not contest.

(3.) ON the pleadings the following issues were settled: