HARI SHANKAR PRASAD, J. - (1.) THE appeal has arisen out of judgment dated 12.4.1999 passed in Title (Probate) Suit No. 1 of 1997 (Probate Case No. 8 of 1997), whereby and whereunder the learned 5th Additional District Judge, Dhanbad dismissed the suit.
(2.) THE case of the appellant, who is petitioner in probate case, is that Nandlal Basu was the brother of the husband of the petitioner -appellant, who executed a Deed of Will on 27.10.1978 and made petitioner Maya Rani Basu as executor of the Will. The appellant -petitioner filed a petition under Sec.276 of the Indian Succession Act for grant of Probate stating inter alia therein that she has been appointed executor of the Will and that Nandlal Basu was the brother of her husband. Nandlal Basu died on 1.1.1986 and before his death on 27.10.1978 he had executed a Will appointing her as executor of the Will. It is further alleged that at the time of execution of the Will, the ordinary residence of the testator was at Bastakola atta chakki, Dhanbad within the jurisdiction of the Court and that was his fixed place of residence. Notices were issued to the relations of Nandlal Basu and one Saroj Kumar Basu was made opposite party in the petition, who appeared in the case and filed an objection on 25.5.1988 and contested the case, but before conclusion of the case, the appellant -petitioner added some other persons as opposite parties and thereafter all the persons appeared and filed another joint objection petition on 18.3.1993 and contested the case and the grounds taken by the first objector are more or less similar to the grounds taken by other objectors. In the objection petition, it was alleged that this petition is not maintainable and that Nandlal Basu never executed any Will on 27.10.1978 or on any other date during his lifetime and thereby he did not make dispossession of his property situated at Bastakola. Nandlal Basu was suffering from hypertension and various other ailments and he was not in a position to make dispossession of his property. The objector has taken other grounds that Nandlal Basu never executed a Deed of Sale and so -called Deed has not been properly executed and attested and, therefore, petition for grant of probate should be dismissed. On the basis of the aforesaid allegations of the parties, the learned Court below framed three issues, which are as follows : - - I. Had Nandlal Basu testamentary capacity to execute the Will? II. Whether Nandlal Basu executed the Will in question in favour of petitioner Maya Rani Basu and whether it was duly attested? 20/5/2014 Page 46 Bimla Varta Versus State Of Jharkhand III. Is the petitioner entitled for the grant of Probate?
(3.) THE learned Court below, after recording evidence of both the sides, both oral and documentary and while deciding issue No. 1 held that the deceased Nandlal Basu was in good health and was in a position to make dispossession of his property and he had capacity to execute deed of Will and decided issue No. 1 in favour of the appellant -petitioner but while deciding issue No. 2, learned Court below came to a finding that the Will has not been duly attested and on this fresh ground, the learned Court below came to a finding that the petitioner is not entitled to grant of Probate.;