Decided on May 21,1973

Guneshwar Chutia Appellant
Haren Chutia And Others Respondents


R.S. Bindra, J. - (1.) THIS appeal by Guneshwar Chutia is directed against the judgment dated 17 -5 -1971 of the District judge, U. A. p., Jorhat. by which he dismissed the appellant's petition for grant of probate in respect of will Ext. 1, dated 4 -3 -1956, alleged to have been executed by his mother Srimati Maniki Chutiani. The prayer for probate was resisted by Srimati Kanful Chutia, a daughter -in -law of the testatrix, and her two sons. Haren Chutia and Bhuban Chutia. Srimati Maniki was the widow of Roseswar Chutia who left as his heirs, besides his widow, two sons Guneswar Chutia, the present appellant, and Ratneswar Chutia. This Ratneswar had predeceased his mother Srimati Maniki and was survived by his widow Kanful and the two sons Haren and Bhuban. The defence set up by the heirs of Ratneswar was that Srimati Maniki had not executed any will nor she had the sanction of law to make a will in respect of the property allegedly bequeathed by her. It was also alleged that Guneswar had exercised undue influence on his mother, who was living with him in the matter of procuring the will, and as such the document propounded by him (Guneswar) cannot operate as a will and the last testament of Srimati Maniki. Another objection raised by the widow and the sons of Ratneswar was that Srimati Maniki had only life interest in the property mentioned in the will and so could not have disposed of that property by a will in face of Section 14 (2) of the Hindu Succession Act, 1956, hereinafter called the Act.
(2.) THE District Judge settled the following issues between the parties: 1. Whether the alleged Will was duly executed and attested ? 2. Whether late Maniki had any capacity to give away property to the petitioner by testatrix (sic) and endowment under the provision of law ? Whether the alleged will was collusively obtained by exercising undue influence ?
(3.) WHETHER the petitioner is entitled to get probate of the will ? 3. The will Ext. 1 having been executed on 4 -3 -56, which was before 17 -6 -1956 when the Act came into force, the District Judge held, while dealing with Issue No. 2, that Srimati Maniki had only widow's limited interest in the property described in Ext. 1 and as such she could not have made a will in respect of that property. Under issues Nos. 1 and 3 the Court held that Srimati Maniki never meant to execute any will and that the document Ext. 1 had been secured from her by Guneswar by exercising undue influence over her. On the basis of the findings reached on issues Nos. 1 to 3, the District Judge adjudged that Guneswar was not entitled to claim probate of the will Ext. 1. 4. The appellant's Counsel Sri K. Lahiri challenged all the three findings reached by the District Judge on the basis of which he had denied the probate to the appellant. Sri Lahiri vehemently urged that the due execution and attestation of the will Ext. 1 had been established beyond reasonable doubt, that there was no material on the record to support the finding that Guneswar had exercised any undue influence on his mother to secure the will, and that the Court had grievously erred in holding that Srimati Maniki had only a limited Hindu widow's interest in the property. After carefully examining the evidence on record and weighing the arguments addressed at the bar, I have reached the conclusion that it is not possible to maintain either of the three findings returned by the learned District Judge.;

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