Jyotirmay Bhattacharya, ISHAN CHANDRA DAS, JJ. - (1.) THIS Appeal is directed against a judgment and order dated 29.04.2008 passed by Learned Additional District Judge, 4th Court, Alipore, South 24 Parganas in O.S. No. 12/2006, where Learned Trial Court by an order of dismissal refused to grant probate of a Will, claimed to have been executed by one Usharani Das Majumdar, since deceased.
(2.) BRIEFLY stated, the case of the plaintiffs/appellants of the instant proceeding (and hereinafter referred to as the appellants for the sake of convenience) is that by filing a certified copy of the last Will and testament of deceased Usharani Das Majumdar, the appellants claimed that said Usharani died on the 5th day of January 1994 at her place of permanent residence at 320 N.S.C. Bose Road, Jadavpur, Calcutta, after execution of her last Will in presence of the witnesses and it was duly registered at the office of the District Registrar at Alipore (Book No. III Volume No. 6 pages 18 to 22 for the year 1983). The appellants were the executors of the Will, duly appointed by their mother. Said Usharani died leaving the (following) survivors namely Dipak, Prabir, Kanchan, Mrittyunjoy and Arunava Das Majumdar, all were living at 320 N.S.C. Bose Road. The appellants filed the suit for grant of probate of the Will, executed by their mother and produced the certified copy of the same before Learned Trial Court with the averments that the original could not be traced out due to efflux of long time. A Written Statement was filed by the defendant No. 1/respondent No. 1 (hereinafter referred to as respondent No. 1) to contest the claim of the appellants and denying the cause of action, as averred in the body of the plaint. The said respondent no. 1 categorically stated that Usharani Das Majumdar never executed any Will during her life time. Admitting the date of his mother s death i.e. on the 5th day of January 1994, said respondent no. 1 contended that his mother Usharani died at Princep Ghat in the river Ganges while she went to take bath there, prior to the Sradh Ceremony of her husband and the body of Usharani was taken from the Princep Ghat to the S.S.K.M. Hospital where she was declared dead. The respondent no. 1 also stated that his mother was very old, ailing but simple minded lady and she had no knowledge or idea regarding the Will or testamentary disposition or any kind of transfer of property. He further stated that his mother never executed any Will rather the so called Will was manufactured, forged, fabricated and it was not registered in favour of the appellants and the proforma respondent, rather it was got registered in collusion and conspiracy with each other, by way of forging the signature of Usharani Das Majumdar and as such the appellants and the proforma respondent wilfully suppressed the said so called Will and produced the certified copy thereof. It was further averred in the said written statement that the property being 320 N.S.C. Bose Road, being the subject matter of the so called Will, was not the property of said Usaharani rather the property of her husband Sarojendro Das Majumdar who purchased the land in the benami of his wife Usharani Das Majumdar and thereafter he with his own money and for his own use and benefit constructed a building thereon, lived with his family including his wife and 5 sons till he died on the 25th day of December 1993. The respondent no. 1 further alleged that his mother did not have any source of income to purchase the property rather she was the benamdar of her husband. Categorically denying the execution of the Will in presence of the witnesses as averred in the body of the plaint, the respondent no. 1 further stated that the so called Will was created with the help of interested relatives including the attesting witnesses with forged signature of the testatrix for causing deprivation of the respondent no. 1 from getting his legitimate share in the property. Further denying and disputing other material averments of the plaint, this contesting respondent No. 1 ultimately prayed for dismissal of the prayer of these appellants.
(3.) ONE Prabir Das Majumdar, the proforma respondent filed a separate written statement, took the side of the plaintiffs/appellants, admitting their claim and prayed for grant of probate in their favour since the Will was the last desire of their mother Usharani Das Majumdar.;