PARESH CHANDRA BHOWMICK Vs. HIRALAL NATH

JUDGEMENT

(1.) In this appeal by special leave the question is whether the High Court Division was well founded in law and fact in reversing the trial Court's order granting probate of a Will on the ground that execution of the will was not proved to the satisfaction of judicial conscience of the Court even if statutory requirements as to proof of execution of the will were outwardly found fulfilled.

(2.) The appellant, Paresh Chandra Bhowmick, is executor of the will in question namely, the will Ext. 1, purportedly executed by his grand-father-in-law, Haricharan Nath on November 3, 1963 corresponding to 16th, Kartick 1370 B.S. By this will the entire property of the testator was bequeathed to the appellant who is husband of Indu Prova, grand-daughter of the testator through his only son Rajendra who is admittedly an Indian national. Case of the appellant propounder is that Haricharan Nath, aged about 75, was attacked with partial paralysis in the right side of his body about three months before his death and that his only son Rajendra having migrated to India about 15 years ago, Rajendra's daughter and her husband Paresh remained in Pakistan and as such they looked after him. Haricharan had a second wife, Krishana Moni Devi, defendant No. 2, but he did not consider her to be the proper person to look after his property on his death. On 3 November 1963 Haricharan Nath executed the will in presence of members of the locality, both Hindus and Muslims, by putting his left thumb impressions on the document; though he was literate he could not sign his name because of partial paralysis; and that this was the last will of Haricharan. Three months thereafter, that is, on 5 February 1964, Haricharan died in his house in village Kerua, district Noakhali. The appellant filed an application being Miscellaneous Case No. 136 of 1966 praying for a Probate of the Will but it was dismissed for default. Thereafter he filed Title Suit No. 5 of 1976 (Probate) before the District Judge, Noakhali, seeking probate of the will.

(3.) The suit was contested by Krishna Moni Devi, respondent No. 2 who seriously disputed the will contending that her husband did not execute any will but the disputed will was ante-dated having been fabricated and forged after his death by Paresh in collusion with the scribe. Her further contention was that Hiralal, one of the sons of Rajendra, did not migrate to India but was a Pakistani national and resided with her and her husband in the same house and as such Hiralal was the proper person besides her to look after the property of her husband. She also contended that the property was all along in her possession.