JAYANTI GOGOI Vs. PRANATI DUARA

JUDGEMENT

(1.) This appeal has arisen out of judgment and decree, dated 17-9- 1994, passed by the learned District Judge, Nagaon, in Title Suit No. 4 of 1992, whereby the plaintiffs suit was dismissed on contest with costs.

(2.) In a nutshell, the case of the plaintiff- appellants reads as follows : On 18-2-1931, Ambikeswar Phukan, a muzadar, executed a will (Ext. 2) bequeathing his properties mentioned in the will to Smt. Labanya Prava Gogol, who was also named as executor of the will. The testator, namely, Ambikeswar Phukan died as far back as on 22-10-1933. The executor, namely, Smt. Labanya Prava Gogoi filed an application seeking probate of the will as late as on 30-7-73 i.e., after 40 years of the death of the testator. This application was, in course of time, registered as Misc. (Probate) Case No. 10/1973. This application was renumbered as T.S. 10/73 and the same was contested by the respondents. During pendency of the said suit, the executor aforementioned died. The suit was accordingly dismissed by order, dated 25-7-78. Long 13 years thereafter, the predecessor-in-intern est of the present appellants, namely, Suresh Gogoi, who was the only heir of deceased Smt. Labanya Prava Gogoi aforementioned, filed another application, on 11-4- 1991, seeking letter of administration in respect of the said will. This application came to be numbered as Misc. L.A. Case No. 70/91 and the same was, latter on, renumbered as T.S. 04/1992 and contested by the present respondents. The applicant, Suresh Gogoi, claimed that he, being the only heir of the said executor and beneficiary of the will, is entitled to letter of administration as sought for by him.

(3.) The respondents contested the suit by filing their written statement, wherein it was contended, inter-alia, that there was no cause of action for the suit, the suit was not maintainable, the suit was time-barred and also barred by res judicata, the case of the respondents being, in brief, thus : Ext. 2 was never executed by the alleged testator, Ambikeswar Phukan, and that the said will was a forged document. Deceased Smt. Labanya Prava Gogoi aforementioned was not the daughter of the said testator and she could not have been legatee of his will.