ERIC PAZO Vs. JORGAY NAMKA

JUDGEMENT

(1.) The Respondent No.2 sought Probate of Will by filing a petition before the Court of the Learned District Judge, East and North Sikkim, at Gangtok, which was registered as Civil Misc. Case No.67 of 2011. Notice thereupon was issued to the General Public. The Will executed by Late Passang Obed Pazo Lepcha (hereinafter, the 'testator'), was received by the Court, under sealed cover, from the Office of the Sub-Registrar, East District, Gangtok, as evident from the Order dtd. 10/6/2011, of the Learned Trial Court. On 9/10/2012, Civil Misc. Case supra was withdrawn by the Respondent No.2 on grounds of her ill-health. On 27/5/2015, a Petition was filed by Jorgay Namka (the Respondent No.1 herein), Executor of the Will of the deceased testator, registered as Probate of Will No.2 of 2015, before the same Court and Notice issued to the General Public/Opposite Parties. The Opposite Party No.5 (the Appellant herein), viz., Eric Pazo, opposed the Will, Exhibit 2, inter alia on grounds of mental and physical infirmity of the testator, suspicious circumstances of the execution of the Will and customary laws which prevented the testator from bequeathing the properties. In view of the opposition, the Learned Trial Court vide its Order dtd. 19/11/2015, observed that the application would be dealt with as a Regular Civil Suit between the parties, with opportunity afforded to the parties to lead evidence in view of Sec. 295 of the Indian Succession Act, 1925 ('Succession Act', for short).

(2.) Before proceeding further with the matter, to bring clarity with regard to the parties, their order of appearance before the Learned Trial Court in Probate of Will No.02 of 2015 and before this Court are being delineated hereunder;

(3.) Raising his objection to the Will before the Learned Trial Court through his mother, his constituted attorney, the Appellant in his averments inter alia gave a brief history of the properties listed in the Will, which according to him, were ancestral properties and incapable of being bequeathed by Will, as per the customary laws of the Lepchas. That, the testator was not only visually challenged at the time of execution of the Will, but was also suffering from numerous other diseases which incapacitated him mentally. The testator was confined by his second wife, Respondent No.2, who stood to inherit the properties in the absence of her son and daughter, provided, she did not remarry. Denying the execution of the Will, it was averred that the testator"s deteriorated physical and mental condition is apparent from a bare perusal of the application, dtd. 13/8/2008, purported to have been made by him, where he sought deputation of an official to his house for registering the Will, as he was physically incapable of appearing before the concerned official. The petition not being tenable therefore be dismissed.