Decided on March 09,1972

Indurani Dey Appellant
NANDALAL DEY Respondents


P.K. Chanda, J. - (1.)This appeal has been directed against the judgment and decree passed in Original Suit No. 13 of 1961 by the learned Subordinate Judge, Seventh Court, Alipore. The Respondent, Nandalal Dey filed an application for probate of the will alleged to have been executed on Aswin 12, 1366 B.S corresponding to September 29, 1959, by his uncle late Basanta (Kumar Dey who died on November 6, 1959, at the age of 60 without any issue. The Appellant Indurani, widow of Basanta, opposed the application alleging that the will was a piece of forgery and in developing that contention she alleged before the learned Subordinate Judge that about 4/5 months prior to the date of the alleged will Basanta was confined to bed due to illness and he was not in his senses for about two months prior to his death on November 6, 1959 and it was not possible for him to execute the will. The Appellant also contended before the learned Subordinate Judge that the application was not maintainable for non -compliance with the provisions of Sec. 281 of the Indian Succession Act.
(2.)The learned Subordinate Judge on a consideration of the evidence placed before him has found that Basanta had testamentary capacity to execute the will and he executed it with full knowledge of its contents and out of his free will. In other words, he has negatived the Appellant's contention that the will was a forged one. In regard to the verification of the application he has found that there has been sufficient compliance with the provisions of Sec. 281 of the Indian Succession Act.
(3.)On the above findings the learned Subordinate Judge has decreed the suit with costs and a probate of the will was ordered to be issued in favour of the Plaintiff Respondent. Being aggrieved by that decision the Defendant Sm. Indurani Dey has come with the instant appeal.

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