NARAYAN CHANDRA MANDAL Vs. ASHA MANDAL AND ORS.

JUDGEMENT

(1.) Judgment dated 04.09.2004 passed by the learned District Judge, Kokrajhar in Misc. P. Case No. 74 of 1998 has been called in question in this appeal. By that judgment the learned trial court dismissed the application filed under Section 276 of the Indian Succession Act, 1925. The learned Court held that Will was never executed by the testators. One Narayan Chandra Mandal as petitioner approached the learned trial court by filing an application on 28.10.1998 claiming that his father Pagal Chandra Mondal @ Pagal Chand Mondal died at Kokrajhar on 25.08.1993 and it is stated that prior to his death on 09.08.1990 Pagal Chandra Mondal @ Pagol Chand Mondal had executed a Will on 03.08.1990 in presence of the attesting witnesses. By that Will the property described in Schedule-A land to the petition was bequeathed to the younger son of Narayan Chandra Mandal, value of which was to the tune of Rs. 30,000/-. He further stated that Pagal Chandra Mandal left behind two sons including himself and daughter Sarola Mondal. But the application does not contain any explanation as to why the same was filed on 28.10.1998 although the cause of action of the petition had arisen immediately after death of Pagal Chandra Mondal on 25.08.1993. The learned trial court entertained the application and issued notice to the other side apart from general citations. Sudhir Mondal elder son of the testator appeared and submitted objection challenging the correctness or otherwise of the probate petition. It was claimed that no such Will was ever executed by the testator during his lifetime and that it was barred by law. During pendency of the proceeding Sudhir Mondal died and thereafter, his legal heirs were brought on record. In Paragraph-4 of this objection it was specifically stated that probate petition was filed after long delay.

(2.) On the basis of said rival contentions of the parties, the learned trial court framed as many as three issued and the same are quoted below:

(3.) The proceeding thus got automatically converted in the form of a suit by operation of Section 295 of the Indian Succession Act, 1925. The petitioner Narayan Chandra Mandal examined three witnesses including himself. The attesting witness Moheswar Saha was examined as P.W.3 while scribe Surendra Mohan Roy was examined as P.W.2. All the witnesses were cross-examined and discharged. Will was exhibited as Exhibit-1. The learned trial court after considering all the materials available on record decided all the issues in favour of the respondent/objector and against the petitioner. It held that testator Pagal Chandra never executed such Will and he had no capacity to execute the Will either. Having so found, it was held that petitioner is not entitled to probate of the Will and with these findings the probate proceeding was dismissed with cost of Rs. 20,000/-, by judgment and order dated 04.09.2004. It is this judgment which has been brought under challenge in the present appeal under Section 299 of the Indian Succession Act, 1925.