TIL BAHADUR KONWAR Vs. DILUSAHU

JUDGEMENT

(1.) That the short question that requires for determination in this case is as to whether on remand by this Court in LPA No. 14 of 1993 in FA. No. 18 (SH) 1989, to the trial court, with a direction to proceed with the case after ensuring the presence of the parties has been complied with, if not, whether the learned trial court is justified in decreeing the Probate Case No. 28(T) of 1981 ex-parte, in favour of the opposite party in the present case and whether the service of summon on Swaraswati wife of appellant can be construed as sufficient and can be treated as service duly served on the appellant.

(2.) In order to determine the said question, the brief facts of the case is required to be narrated. The Probate Case arises out of a will executed by late Kul Bahadur Konwar in favour of the opposite party Smti Dilu Sahu, who was admittedly not related to the said Kul Bahadur Konwar (since deceased). The said Kul Bahadur Konwar died on 23.7.78 and on28.8.81 an application forprobatetto the said will was filed before the learned Additional Deputy Commissioner, Shillong. In the said application for granting probate no one was shown as the next of kin of the deceased. Therefore, a general notice was issued and as no objection was filed, the learned court below examined the opposite party Dilu Sahu and two other witnesses and an ex-parte order was passed on 12.10.81 granting probate of the will.

(3.) Knowing the facts of ex-parte order granting probate of the alleged will, the present appellant filed an application on 26.2.1982 for cancellation of probate contending inter alia, that the executing of the will used to live with Til Bahadur, present appellant till his death and late Kul Bahadur was not mentally and physically fit to execute the will since he was addicted to drinks and as such he was suffering off and on in his later part of his life. He further contended that the opposite party in collusion with her husband got the forged will executed and fraudulently and surreptitiously managed to take the ex-parte order of probate, by suppressing the material facts knowing fully well that the appellant is the brother of Late Kul Bahadur Konwar and therefore prayed for cancellation of the probate.