MANJUSHREE CHAKRAVORTY Vs. BIMLENDU DAS

JUDGEMENT

(1.) This letters patent appeal under clause 15 of the letters patent arises out of judgment dated 29.1.93 delivered by a Single Judge of this Court in M.A. (F) 24 of 1985, reveling trial Court's Judgment dated 25,2.35 passed in testamentary Suit No. 4/82. The facts of the case are that Late Dr. Amarendra Kumar Chakravorty who was the husbaad of appellant No. 1 Smti. Monjushree Chakravorty and father of appellant No.2 Smti. Mousumi Chakravorty both resident of East Maligaon, Guwahti was employed in the Railways as a Doctor and at the material time they are residing in railway quarter at Karimganj where he died on 2.2.81. He executed a will ext. I on 28.1.81 claimed to be the last will of Dr. Chakravorty, It was registered on the same date. Apart from the appellants he left behind his brothers Arabinda Chakravorty and Anil Kumar Chakravorty. By the said will Damalendu Das an Advocate practising at Karimganj respondent No. 1 herein was appointed as executor. Just after 5 days of execution of the will doctor Amarendra Kumar Chakraborty died on 2.2.81. After his death the executor filed an application for grant of probate of will in the Court of District Judge, Cachar, Sichar which was initially registered as Misc. Case No. 141/81 but subsequently re-numbered as testamentory Suit No. 4/82. The appellants denying the execution of the will in question also challenged it as forged. It was not returned at the instance of her husband nor was it his last will in short the will was false and febricated document created by the propounder in collusion with brothers of Dr. Amarendra Kumar Chakravorty for their own benefit and to grab the entire property of her husband depriving her and her minor daughter appellant No. 2 of their legitimate rights. She also challenged the execution of the will on the ground that her late husband was not in a sound state of mind and had no capacity to make the will in question. At the time of which alleged execution he was in a helpless condition under the dominant influence of his brother who took full advantage of bis mental incapacity. It was her allegation that in the last days of his husband's illness he was not given proper treatment. On the other band he was forced to sign the alleged will. On rival pleadings the trial Court framed 5 issues.

(2.) The applicant/respondent examined 5 witnesses in support of his claim while the appellant examined 4 witnesses on her side. The trial Court on consideration of the evidence on record dismissed the suit. The respondent preferred an appeal and learned Single Judge of this Court by the impugned judgment has allowed the same setting aside the judgment of the trial Court and granted probate as prayed for. Mr. Lahiri learned Sr. Counsel appearing for the appellant argued that the will was shroud suspicion that the propounder was a beneficiary. The propounder, a practising Advocate in a dominating position and a beneficiary under the will has played an active role in getting the will executed and registered depriving the appellants of their legitimate rights. The appellant No. 1 being the wife has been totally dis-inherited under the will and so far as the minor daughter is concerned and from vague ambiguous provision that too under absolute control and direction of the propounder has been made. According to him the learned Single Judge has failed to notice the suspicious circumstances in executing the execution and register of the Will. He therefore urged for setting aside the impugned appellate judgment and allowing the appeal. It is significant to note that despite service of notice the propounder executor of the Will, respondent has not chosen to enter apperance before us.

(3.) Few significant facts as they emerge from the respondent's pleaded case are - that the appellant wife Smti. Manjushree, left her ailing husband on 20.12.80 along with her minor daughter. It is the propounder's allegation that she took away all valuable ornaments and cash with her. It was for this reason that the testator Dr. Amarendranath lost all faith in her and decided not to give any share in the properties. The Will was executed on 28.1.81. The executor, was directed under the will to deposit all money as described in the third Schedule of the Will to keep the amount in fixed deposit and the interest earned thereon was to be spent by the executor on religious activities and the marriage of daughter of the testator's brothers while the testator's minor daughter would be entitled to the entire amount of fixed deposit on attaining majority provided she leads a proper and nice family life. Thus the fate of the minor daughter was in the hands of the executor. It was the executor who was to manage the properties and for that he was to get 10% of the total properties. With the above interest in. the properties left by Dr. Amarendranath, the executor/ propounder of the will approached the District Court for grant of Probate. It was his positive case that the Will Ext. 1 was executed by Dr. Amarendranath at his Railway Quarter at Karimganj on 28.1.1981 in presence of witnesses and registered on the same day on Commission at the said Railway Quarter. The question looms large why Amarendranath was brought to Railway Quarter when he had already been shifted by the brothers to his Subhash Nagar house five days before his death as per PW-3, and on 25th of December as precisely stated by DW-1 and not controverted.