SM JADUBALA DASI Vs. UPENDRA NATH SAHA

JUDGEMENT

(1.) This is an appeal against the judgment and decree of the Subordinate Judge of Malda granting probate of the will of one Jagalal Saha to the respondent Dhanapat Saha. The material facts briefly are as follows: Jagalal Saha, a Hindu governed by Dayabhag School of Hindu law, died on 28 Kartick, 1347 B.S. (the 14 November 1940). He had previously on 22nd Sravan 1346 B.S. (the 7 August 1939) executed and registered a will. Under the provisions of that will, Jagalal Saha directed that his eldest daughter, Rajmoni Dasi should receive Rs. 5 per year during her life time, and that the testator's brother's son Dhanpat Saha should pay this sum each year. The will further provided that certain specified properties be given to the second daughter, Srimati Jadubala Dassi and certain other specified properties be given to another daughter Sri Kamini Bala Dasi, and that certain specified properties be given to Surendra, son of still another daughter named Akali, There was then a provision that if the testator failed to instal in his life time an image of Siva, his brother's son Dhanpat Saha should instal such an image, and should pay for the expenses of the idol and periodical worship of the image. Lastly, there was a provision that the said brother's son Dhanapat Saha should continue to enjoy and possess all the remaining properties set out in the schedule to the will, that he should be entitled to sell the properties, that he should bear the expenses of the sradi ceremony of the testator and of the testator's wife, that he should bear the expenses of the pilgrimage, and that he should look after and protect the property of the testator, and that he should have the power to sell the property in order to pay off the debts and do other things. There was a provision that if the said brother's son failed to comply with certain conditions set out in para. G of the said will, the bequest or appointment in his favour should be cancelled.

(2.) As stated above, the testator lived nearly a year and a half after executing this will. Dhanapat Saha, the said brother's son, applied for letters of administration of the will on 10- 1-1944, in the Court of the Subordinate Judge of Maldah. His application was opposed by Jadubala Dasi, one of the daughters of the testator. It was contended by the objector that the will was not duly executed inasmuch as it was brought about by the fraud of certain persons named in the petition of objection, and it was alleged that the testator was not of sound mind and of disposing capacity at the time of the execution of the will. It was further contended that even if the will be accepted as a genuine and valid will, there was no appointment of an executor under the will, and the objector being a nearer heir than the propounder was herself entitled to letters of administration; and the petition of objection contained a formal prayer for the grant of such letters of administration to herself.

(3.) Evidence was adduced by both the parties. The learned Subordinate-Judge held that "the will was duly executed and was a valid will. He held further that the propounder of the will, Dhanapat Shaha, was appointed executor according to the tenor of the will and was entitled to probate of the same. He accordingly granted probate of the will to the propounder thereof; and it is against that order that the present appeal has been brought by Jadubala Dasi.