KALIKANTA KALITA AND ORS. Vs. MAHAT KALITA

JUDGEMENT

(1.) This is an appeal under Section 299 of the Indian Succession Act, 1925 challenging the judgment dated 1.11.2003 passed by learned Ad-hoc Additional District Judge No.3, Kamrup, Guwahati in Probate Testamentary Suit No. 11 of 2000. The learned trial court by that judgment granted probate in favour of the petitioner therein.

(2.) One Mahesh Kalita as executor filed application under Section 276 of the Indian Succession Act in the court of learned District Judge, Kamrup stating that the Will dated 15.6.1994 annexed to the application was the last Will and Testament of his mother Asman Bala Kalita who subsequently died on 9.1.1997. It is stated that the value of the property bequeathed by her was Rs.25,000/- and that the testatrix executed the Will in presence of a scribe and two attesting witnesses being in sound and disposing state of mind. The application was verified by one attesting witness, namely, Biswajit Sharma . On being summoned three other sons of testatrix appeared and submitted written statement contesting the claim. Those three sons, namely, Kalikanta Kalita, Harish Kalita and Mahesh Kalita submitted a joint written statement. According to them, the Will was fraudulent and it was never executed by their mother. Rather during her lifetime the testatrix expressed her mind in presence of all parties that after her death, her share in the property inherited from the predecessor would be distributed equally among her surviving sons. According to the objector, the statements made in the application praying for probate are fully of false, concocted and misrepresentation of real fact. It is also claimed that land described in Schedule A to the application is a joint family property inherited from their father. The testatrix was only one of the many legal heirs of the original owner and so she could not have bequeathed whole of the property left behind by their father. With these averments on fact, objector prayed that the application for probate be dismissed.

(3.) Once an objection was filed contesting the application under Section 276 of the Indian Succession Act, 1925 and the proceeding automatically got converted in the form of a suit by operation of Section 295 of the Indian Succession Act and so the learned trial court framed four issues and relegated the parties to lead their respective evidence.