2005 Supreme(Gau) 717

IN THE HIGH COURT OF GAUHATI
Brojendra Prasad Katakey, J.
Durlabh Chandra Bhattacharjee – Appellants
Vs.
Atul Barthakur – Respondent
M.A. (F) No. 45 of 1996
Decided On: 23.09.2005

The Court held that the propounder of the Will has discharged his burden of proving due execution of the Will by Maheswari Debi and also there is no suspicious circumstances existed and hence he is entitled to get the probate of the Will executed by Maheswari. Accordingly the probate of the Will executed by Maheswari Debi is granted.

Headnote:

The Court held that the propounder of the Will has discharged his burden of proving due execution of the Will by Maheswari Debi and also there is no suspicious circumstances existed and hence he is entitled to get the probate of the Will executed by Maheswari. Accordingly the probate of the Will executed by Maheswari Debi is granted.

Fact of the Case:

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 a will executed by Maheswari Debi, wife Late Golok Ch. Barthakur. 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 a will executed by Maheswari Debi, wife Late Golok Ch. Barthakur. 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.

Finding of the Court:

The Court held that the propounder of the Will has discharged his burden of proving due execution of the Will by Maheswari Debi and also there is no suspicious circumstances existed and hence he is entitled to get the probate of the Will executed by Maheswari. Accordingly the probate of the Will executed by Maheswari Debi is granted.

Issues: 1) Whether there is cause of action for the suit? 2) Whether the petition for probate has been properly drawn up, subscribed, verified and presented? 3) Whether the testatrix, Maheswari Devi, had any right or title to dispose of the properties under the will in question? 4) Whether the deceased Maheswari Debi executed the will? 5) Whether the Will was executed by Maheswari Devi voluntarily and consciously, fully knowing the contents and implications? 6) Whether the will was obtained by the Plaintiff Petitioner fraudulently and by exercise of undue influence as he being an attorney of Maheswari Debi? 7) Whether the Will is shrouded by suspicious circumstances for which it is liable to be struck out? 8) What relief?

Ratio Decidendi: The Court held that the propounder of the Will has discharged his burden of proving due execution of the Will by Maheswari Debi and also there is no suspicious circumstances existed and hence he is entitled to get the probate of the Will executed by Maheswari. Accordingly the probate of the Will executed by Maheswari Debi is granted.

Final Decision: The Court held that the propounder of the Will has discharged his burden of proving due execution of the Will by Maheswari Debi and also there is no suspicious circumstances existed and hence he is entitled to get the probate of the Will executed by Maheswari. Accordingly the probate of the Will executed by Maheswari Debi is granted.