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2013 DIGILAW 912 (CAL)

Binapani Das v. Sushil Kumar Biswas

2013-12-10

SAHIDULLAH MUNSHI, SUBHRO KAMAL MUKHERJEE

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JUDGMENT : Subhro Kamal Mukherjee, J. This is an appeal against judgment and decree passed by the learned Additional District Judge, First Court at Krishnagar, District - Nadia, in Original Suit no.2 of 1988. 2. Shrimati Sachi Bala Nandi, since deceased, wife of late Ramani Kanta Nandi, executed her last will and testament on August 10, 1967. The will was a registered one. It was registered on commission. 3. It is admitted position that the testatrix was a widow and issueless. 4. In the will, she has categorically stated that, as she was issueless, she and her deceased husband treated Shrimati Binapani Das, daughter of her youngest sister, Phulobala Tarafdar and Sushil Kumar Biswas, son of her third brother, late Jyotish Chandra Biswas, as their own children. There was a, further, recital in the will that they were brought up by them. Shrimati Binapani Das was given in marriage by her husband. Sushil Kumar Biswas was given in marriage by her after the death of her husband. 5. Admittedly, the testatrix died on July 12, 1983, that is, long fifteen years after the execution of the will. 6. On her death, an application for grant of probate was filed by Shrimati Binapani Das. The application was filed initially before the learned District Delegate, but as it becomes contentious, it was refiled before the learned District Judge at Krishnagar, District - Nadia. The suit was registered as Original Suit no.2 of 1988. 7. Eventually, the suit was transferred to the court of the learned Additional District Judge, First Court at Krishnagar, District-Nadia. 8. The learned trial judge rightly held that the petitioner in the application for probate established that the will was duly executed and registered and the defendant failed to establish that there was any fraud or undue influence on the testatrix by the beneficiaries. 9. Still, the learned Additional District Judge declined to grant probate on the ground that there were some discrepancies in the deposition of the petitioner. The plaintiffs witness no.1 in her deposition claimed that she was daughter of the testatrix and she was given in marriage by the husband of the testatrix on Agrahayan 17, 1384 B.S. 10. 9. Still, the learned Additional District Judge declined to grant probate on the ground that there were some discrepancies in the deposition of the petitioner. The plaintiffs witness no.1 in her deposition claimed that she was daughter of the testatrix and she was given in marriage by the husband of the testatrix on Agrahayan 17, 1384 B.S. 10. The learned trial judge unnecessarily made out a third case in rejecting the application for grant of probate by holding that the applicant, Shrimati Bina Pani Das, and the person mentioned in the will were two different persons. 11. It is to be remembered that Shrimati Bina Pani Das was a homemaker and not an well-educated person. She comes from a rural background. There may be slight discrepancy in her deposition for which the entire probate proceeding could not be rejected. 12. There is another problem posed by the defendant; the original will did not come before the court. It was contended that it was lost. However, a certified copy was filed and the certified copy of the will was duly proved by production the records from the registry office. 13. The execution and the registration of the will were not in dispute. 14. The defendant contended that fraud and undue influence was practised upon the testatrix. The learned judge came to the conclusion that there has been no fraud, undue influence or misrepresentation. 15. Testatrix died long after fifteen years after the execution of the will. Will was registered in commission. The interested persons must have noticed that the Government Official came to the house for the purpose of registration of the will. No one has challenged the will during the lifetime of the testatrix. 16. Therefore, when the execution and registration of the will was proved and the defence of the defendant on fraud, undue influence and misrepresentation was rejected by the trial court, the trial court was not justified in refusing to grant probate on the basis of a case, which was not made out by the parties. 17. Therefore, impugned judgment and decree are set aside. The application for probate is allowed. 18. The learned trial judge is requested to issue probate with the will annexed in favour of the applicant/plaintiff within one month from the date of communication of this order upon compliance of all formalities. 19. The appeal is, thus, allowed. 20. 17. Therefore, impugned judgment and decree are set aside. The application for probate is allowed. 18. The learned trial judge is requested to issue probate with the will annexed in favour of the applicant/plaintiff within one month from the date of communication of this order upon compliance of all formalities. 19. The appeal is, thus, allowed. 20. Since the respondent did not appear to contest the appeal, we make no order as to costs. Sahidullah Munshi, J. - I agree.