Uday Umesh Lalit, J. - (1.) This appeal challenges the correctness of the judgment and order dated 4th February, 2005 passed by the Division Bench of the High Court at Calcutta in Original Side Appeal No. 60 of 1984.
(2.) One Nandlal Das, husband of Shyama Sundari Dassi and father of two sons Kanailal Das and Pasupati Nath Das executed a Will on 12th April, 1963 in respect of properties owned and possessed by him. Schedule to the Will comprised of three parts. Properties mentioned in Part I and Part II of the Schedule were given to the family deity Sri Jugal Kishore Jew known as Sri Shyamaji at Tarapith temple of which deity the Testator was the shebait. Thus, properties mentioned in Parts I & II were to be Trust properties while properties mentioned in Part III were to be devised in accordance with the Will. Said Parts I, II and III of the Schedule to the Will were as under: I " Part-I 1. Garden house and land at Behalf known as "Nafar Kanan" being Holding No.19, Nafar Chandra Das Road, Behalf in the district of 24-Parganas together with Tank trees, structures etc. 2. All that two storied premises No.10/1/3 Jagannath Sarkar Lane, Kidderpore in the district of 24-Parganas, on part whereof the same is erected. 3. All that brick built messuage land and premises being No.1/3, Asha Babu Lane, Kidderpore in the district of 24 Parganas together with the land etc. 4. All that land and premises at 565 Diamond Harbour Road, Behalf in the district of 24 Parganas which property was purchased by me in the benami name of my wife (Smt. Shyama Sundari Dassi) together with the structures and sheds. 5. Land and tank adjoining the above premises No.565 Diamond Harbour Road being portion of Holding No.19/2 Kamarpara Road in Behala in the district of 24 Parganas. 6. All that brick built two storied messuage land and premises being No.55/2 Turff Road at Bhowanipore in the district of 24 Parganas purchased by me in the benami name of my wife (Smt. Shyama Sundari Dassi). Part-II 1. Several Plots of land at Tarapith in Rampurhat in the district of Birbhum including agricultural land measuring about 2 Bighas and homestead land purchased by me in the benami name of my wife (Smt. Shyama Sundari Dassi) and the buildings constructed on the homestead land measuring about 3 Bighas. 2. One Plot of land at Tarapith in Rampurhat in the district of Birbhum purchased by me in my own name. Part-III 1. All that garden house and premises at Jasidih in the district of Santhal Paraganas in Bihar purchased by me in the benami name of my wife Smt. Shyama Sundari Dassi. 2. Tenancy right in premises No.157A, Dharamtolla Street, together with pucca structures corrugated Tin sheds constructed by me at my own and costs upon the greater part of the said land. In Witness whereof I have hereunto set my hand this 12th day of April one thousand nine hundred and sixty three. "
(3.) Nandlal Das died on 1st December, 1964 leaving behind his widow and two sons. On 7th March, 1966 Kanailal Das died childless, leaving behind his widow Smt. Purnima Rani Dassi. On 3rd June, 1967 the other son Pasupati Nath Das, the present appellant, as Executor named in the Will dated 12th April, 1963 applied for grant of Probate of said Will by filing Probate Case No. 101 of 1967 in Calcutta High Court. A joint caveat was filed by Shyama Sundari Dassi and Purnima Rani Dassi. It was alleged that by subsequent Deed of Revocation dated 15th October, 1963 the aforesaid Will had stood revoked. The application for grant of Probate of the Will of Nandlal Das, being a contentious cause was numbered as Testamentary Suit No. 6 of 1971.;