P.N.Sinha, J. - (1.)This first appeal is at the instance of dendants No. 1 (a) to l(c) in a probate proceeding and is directed against the judgement and decree dated 29th June, 2005 passed by the learned Additional District Judge, Fast Track Court No.1, Alipore in Original Suit No.3 of 2005 (Old No. O.S. 56 of 1950) thereby allowing the application for grant of probate filed by the plaintiff/respondent as executor in respect of the Will dated 1st March. 1949 executed by the testator Bimal Behari Sen (since deceased) in favour of his daughter Gita Rani Sen.
(2.)The facts of the case may be summarised as follows: The name of plaintiff has appeared in the cause title of appeal and in Lower Court Record in different manner; somewhere as Arun Kumar Bose, somewhere Arun Coomar Bose and in the Will as Aroon Kumar Bose. For the sake of convenience in this judgment we shall use his name as Aroon Kumar Bose.
(3.)The plaintiff/respondent instituted the suit for grant of probate of the last Will and testament of one Bimal Behari Sen (since deceased) dated 1st March, 1949 bequeathing premises No. 29, Pipe Road, Khidderpore exclusively to his daughter, Gita Rani Sen who was then a minor. In the said Will one Ajit Kumar Bose was appointed as the first executor. His son Aroon Kumar Bose was made the second executor. It was mentioned in the Will that in case the first executor was not Willing to do needful or apply for probate of the Will or to act as executor in the said Will, the second executor would be entitled to do the needful. The first executor Ajit Kumar Bose refused to act as executor and as such the second executor namely Aroon Kumar Bose, as plaintiff, filed the application on 8.12.1949 for grant of probate on the Will dated 1st March, 1949 made by the testator Bimal Behari Sen and as it was contested it was registered as 0. S. No. 56 of 1950.