KAUSHAL KUMAR DAS Vs. SMTI NILIMA MUDOI

JUDGEMENT

(1.) This is an appeal under Sec. 384 of the Indian Succession Act, 1925 challenging judgment and order dated 30.04.2010 passed by the learned Additional District Judge (FTC), Nagaon in T.S. (Probate) No. 54/2009 and thereby allowing the probate of Will dated 11.04.2007 claimed to have been executed by one Dhaneswar Bania.

(2.) The aforesaid probate proceeding was initiated on the basis of an application filed by executor Nilima Mudoi claiming that her father Late Dhaneswar Bania (hereinafter referred to as 'the testator') had executed a registered Will on 11.04.2007 thereby bequeathing his property in favour of two persons, namely, the executor herself and her brother's son, Sri Debastuti Das. It was stated in the application that testator was survived by two sons, namely, Sri Pabitra Kumar Das and Sri Kushal Kumar Das, one daughter Smt. Nilima Mudoi and a grand-son, Sri Debastuti Das as legal heirs. Sri Kushal Kumar Das, one of the two sons of the testator, filed objection raising dispute as to execution of Will and claiming that suspicious circumstances were present surrounding alleged execution of the Will. On such objection, the application filed under Sec. 276 of the Indian Succession Act was converted in the form of suit under Sec. 295 of the same Act and the learned court proceeded to decide the same by following procedures of a suit as far as practicable.

(3.) On the rival contentions of the parties, the learned court framed following five issues:-