Decided on January 09,1975

Kanthi Ram Bora Appellant
Dom Bora Respondents


BAHARUL ISLAM,J. - (1.) THIS is an appeal under Section 384 of the Indian Succession Act and is directed against the order dated 11-1-1972 passed by the District Judge, U. A. D. Jorhat in Title Suit (Probate) No. 26 of 1969, in which he held that the appellant was not entitled to any probate of the will.
(2.) THE appellant's case is that one Kolai executed a will in his favour. The will was written by Gobinda Chandra Mahanta, P. W. 2, and attested by two witnesses both of whom were dead. The appellant further stated that the property mentioned in the will was given to him and one Puhita, wife of the testator. The testator died on 8-11-1952 leaving the two legatees and one Dom Bora, a non-applicant. Puhita also died in 1963 leaving no heir. In such circumstances the appellant applied for probate of the will. Before the institution of the present probate case the appellant had filed another probate case (Misc. Case No. 39/60) in the Court of the Subordinate Judge, Jorhat, but that case was dismissed for not depositing the necessary court-fee. Notice of the present probate case was issued to the heirs of Dom Bora and one Haren Sarma who had purchased from Smt. Puhita her share of the land. Haren Sarma only contested the appellant's application for probate. His case is that the will in question was not validly executed by Kolai. He further pleaded that the present probate case was barred by res judicata. He further pleaded that he purchased a part of the land from Puhita filed a case against the applicant in respect of the suit land and got a decree which was affirmed by the High Court.
(3.) IT may be mentioned that the appellant filed the first case for probate, namely, Misc. Case No. 39 of 1960 and it was dismissed on 25-11-1961. Thereafter Haren Sarma aforesaid filed the civil suit, namely, Title Suit No. 31/60 and got a decree on 3-5-1962. An appeal, namely, First Appeal No. 30 of 1962 having been taken to the High Court, the decree was affirmed by the High Court on 29-8-1966. The appellant has filed the present probate case on 3-11-1967.;

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