- (1.) This is an appeal by the propounder against a decision of Mr. E.P. Mukherji, third Court of the Additional District Judge, Alipore, dated January 20, 1949, refusing his application for the grant of probate of the will of his father Bhabesh Charan Das alias Das Gupta. The will is dated November 28, 1943, and was registered on November 30, 1943. The testator died on October 27, 1944. The application for the grant of probate was made by the Appellant Paresh Charan Das Gupta, the eldest son of the deceased testator and the executor named in the will. In the application for the grant of probate the propounder mentioned the names of his younger brother Naresh Charan Das Gupta and his sister Srimati Indira Debi as the near relations of the deceased. The application was supported by an affidavit of Kali Kinkar De, one of the attesting witnesses to the will. The application was filed on July 16, 1946, and was registered as L.A. (Act XXXIX of 1925) Case No. 77. Thereafter, special and general citations were issued. On November 22, 1946, the Respondent Naresh Charan Das Gupta filed an objection inter alia on the ground that the will was not duly executed or attested, that the will was not intended to be operative as a will, that the testator had no testamentary capacity, that taking advantage of the absence of the objector the Petitioner by illegal means and untrue suggestions brought the testator under his control and, while executing the will, the testator was dominated by the undue influence exercised on him by the propounder Paresh Charan Das Gupta and the testator could not exercise his own free discretion and it was further alleged that the Applicant had been suggesting to the testator for some time before the execution of the will various untrue allegations against the opposite party and his wife and suggested that a show of a will was necessary to put a check on the opposite party. Thereafter, the application was registered as a suit on November 25, 1946. On February 12, 1947, the objector filed a written statement on the same allegations as were made by him in his petition of objection filed on November 22, 1946. On March 3, 1947, two issues were framed for trial (i) Was the will in question lawfully executed and attested? (ii) Had the testator testamentary capacity at the time of the execution of the will? Later on, on December 20, 1948, another issue, being issue No. 3, was raised. The issue runs as follows Was the will in question executed under undue influence and pressure exerted by Paresh Charan Das Gupta?
(2.) By a judgment dated January 20, 1949, the Additional District Judge, Third Court, Alipore, found issue Nos. 1 and 2 in favour of the propounder and issue No. 3 in favour of the objector. In the result, probate was refused and the suit dismissed with costs. It is against this decision that the propounder has preferred this appeal.
(3.) Mr. Chakravarti, appearing for the Appellant, has urged that his client was prejudiced by the late framing of issue No. 3. He has also contested the finding of the Additional District Judge on issue No. 3.;