Shivakant Prasad, J. - (1.) The appellants have impugned the judgment and the decree dated 30th September, 2004 passed by learned Additional District Judge, 7th Court, Alipore in Original Suit No. 05 of 1997 as bad in law and in fact, inter alia, on the grounds that learned Trial Judge ought not have held the Will in question as a genuine allegedly executed by late Ashalata Guha Roy on comparing her signature as an expert. Secondly, that testatrix Ashalata Guha Roy died in 1973 and the application for grant for letters of administration was filed in the year 1996. So, learned Judge ought to have held that the plaintiff/respondent has failed to remove the suspicious circumstance arising in the case for such unexplained long delay in filing the said application. Thirdly, that the provision laid down under Section 229 of the Indian Succession Act, 1925 regarding issuance of citation upon the executors have not been complied and finding as to conduct of executors having renounced their executorship are perverse as there is no provision of Section 230 of Indian Succession Act.
(2.) According to the appellants, Ashalata Guha Roy died interested without any issue leaving behind her husband Bhabatosh Guha Roy, the defendant No. 1 as her only heir now deceased, had inherited and possessed all properties left by Ashalata Guha Roy. The plaintiff/respondent had filed application under Section 278 of Indian Succession Act for grant of letters of administration in his favour on the score that he is adopted son of Ashalata Guha Roy and one of legatees under the Will left by Ashalata Guha Roy. Defendant No. 1 during trial, specifically disputed the claim of the plaintiff as the adopted son of Ashalata Guha Roy and on the genuineness of the Will allegedly left by Ashalata Guha Roy. It is also submitted that the Will has not been probated and some person purporting to be executor filed probate case simply to withdraw the same latter on. The learned Judge granted the letters of administration in favour of the plaintiff/respondent by the impugned judgment on scrutinizing the evidence adduced by the parties to the proceeding. According to the defendant No. 1 Bhabatosh Guha Roy, the plaintiff/respondent was never treated by him and his wife Ashalata Guha Roy as their adopted son because the defendant Bhabatosh Guha Roy, since deceased had number of children begotten out of second marriage with Gouri Guha Roy whom he had married in the year 1964 and further that the properties in question were actually purchased by the said defendant No. 1 in the benam of first wife Ashalata Guha Roy.
(3.) As regards the finding as to whether the plaintiff is or is not the adopted son of Ashalata Guha Roy, learned Trial Judge appraised the evidence adduced by Bhabatosh Guha Roy examined on commission who had admitted that Kumar Kanti Guha Roy, plaintiff/respondent herein was reared up by him from his childhood and that he was picked up from the road in Jalpaiguri by the local people and given to him which story was unbelievable in view of the fact that said plaintiff/respondent was the son of his sister-in-law and he used to address him as father and Ashalata Guha Roy as his mother and he was got admitted to Narendrapur Ramkrishna Mission School showing him as the son of said Bhabatosh Guha Roy and Ashalata Guha Roy in the Admission Register. He had also purchased one car bearing No. WMA 258 for the plaintiff/respondent. Learned Judge found from the evidence-on-record that the relationship between Ashalata Guha Roy and Bhabatosh Guha Roy became strained because he married one Gouri Devi for the second time which is reflected from certified copy of the order dated 05.9.1963 passed in MAT. Suit No. 21/63 Exhibit-1 which was instituted against Bhabatosh Guha Roy by Ashalata Guha Roy for restitution of conjugal rights and for annulment of the subsequent marriage with Gouri Devi by a decree of nullity. Said Bhabatosh Guha Roy had withdrawn himself from the society of Ashalata Guha Roy on and from 01.6.1962 whereas she had made attempts to bring him back to his normal ways of life but in vain as he was found living with Gouri Devi in a separate house at 133A, Rashbehari Avenue, Top Floor, Calcutta, as husband and wife whom he had married in July, 1962 and the said suit was decreed and thus, it was observed that the husband and wife relationship between Bhabatosh Guha Roy and Ashalata Guha Roy was bitter and left the latter in 1962 after second marriage with Gouri Devi, therefore, the plea of Bhabotosh that after the death of Ashalata Guha Roy, he had married Gouri Devi for the second time was not accepted by the learned Trial Court.;