PRADEEP KUMAR CHATTERJEE Vs. SHIBARATA CHATTERJEE

JUDGEMENT

(1.) THIS appeal at the instance of the appellant has been directed against the impugned judgment and decree dated 3.6.1993 and 5.7.1993 respectively passed in Miscellaneous Judicial Case No. 1 of 1987 "arising out of Title Suit No. 3 of 1985 in connection with Probate Case No. 2 of 1985" passed by Shri A.C. Das, District and Sessions Judge, Deoghar whereby and whereunder the Probate granted vide order dated 9.1.1987 of the Will dated 15.3.1976 executed by Sudhir Chandra Chatterjee deceased (hereinafter referred to as the testator) in favour of appellant in Title Suit No. 3 of 1985 was revoked.

(2.) THE said Miscellaneous Judicial Case No. 1 of 1987 was filed on 24.1.1987 by the petitioner -respondent Shib Brat Chatterjee for the revocation of the Probate granted on 9.1.1987 by the District Judge, Deoghar in favour of the appellant on the basis of the alleged Will dated 15.3.1976 purported to have been executed by the testator in his favour.

(3.) THE appellant has filed his show cause stating, inter alia, therein that the case of revocation filed by the petitioner -respondent is not maintainable either in law or on facts and the facts averred by the petitioner - respondent is false and incorrect. It is alleged that the Will dated 23.4.1977 purported to have been executed by the testator in favour of the petitioner -respondent is forged and fabricated. It is alleged that the testator has executed his last Will on 15.3.1976 in favour of the appellant and the permanent abode of the testator was at Deoghar within the jurisdiction of the Deoghar Court and the Will in favour of Roma Chatterjee is also forged and fabricated. It is alleged that though the testator had died at Calcutta but it is false to say that his permanent abode was at Calcutta. The further case of the appellant is that the testator has love and affection for this appellant as his son and the appellant was living in the said Deoghar house since long without paying any rent either in cash or in kind and the Will dated 15.3.1976 executed by the testator in his favour is genuine and valid and has been duly executed and the learned Court below on the basis of the evidence on the record found the Will genuine and valid and granted the Probate in respect thereof in his favour. It is also alleged that this appellant had no knowledge of the Probate proceeding pending before the Hon ble High Court, Calcutta and the order of Probate of the Hon ble High Court, Calcutta is not binding on him and the petitioner -respondent had knowledge of the Probate proceeding pending at the Deoghar Court and there is no ground available to the petitioner -respondent under Section 263 of the Indian Succession Act (hereinafter referred to as the said Act) for the revocation of the grant of Probate in favour of this appellant.