Research › Search › Judgment

Gauhati High Court · body

2007 DIGILAW 204 (GAU)

Sanjeev Goswami v. Kanika Devi and Ors.

2007-03-13

H.N.SARMA

body2007
1. This First Appeal arises out of judgment and order dated 22.6.1998 passed by the learned District Judge, Kamrup, Guwahati in Probate M.C. Case No. 188/97 thereby creating a probate of the will as prayed for by the respondents. 2. I have heard Mr. K.N. Choudhury, learned senior counsel appearing on behalf of the appellant. None appears for the respondents. The connected records which were called for from the learned court below have also been perused. 3. To put in short the facts relating to filing of the present appeal, inter alia, are that the respondents herein are the daughters of Late Prafulla Goswami, the elder brother of Late Tarun Goswami who expired on' 6.9.1996. Late Taru Goswami expired without leaving any issue, his wife also pre-deceased him. Late Tarun Goswami had certain immovable properties and he executed a will on 10.9.1994 bequeathing those as mentioned in the schedule of the will in favour of the respondents who happened to be the daughters of his elder brother. As per the said will the respondent No. 1 was given about 1 K 5L of land out of 3 K 5L towards the extreme south of the scheduled properties. Likewise the respondent No. 2 has been bequeathed IK 5L of land in the middle portion and the respondent No. 3 was bequeathed with IK 5L of land situated in the northern portion of the schedule properties along with a portion of the Assam Type house standing in the respective portion of the bequeathed land. After the death of the testator, the respondents filed the probate case No. 188/97 in the court of learned District Judge, Guwahati for obtaining probate of the will executed by late Tarun Goswami. 4. Upon receipt of the application probation the learned trial Judge vide order dated 1.5.1997 directed to issue notice and accordingly notice was issued to all the persons as mentioned in the petition as well as a general citation was also issued to all concerned. A copy of the notice was also affixed in the last evidence of the executor. The notices were duly served on 18.7.1997 and 19.8.1997. At that stage the appellant on 26.8.1997 by filing petition No. 682/97 lodged a caveat expressing his intention to contest the proceeding and prayed time to file objection and also prayed for furnishing him a copy of the will. The notices were duly served on 18.7.1997 and 19.8.1997. At that stage the appellant on 26.8.1997 by filing petition No. 682/97 lodged a caveat expressing his intention to contest the proceeding and prayed time to file objection and also prayed for furnishing him a copy of the will. The learned trial Judge vide order dated 26.8.1997 granted time till 22.9.1997 for filing objection by the appellant On which date a copy of the probate petition as well as a copy of the will was served upon the appellant and the case was fixed on 20.11.1997 for filing objection. Although thereafter the case was fixed on 20.11.1997,3.1.1998,2.2.1998,27.2.1998 no objection was filed by the appellant. The learned trial Judge thereafter fixed the case for hearing. 5. During the course of hearing the respondents examined three witnesses including the attesting witness in support of the will. Apart from PW. 1, one of the attesting witness and the other witness also proved the will and the signature of the testator hereon. The said attesting witness, PW.2 who is a practicing Advocate deposed inter-alia that he drafted the will Ext.1 and the executor Tarun Goswami executed the same in his chamber by putting his signature in his presence, that at the time of execution he was physically and mentally fit. This witness also stated that other attesting witness, namely, Sri N.N. Choudhury who expired in the meantime also put his signature in the will as Ext.1/7. 6. PW.3 is the Advocates' Clerk who wrote out the will from the draft prepared by PW.2 in his chamber. He also proved his signature in the will as Ext. 1/7. 6. The learned trial Judge upon consideration of the materials and evidence on record and the execution of the will having been duly proved in accordance with law, vide order dated 22.6.1998 allowed the petitioner and directed to issue probate of the will. After payment of necessary stamp duty, the will was produced before the Presiding Officer, the new Presiding Officer after transfer of earlier one. But he did not signed the probate certificate rather directed to call the appellant and witnesses for further examination. 7. Being dissatisfied with the said course of action adopted by the new Presiding Officer of the court, the respondents challenged the same before the High Court in C.R.P. No. 268/99 and vide order dated 23.1.2004. But he did not signed the probate certificate rather directed to call the appellant and witnesses for further examination. 