A. K. SEN, Sudhir Ranjan Roy

( 1 ) THIS appeal arising out of a probate proceeding raises a short but tricky point, not hither to introverted but to some extent clouded by a host of judicial decisions, some touching the point rather tangentially and some hooding conflicting views. The point has been raised from time to time till recent years demanding meticulous judicial care and attention but still leaving scope for some controversy.

( 2 ) THE petitioner appellant before us as executor of he will left by one Sarala Bala Dasi, started a proceeding for the probate of the said will before the District Delegate art Rampurhat, being Probate Case No. 36 of 1980.

( 3 ) A dispute having been raised by the opposite party, a daughter of Sarala Bala, regarding he genuineness of will, the matter became contentious and on August 8, 1980 the application was registered as Probate Case No 56 of 1980 before the learned District Judge, Birbhum.

( 4 ) THE case was set down for hearing on June 2, 1983 before a learned Additional District judge but he petitioner having failed to appear when it was called on for hearing, he case was dismissed for default.

( 5 ) ON June 27, 1983 the petitioner start

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