MAHABIR SAH @ MAHABIR PRASAD SAH Vs. TAPAN SAHA

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 2nd September, 1995 passed by District Judge, Sahebganj in Probate Case No. 2 of 1986/Title Suit No. 16A of 1989 whereby and whereunder the learned Court below granted probate in favour of petitioner -respondent. The appellant was objector -defendant in the aforesaid probate case cum title suit and respondent in this appeal is petitioner -plantiff.

(2.) THE fact of the case in brief is that petitioner -respondent filed a petition for grant of probate under Section 276 of the Indian Succession Act, stating therein that one Sabitri Sahuain, widow of late Baijnath Sah died issueless on 29.4.1985 and before her death she executed a Will in favour of the petitioner -respondent. It is stated that at the time of execution of the Will she was of sound mind and possessed a good health and executed the Will on 14.3.1985 out of her free Will in presence of witnesses. It is submitted that original Will was unfortunately misplaced but the certified copy of that Will is available. It is stated that petitioner -respondent is the maternal uncle's son of the testator and the properties mentioned in the said Will have been bequeathed in the name of the petitioner -respondent. Schedule A contains the description of the properties, which have been given by Will and the amount of liability and other lawful deduction of the said testator is given in Schedule B and, therefore, a paper was made by the petitioner -respondent for grant of probate in his favour.

(3.) ON the pleadings of the parties, the learned District Judge framed the following issues for determination in the suit.