7. Being dissatisfied with the said course of action adopted by the new Presiding Officer of the court, the respondents challenged the same before the High Court in C.R.P. No. 268/99 and vide order dated 23.1.2004. The order dated 28.6.1999 passed by the learned trial court was set aside and quashed allowing the petition. Thereafter, the appeallant filed the present appeal challenging the order dated 28.6.1998 granting probate of the will in favour of the respondents with a prayer for condoning the delay in filing of the appeal. This court has condoned the delay and admitted the appeal on 29.5.2000 for hearing. 8. The main contention as raised by Mr. Choudhury, learned senior counsel for the appellant in this appeal is that the appellant is the son of Late Gopal Goswami who happened to be the adopted son of Late Hem Chandra Goswami. Late Gopal Goswami the father of the appellant being the adopted son of Late Hem Chandra Goswami and the bequeathed property being inherited from Late Hem Chandra Goswami, the petitioner has got an interest over the same and accordingly he is a necessary party of the proceeding. Mr. Choudhury further submits that the citation of the proceeding having been made excluding him, the proceeding in question was irregular and no probate of the said will could have been granted. Mr. Choudhury further submits that the appellant has got a right over the property left by Late Hem Chandra Goswami being inherited by the testator and as such will so executed by the testator Late Taran Goswami is Invalid in law. 9. I have considered the submission advanced by the learned counsel for the appellant. The claim of the appellant is that he has got right over the part of the bequeathed property in question being the heir of the adopted son of Late Hem Chandra Goswami. But the said fact has not been established on record. It is not the duty and function of the probate court to investigate and declare title in favour of any person. The appellant has not been able to show, even prima-facie, his interest over the scheduled property. But the said fact has not been established on record. It is not the duty and function of the probate court to investigate and declare title in favour of any person. The appellant has not been able to show, even prima-facie, his interest over the scheduled property. That apart, the appellant having filed the necessary caveat, the learned trial Judge granted him time to file objection but no such objection was filed by the appellant against the will at any point of time. The will in question was duly proved the proceeding though clear unambiguous and cogent evidence adduced by the PWs including the attesting witness. 10. As per section 284 of the Indian Succession Act, any person intending to object the issuance of a grant of probate is entitled to file a caveat and a caveat is a caution or warning entered in the testamentary court giving notice not to issue and grant or to take any steps in reference to the estate of the deceased without hearing the caveator. After the caveat is lodged if the caveator challenges the will he is bound to file an affidavit in respect of the caveat within the time fixed. After caveat is filed the same is taken as in the form of a regular suit in which the petitioner for probate shall pertain to the character of a plaintiff and the caveator as defendant. The petition becomes contentious after the caveator filed an affidavit in support of the caveat. The testamentary proceeding is not really as a suit, but after filing such caveat it pertains the character of a suit. 11. In the instant case, the appellant having filed caveat, he was served with a copy of the probate petition as well as a copy of the will, but the appellant preferred not to file any affidavit/objection to the granting of probate. Learned trial Judge examined three witness on behalf of the respondents/probate petitioners who duly proved the execution of the will in accordance with law. The appellant was afforded all reasonable opportunities to contest the proceeding but he did not do so and after passing of the order granting probate of the will, he filed the present appeal. Learned trial Judge examined three witness on behalf of the respondents/probate petitioners who duly proved the execution of the will in accordance with law. The appellant was afforded all reasonable opportunities to contest the proceeding but he did not do so and after passing of the order granting probate of the will, he filed the present appeal. From the record of the case as well as the statement adduced by the witnesses on behalf of the respondent it is found that the will executed by the testator has been duly proved as per law. There is no suspicious circumstances in execution of the will and in fact it. Was drafted by a practicing Advocate of the Bar who is also an attesting witness of the will and was examined as a witness. Do not find any lacuna in proving the due execution of the will by the respondents and the trial Judge has rightly passed the order granting probate of the will 12. In view of the aforesaid discussions do not find any merit in this appeal and accordingly the same stands dismissed. No costs.