REBA RANI DAS Vs. SAUDAMINI DAS

JUDGEMENT

(1.) Heard Mr. S.K. Ghosh, learned counsel appearing on behalf of the appellant/petitioner and also heard Mr. F.U. Borbhuya, representing the respondent Nos. 2 & 3. 1. The respondent No. 1 who is one of the daughters of Late Lochan Moni Das, as submitted by the learned counsel never contested in the Misc. (Probate) Case No. 102/2000 and as such on the prayer of the present appellant her name was struck out vide order passed by this Court on 06.03.2017.

(2.) The present dispute is with respect to a probate of a will executed by the father of the appellant and the respondent Nos. 2 & 3 and the maternal grandfather of respondent No. 4. The appellant, as the petitioner filed an application for granting probate of a will alleged to have been executed by her father Late Lochan Moni Das bequeathing the property mentioned therein in favour of the present appellant/petitioner. The said petition was resisted by the present respondent Nos. 2 & 3 by bringing the allegation that the stamp paper used in preparing the will was purchased by some interested person and got it signed by Lochan Moni Das in some opportune moment on some pretext and got it to their advantage. That the appellant/petitioner never informed the respondent Nos. 2 & 3 about the execution of the will by their late father. The said will was created with the help of their scribe and Barindra Kumar Das, a person from the neighbour who managed Abdul Gani and Nizamuddin, both advocate clerks. The said will is a manufactured one and in order to deprive the respondent Nos. 2 & 3. Accordingly, they objected in granting the probate of the said will in favour of the executor, the present appellant/petitioner.

(3.) The learned Court below, on the basis of the evidence adduced by the parties to the proceeding dismissed the petition vide judgment dated 08.02002 passed in Misc. (Probate) Case No. 102/2000. The learned Court below while dismissing the said petition came to the finding that the respondent opposite parties never challenged the signature of the testator, Late Lochan Moni Das. It is also held by the learned Court below that the PW-2, Sirajul Haque is the writer of the said will, exihibit-1. The said PW-2 is a neighbour of testator, Late Lochan Moni Das and the said will was executed on 07.02.2000 which was un-registered one. However, the learned Court below held that the presence of PW-3, Nizamuddin Choudhury, another advocate's clerk at the time of writing the will to be suspicious on the ground that the said PW-3 had his residence six miles away from the one of the testator and the reason as to why the said PW-3 had visited the house of the testator in search of PW-2 on 07.02.2000 was not explained. The said suspicious circumstance could not be explained by any cogent reason.