PRADIP SAIKIA Vs. SUWALA SAIKIA

JUDGEMENT

(1.) Heard Ms.S.Senapati,learned counsel for the appellants. This Appeal has been preferred against the judgment and order dated 23-12-1998 passed by the learned District Judge, Sibasagar in Misc (P) Case No. 40/90 wherein the prayer for grant of probate of a Will sought by the appellants was rejected.

(2.) The facts in brief as gathered from a conjoint reading of the pleadings exchanged by and between the parties may be noticed. Appellants are the nephews of one Late Pakaram Saikia who was the father of the respondents. Late Pakaram Saikia died on 6-1-1990. According to the appellants, the said Saikia on 28-11-1989, before his death, executed his last Will (Ext. 1) in respect of his entire movable and immovable properties of which there was a land measuring about 29 Bighas, 4 Kathas, 6 Lochas in favour of the appellants. After the death of late Saikia, the appellants moved the learned District Judge,Sibasagar by tiling an application under Section 376 of the Indian Succession Act, 1925 (for short the Act) through Misc (P) Case No. 40/90 for grant of probate of the Will dated 28-11-1989.

(3.) Objecting grant of any such probate, the respondents, all being four daughters of the testator late Saikia, filed a joint written objection pleading inter alia that their deceased father did not execute any valid last Will and the purported Will of the deceased father was obtained by the appellants fraudulently with the sole intention to deprive his legal heirs i.e. the respondents of their rights on inheritance over the properties of their deceased father as the testator had no son. At the time of alleged execution of the Will, the testator was aged about 90 years who lost eye sight and became mentally unstable. On the other hand, during his lifetime, he himself managed the properties with the help of his daughters. After marriage, though they lived separately away from their father, they were visiting their father who maintained fatherly love and affection with his daughters. Even on several occasions, he expressed his desire to donate his properties to his daughters. The appellants taking advantage of his old age and ill health, got the Will executed in their names mala fide and with ulterior motive for making wrongful gain and causing wrongful loss to the respondents. 3A. The learned District Judge on consideration of the pleadings of both the parties framed as many as three issues which are as follows : "1) Whether the alleged Will is validly executed or not? 2) Whether the alleged Will is fraudulently obtained? and 3) Whether the petitioners are entitled to the Probate, as prayed for?"