ARINDAM SINHA, J. - (1.) SASHI Bhusan Paul, since deceased had four sons, Amullya Chandra Paul, Prafulla Kumar Paul, Atul Krishna Paul and Srikrishna Paul. Prafulla Kumar Paul died in the year 1964, leaving behind his widow Usha Rani Paul who also died on 13th January, 1998. They were issueless. Upon the death of Usha Rani Paul Asit Kumar Paul, son of Atul Krishna Paul produced a Will dated 26th May,1981 said to have been made by her. The beneficiaries under the said Will were the testratix's brother -in -law Atul Krishna Paul, his daughter Arati Dey and sons viz, Asit Kumar Paul, Nishit Kumar Paul and Ashim Kumar Paul. Asit Kumar Paul was named the executor of that Will.
(2.) THE named executor made an application praying for grant of probate of the said will which was moved on 3rd March, 1999. By that time all the sons of Sashi Bhusan Paul, since deceased, were dead. In the petition for grant of probate the propounder named the sons and daughters of the three deceased sons of Sashi Bhusan Paul, since deceased, as the heirs of Usha Rani Paul. Jahar Lall Paul the appellant herein being the son of Amullya Chandra Paul, since deceased contested the probate proceeding by filing written objection. Mr. Haradhan Banerjee, Ld. Advocate appearing on behalf of the appellant drew our attention to paragraphs 12 to 15 of his client's objection dated 17th September, 2003 by which his client had alleged before the Ld Trial Judge, inter alia, that the purported Will was the outcome of undue influence, misrepresentation and fraud. That the Will was got signed by the testatrix was apparent as she having lived in the same bastu had equal affection for all the sons of her husband's brothers, she also used to like them and took meals with them occasionally. Mr. Banerjee submitted that, therefore, the disposition in the Will was unnatural. Mr. Banerjee then drew our attention to the amended written objection of his client filed on 28th April, 2005 where in paragraph 17 his client had alleged that Atul Krishna Paul, father of the petitioner had acted as the de facto manager of the entire joint properties of the Paul family and thereby taking advantage of his dominating role had got Usha Rani Paul, an issueless widow, in his clutch. It is his client's specific case in the amended written objection that the Will in question was neither read over nor explained to the testatrix nor she had asked anybody to write out a Will.
(3.) THE Ld. Trial Judge framed issues and tried them to come to his judgment dated 16th June, 2007, which has been impugned in this appeal. The Ld. Trial Judge took note of the case made by the appellant that the Will had not been executed in strict compliance of the provisions in Section 63 of the Indian Succession Act, 1925. Hence it was void. The Ld. Trial Judge relied upon, inter alia, endorsement on the Will made by the scribe that it had been read over and explained to the testatrix in the presence of the witnesses. He thus went on to hold that from all the situations considered together, it is clear that the execution of the Will had taken place in the same sitting. It could, therefore, be safely inferred that the witness Dr. Roy had also signed on the Will in the presence of the testatrix and the provision under Section 63 of the Indian Succession Act, 1925 had been strictly complied with. The Ld. Judge negatived the contentions of the appellant and ordered that the application be allowed on contest against him and ex parte against the rest for probate to be issued of the Will dated 26th May, 1981 of Usha Rani Paul, since deceased.;