NANTU DEY Vs. SUKLA DHAR AND ORS.

JUDGEMENT

(1.) THIS appeal under Section 299 of the Indian Succession Act, 1925 has been preferred challenging the probate granted by the learned Additional District Judge, Cachar, Silchar in Testamentary Suit No. 26 of 1988 by the impugned judgment dated 14.10.1999.

(2.) THREE legal heirs of Late Dilip Ranjan Dhar filed an application under Section 276 of the Indian Succession Act before the learned Additional District Judge, Cachar at Silchar on 6.1.1988 leading to registration of Misc. (Probat) Case No. 8 of 1988. Of course in the petition, deceased Dilip Ranjan Dhar was shown as petitioner No. 1. In the application, the name of near relation of the testatrix were mentioned at para -9 as Sri Sankar Dhar Son of Late Dhirendra Dhar, Sri Nantu Dey, Son of Late Nagendra Ch. Deb and Smti Babul Bala Deb, widow of Late Kiran Deb. It was stated in the application that Prabashini Dey who was the wife of Late Sachindra Mohan Dey had executed a registered Will on 16.11.1967 bequeathing all her properties in favour of her brother Dilip Ranjan Dhar. This beneficiary of the Will pre -deceased the testatrix. Subsequently, on 23.5.1982, the testatrix also died issueless. About six years after her death, the application for probate was filed by the legal heirs of deceased beneficiary of the Will praying for probate thereof. The near relation of the testatrix mentioned above submitted objection questioning the legality and validity of the Will, genuineness thereof etc. In para -2 of the written objection, it was claimed that the probate application is barred by limitation. It is necessary to mention here that in probate application referred to above there was no explanation as to why the same was not presented within 3 years of arising of the cause of action upon death of the testatrix. However, it was stated in para -11 thereof that petitioner had earlier filed Misc. Case No. 14 of 1983 for grant of probate leading to registration of Misc. Case No. 14 of 1983 but the same was dismissed for default on 4.9.1986. It is not mentioned as to why inspite of seeking remedy for restoration of the application, a fresh application was filed nearly after expiry of six years from the date of death of the testatrix. Be that as it may, no issue was framed on the point of limitation and the learned court having found that the application under Section 276 of the Indian Succession Act had already been opposed, got the same converted into Testamentary Suit No. 26 of 1988 by operation of Section 295 of the Indian Succession Act. The learned court framed as many as six issues and relegated the parties to lead their respective evidence. The issues framed by the learned trial court are quoted below:

(3.) I have heard Mr. H.A. Sarkar, learned counsel for the appellant and Mr. D.N. Bhatacharya, learned counsel for the respondents. I have also perused the deposition of the witnesses and the exhibits adduced by them. However, it appears that the appeal can be disposed of on a short point as follows: