B.P.KATAKEY, J. - (1.)By this Miscellaneous First Appeal, the appellant has challenged the judgment dated 20.121995 passed by the learned Additional District Judge, Nagaon in Title Suit (P) No. 26 of 1992 dismissing the suit filed by the appellant praying for grant of probate of a will executed by Maheswari Debi, wife of' Late Golok Ch. Barthakur.
(2.)The facts leading to the filing of the present appeal is that the appellant as plaintiff filed an application in the court of the learned District Judge, Nagaon, Assam, which was initially registered as Misc. (Probate) 60 of 1992, for grant of probate of the Will of Maheswari Debi, wife of Late Golok Chandra Barthakur, stating inter alia, that Late Maheswari Debi during her life time executed her last Will in presence of the witnesses on 2.1.1988 bequeathing the property belongs to her. The sad proceeding was contested by the present respondent, namely, Atul Barthakur, who is the close relative of Late Maheswari Debi, the testatrix, by disputing the execution of the Will by Maheswari Debi and by stating, inter alia, that the properties involved in the alleged Will originally belonged to Maheswar Sharma Barthakur who, in the year 1938 by a Will bequeathed the properties in favour of the objector Atul Barthakur, who was the grand son of Maheswar Sharma Barthakur, through his son Golap Chandra Sarma Barthakur, in the said Will executed by Maheswar Sharma Barthakur, another son of Maheswar as appointed as executor and accordingly Golok Chandra Sharma Barthakur took out a probate by instituting the Title Suit No. 12 of 1940 and then committed the breach of trust by executing a Will in favour of his wife Maheswari Debi, the present testatrix. Maheswari Debi, thereafter obtained the probate of the Will executed by Golok Chandra Sharma Barthakur by instituting the Title Suit No. 13/72. It has further been pleaded in the objection that since Maheswar Sharma Barthakur, the grand father of the objector, in the year 1938 bequeathed the property in favour of the objector, Maheswari Debi had no right, title and interest over the land bequeathed by the present Will in question and in fact a proceeding being No. NRK-204/89 is pending before the learned Deputy Commissioner for correction of the revenue records on the basis of the Will executed by Maheswar Sharma Barthakur and which was probated in Title Suit No. 12 of 1940. It has further been contended in the objection that Maheswari Debi, the testatrix, was a pardanasin and illiterate widow having no issue and the plaintiff who was appointed as attorney by her took advantage of his position and manufactured the Will without any knowledge of Maheswari Debi bequeathing a big portion of the property in his favour, though she did not execute the document consciously and out of her own accord.
(3.)The said proceeding was thereafter transferred to the Court of the learned Additional District Judge, Nagaon and was renumbered as Title Suit (Probate) No. 26 of 1992. In the said proceeding the plaintiff examined himself as P.W.1, Shri Maheswar Goswami, the writer of the Will as P.W. 2, Jagat Bhattacharjee and Shri Pradip Kumar Mishra, the attesting witnesses of the Will as P.W. 3 & 4 respectively. The objector, the respondent herein also examined three witnesses, namely, the objector himself as D. W. 1, Bijoy Sharma as DW 2 and Puma Chandra Sharma as D. W. 3. Apart from the oral evidence, the plaintiff side exhibited the Will executed by the testatrix Maheswari Debi, as exhibit 1. The objector, the respondent herein exhibited two documents, namely, certified copy of the order dated 5.2.1974 passed by the learned District Judge in Title Suit No. 13 of 1972 granting the probate of the Will executed by Golok Chandra Barthakur, husband of Maheswari Debi as Exbt. 'Ka' and the certified copy of the Will executed by Shri Maheswar Sharma Barthakur on 14.8.1938, which was probate in Title Suit No. 12 of 1940 as Exbt. 'Kha'. The learned Additional District Judge, Nagaon, thereafter upon marsheling the evidences on record, both oral and documentary, by the judgment dated 20.12.1995 dismissed the said T.S. (Probate) No. 26 of 1992 refusing to grant the probate of the Will executed by Maheswari Debi. Hence, the present appeal.