Sinha, J. - (1.) This appeal being preferred by the defendant is directed against the judgment dated 17th May, 2002 passed by the learned District Judge, Burdwan in Will (probate) Case No. 6/407 of 1997/1996. The defendant has preferred this appeal being aggrieved and dissatisfied with the judgment and decree by which the learned Court below allowed the prayer of the plaintiff/respondent for grant of probate of the last will/testament dated 9.4.1991 made by testatrix Bijoya Mala Bag, mother of both the sides.
(2.) The respondent/plaintiff filed the suit for grant of probate of the last will/testament dated 9.4.1991 made by deceased testatrix Bijoya Mala Bag, contending that she was an executer of the said will and one of the beneficiaries as well. The said will was executed and registered on the same date i.e., 9.4.91. It was drafted by a lawyer, executed in presence of the attestating witnesses required under the law. By the said will the plaintiff/ respondent together with her elder brothers Pratul Kumar Bag and Shymal Kumar Bag ans sisters Smt. Pratima Bhaduri and Ratna Mukherji were named executors. On 18.2.92, the testatrix Bijoya Mala Bag died leaving behind five sons and four daughters.
(3.) The opposite parties/appellants herein before Sunil Kumar, Mihir Kumar, Dilip Kumar Bag who are the three sons of the testatrix opposed the petition by filing a written objection denying all the material allegations made in the application. It was submitted that the testatrix beforehand transferred some properties, namely "A" & "B" schedule to her eldest son in 1955 and gifted "C" schedule properties to four sons by a deed in 1960. Thus, those properties as contained in the will were not capable of being disposed of in a will/testament by the testatrix. One partition suit (T.S. No.79/1994) is also pending in between the parties. It has further been contented that the testatrix Bijoy Mala was not physically and mentally fit and was not in sound mind and health to execute the alleged will which has been branded as a forged one and as a procured one by the plaintiff/ respondent only to deprive the brothers by undue influence.;