- (1.) The appeal is directed against the judgment and order of the Special Court-cum-Additional District Judge, Burdwan in OS (Will) Suit No. 2 of 2002 / 10 of 2000. By this order the Trial Court has granted the probate of the Will executed by Kalimati Dasi to her grandson Amal Kumar Ghosh, the respondent herein. The appellants are the children of Kalimati Dasi.
(2.) Kalimati Dasi expired on 30th March, 1984. She had six sons and two daughters. One of her sons Nepal Ghosh predeceased her. The respondent applied for a probate of Kalimati Dasi's alleged Will under which he had been appointed as the executor by the testatrix. The application for probate was contested by the appellants. They denied the fact that Kalimati Dasi had executed a Will. They contended that she was bed-ridden due to several ailments for more than two years prior to her demise. They further pleaded that she was not mentally or physically fit to execute the Will or indeed to instruct anybody to scribe the Will. The appellants claimed that the document which was the purported Will was forged and fabricated in order to grab the property which had devolved on all the children of Kalimati Dasi after her death. According to the appellants, the respondent, his father and their relatives connived to deprive them of property owned by Kalimati Dasi. The appellants specifically pleaded that a part of the estate of Kalimati Dasi had already been sold by a registered Sale Deed in 1985. One of Kalimati Dasi's daughters Pratima Pal, i.e., the appellant No.5 got married after the death of her mother. Her brothers including the father of the respondent transferred some lands from the estate of Kalimati Dasi to her as a gift. A separate opposition to the probate application was also filed by the appellant No.5 wherein she reiterated the statements in the objection filed by the other appellants. She further stated that the contention of the respondent herein that Kalimati Dasi had expired leaving behind her four sons and two daughters was false as one of her sons Madhusudan Ghosh died after his mother. She contended that the execution of the Will was shrouded in suspicious circumstances and it was fabricated.
(3.) Evidence was led by the respondent in support of his case before the Trial Court. He examined the scribe of the Will - Murtuza Sk. and the bakalamdar - Saktipada Ghosh in support of his case. The respondent in his examination in chief has stated that his grandmother expired on 30th March, 1984 leaving behind six sons and two daughters, which statement is contrary to his pleadings in the application for probate. He has stated that Saktipada Ghosh, Nabakumar Mandal, Sisir Sahana and Subarna Banerjee were all witnesses to the Will and Saktipada Ghosh was also the bakalamdar i.e. the person who identified the left thumb impression of the testatrix. He claims that all the aforesaid persons signed the document on the request made by Kalimati Dasi. He has deposed that he became aware of the Will on 1st September, 1999 when he obtained it from a box belonging to Kalimati Dasi. This statement again is contrary to the pleadings in the application where the respondent has stated that he was given the Will by his grandmother for obtaining a probate after her death. The respondent has further asserted that except for his father Dinabandhu Ghosh, the other children of Kalimati Dasi did not have good relations with her. He denied that Kalimati Dasi was bed-ridden for two years prior to the execution of the Will. In his cross-examination he has admitted that though his father was alive, he was not impleaded as a defendant. He has admitted that he was eight years old when Kalimati Dasi expired and that his father Dinabandhu Ghosh used to look after the property when Kalimati Dasi was alive. He has then admitted that Madhusudan Ghosh, one of the sons of Kalimati Dasi, expired a year after her death, which again is contrary to his pleadings in the probate petition. He denied having any knowledge about the lands being transferred to third parties after the death of Kalimati Dasi. He has admitted that he was not present when the Will was scribed and executed. He has denied that a portion of the suit property was gifted to Pratima Pal, the daughter of Kalimati Dasi. The witness has admitted in his cross-examination that Kalimati Dasi was "not fit and well" at the time of execution of the Will.;