GULESTA KHATUN AND ANOTHER Vs. IQBAL HUSSAIN

JUDGEMENT

(1.) Heard Mr. Shiladitya, learned counsel appearing for the appellant as well as Mr. H.K. Baruah, learned counsel appearing for the respondents.

(2.) This is an appeal under section 384 of the Succession Act, 1925, against the judgement dated 28.02.2005 passed by the learned Ad-hoc Additional District Judge No. 3, Kamrup (M), Guwahati in Probate T.S. No. 1/1993, by which the application for grant of probate or letter of administration under section 276 of the Succession Act, 1925, which was converted to a suit was dismissed.

(3.) The appellants case is that the appellants No. 1 to 3 along with one Md. Zahirul Hussain were the petitioners in Misc.(P) Case No. 293/1991, which was for grant or letter of administration in respect of properties left behind by Late Samsul Hussain. Samusl Hussain died on 05.06.1979 leaving behind his last Will which was registered with sub-Registrar at Guwahati on 22.06.1964, thereby bequeathing his properties to Musstt. Anowara Khatun, Ms. Gulesta Khatun (appellant No. 1), Ms. Parida Khatun (appellant No. 2), Ms. Dilowera Begum (appellant No. 3), Zahirul Hussain (plaintiff No. 4) now represented by his legal representative, Ms. Milan Begum (appellant No. 4). The probate case was filed on 23.08.1991, wherein mention was made that one Iqbal Hussain (respondent herein) had filed T.S. No. 105/1988 for partition of the suit property. The application was contested by the respondent herein. Therefore, Misc. (P) Case No. 293/1991 was converted to a regular suit and renumbered as Probate T.S. No. 1/1993. The respondent/objector filed his written objection on 14.02.1992, denying that Will in question was the last Will. However, claimed that the Will is forged and fraudulent registered by imposter and was not attested by the witnesses. It was further claimed that the Testator was suffering from mental disorder, developed lunacy and mental derangement since the year 1961 till his death and he had no mental capacity to execute the Will and an application for grant of probate was not maintainable having filed 13 years from the death of Samsul Hussain. It was held that the more than 3 years after filing T.S. No. 105/1988 filed for partition of property left by Late Samsul Hussain, this forged Will was manipulated and prepared as counter application to the suit for partition. It was stated that Will was not properly attested.