BHABANANDA DEKA Vs. UTSAB DEKA

JUDGEMENT

(1.) BY the impugned order, dated 30. 03. 2000, passed, in Misc. (Probate) Case No. 47/1996, the learned District Judge, Barpeta, dismissed the case by refusing to grant probate. Aggrieved by the dismissal of their application for probate, the petitioners have preferred this appeal.

(2.) THE case of the petitioners-appellants, in the probate proceeding, was, in brief, thus: Sobharam Deka's son, Sarbananda Deka, pre-deceased his father; whereas petitioner Nos. 1 and 2 are sons of the said Late Sarbananda Deka and petitioner No. 3 his widow, petitioner No. 4 is one of the sons of Late Sabharam Deka. The opposite party to the proceeding are all sons of Late Sabharam Deka, the opposite No. 3, namely, Sri Bhogirath Deka, being one of the beneficiaries under the Will, which was executed by Late Sabharam Deka, during his lifetime, bequeathing the properties, described in the Schedule to the Will, in favour of the petitioners and opposite party No. 3. Late Sabharam Deka left his other properties in favour of his remaining heirs.

(3.) THE respondents herein contested the probate proceeding by filing their objection, their case being, briefly stated, thus: The Will, in question, was not executed by Sabharam Deka, for, Sabharam Deka was not mentally and physically capable of executing any Will inasmuch as Sabharam Deka had been a patient of hypertension and remained bed-ridden for about 10 years before his death. On a previous occasion also, the petitioners had instituted a probate proceeding in the Court of the District Judge, Kamrup, which had given rise to Misc. (Probate) Case No. 272/82 and this case was dismissed for default on 07. 07. 84; but suppressing this fact, the petitioners have, once again, sought for grant of probate of the said Will, the Will, in question, being a fraudulent one.