CHINMOYEE SAHA Vs. DEBENDRA LAL SAHA

JUDGEMENT

(1.) This appeal is directed against the judgment and decree passed by the learned Additional District Judge, 9th Court, 24 Parganas, in O.S. No. 8 of 1979. The propounder, Sm. Chinmoyee Saha, is the appellant.

(2.) One Shiblal Saha was the owner of premises No. 1, Hazra Road, Calcutta-26 and premises No. 24, Basantalal Saha Road, Calcutta-53. There was a rice mill under the name and style of Satyanarayan Rice Mill at 24, Basantalal Saha Road. Sundari Saha was the wife of Shiblal. Shiblal adopted a son named Kishorilal Saha, who died on 8-2-1957. Kishori had two wives, Phulrani and Anima. Debendra, Rajendra, Narender and Manindra are the sons of Kishori by Phulrani. Jogmaya and Mahamaya are their two daughters. Shiblal died on 6-1-1964. Sundari died on 13-4-1970. Prior to her death, Sundari executed a Will dated 10-2-1970 under which Netai and Gour, the sons of Debendra, were made the legatees and Chinmoyee Saha, the wife of Debendra, was appointed as executrix. This Will was not registered. After the death of Sundari, Chinmoyee applied in the court of the District Delegate, Alipore on 5-4-1978 for obtaining probate of the Will. This application for grant of probate was refiled in the court of the District Judge, 24 Parganas, at Alipore on 1-9-1978, as the matter became contentious. The application for grant of probate was registered as O. S. No. 72 of 1978. At the trial, five witnesses were examined for the propounder. They were Khagendra Nath Bera (P.W.1), Bimal Ghosh (P.W.2), Chinmoyee Saha, the propounder and the appellant (P.W.3), Dilip Kumar Guha alias Chanchal of 21, Priyanath Mallick Road, Calcutta-26 (P.W.4) and Nagendra Kumar Roy (P.W.5). For the contesting defendants, being defendants Nos. 2 to 4, 6 and 8 (Rajendra, Narendra, Manindra, Phulrani and Jogmaya), four witnesses were examined, including Rajendra (D.W.2) and Manindra (D.W.3), the two sons of Kishori. The other two witnesses were Rabindra Nath Das (D.W.1) and Gopal Chandra Konar (D.W.4). On a consideration of the evidences of these witnesses and the documentary evidence the learned Additional District Judge was of the opinion that the plaintiff-propounder had not been able to remove the suspicion surrounding the execution and attestation of the will from the mind of the Court. As such, the suit, which was subsequently numbered as O.S. No. 8 of 1979, was dismissed on contest with cost. It is against this order of dismissal of the suit that the present appeal has been filed.

(3.) The case of the propounder-appellant is that Sundari had great attachment for her great-grand sons, Netai and Gour. She executed a Will after making it known that she would make over her assets to Gour and Netai. By the Will, the executrix, Chinmoyee, was directed to make over the assets of Sundari on the attainment of majority by Gour and Netai. Debendra alias Nataraj extended the properties and business. He was made invalid by taking excessive wine. Rajendra took advantage of this illness of Debendra and intended to grab the whole property. He had a mind of snatching away the Will. On 13-10-1970, some arrangements were made temporarily over the assets covered by the Will. The executrix was under constant threat from Rajendra who put pressure on her to hand over the Will and teased her through other female-folk, including her both mother-in-laws. Ultimately, the executrix had succeeded in applying for probate of the Will. It was alleged that the testatrix had 8 annas share and the heirs of Kishori had 8 annas share in the property left by Shiblal.