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GAUHATI HIGH COURT
H.N.Sarma, J.
Sanjeev Goswami -Appellant
Versus
Kanika Devi and Ors. -Resopndent
F.A. No. 88 of 1998
Decided On : 13-03-2007
Probate - Will - Indian Succession Act, Section 284 - The court discussed the provisions of Section 284 of the Indian Succession Act, which allows any person intending to object the issuance of a grant of probate to file a caveat. The court highlighted that after the caveat is lodged, if the caveator challenges the will, he is bound to file an affidavit in respect of the caveat within the time fixed. The court emphasized that the testamentary proceeding becomes contentious after the caveator files an affidavit in support of the caveat. The court found that the will executed by the testator had been duly proved as per law, and there were no suspicious circumstances in its execution.
Fact of the Case:
The case involved a probate petition filed by the daughters of the deceased to obtain probate of the will executed by their uncle. The appellant, claiming to be the adopted son of another family member, contested the probate on the grounds of exclusion from the citation and his alleged right over the bequeathed property.
Finding of the Court:
The court found that the appellant failed to establish his interest over the scheduled property and had not filed any objection to the granting of probate despite being afforded opportunities to do so. The court also noted that the will had been duly proved as per law, and there were no suspicious circumstances in its execution.
Issues: The main issue was the appellant's claim of right over the bequeathed property and his challenge to the probate on the grounds of exclusion from the citation.
Ratio Decidendi: The court emphasized that the appellant's failure to establish his interest over the scheduled property and his failure to file any objection to the granting of probate led to the dismissal of the appeal. The court also highlighted the provisions of Section 284 of the Indian Succession Act, which govern the filing of a caveat and the subsequent contentious nature of the testamentary proceeding.
Final Decision: The appeal was dismissed, and no costs were awarded.
2. I have heard Mr. K.N. Choudhury, learned senior counsel appearing on behalf of the appellant. None appears for the respondents. The connected records which were called for from the learned court below have also been perused.
3. To put in short the facts relating to filing of the present appeal, inter alia, are that the respondents herein are the daughters of Late Prafulla Goswami, the elder brother of Late Tarun Goswami who expired on' 6.9.1996. Late Taru Goswami expired without leaving any issue, his wife also pre-deceased him. Late Tarun Goswami had certain immovable properties and he executed a will on 10.9.1994 bequeathing those as mentioned in the schedule of the will in favour of the respondents who happened to be the daughters of his elder brother. As per the said will the respondent No. 1 was given about 1 K 5L of land out of 3 K 5L towards the extreme south of the scheduled properties. Likewise the respondent No. 2 has been bequeathed IK 5L of land in the middle portion and the respondent No. 3 was bequeathed with IK 5L of land situated in the northern portion of the schedule properties along with a portion of the Assam Type house standing in the respective portion of the bequeathed land. After the death of the testator, the respondents filed the probate case No. 188/97 in the court of learned District Judge, Guwahati for obtaining probate of the will executed by late Tarun Goswami.
4. Upon receipt of the application probation the learned trial Judge vide order dated 1.5.1997 directed to issue notice and accordingly notice was issued to all the persons as mentioned in the petition as well as a general citation was also issued to all concerned. A copy of the notice was also affixed in the last evidence of the executor. The notices were duly served on 18.7.1997 and 19.8.1997. At that stage the appellant on 26.8.1997 by filing petition No. 682/97 lodged a caveat expressing his intention to contest the proceeding and prayed time to file objection and also prayed for furnishing him a copy of the will. The learned trial Judge vide order dated 26.8.1997 granted time till 22.9.1997 for filing objection by the appellant On which date a copy of the probate petition as well as a copy of the will was served upon the appellant and the case was fixed on 20.11.1997 for filing objection. Although thereafter the case was fixed on 20.11.1997,3.1.1998,2.2.1998,27.2.1998 no objection was filed by the appellant. The learned trial Judge thereafter fixed the case for hearing.
5. During the course of hearing the respondents examined three witnesses including the attesting witness in support of the will. Apart from PW. 1, one of the attesting witness and the other witness also proved the will and the signature of the testator hereon. The said attesting witness, PW.2 who is a practicing Advocate deposed inter-alia that he drafted the will Ext.1 and the executor Tarun Goswami executed the same in his chamber by putting his signature in his presence, that at the time of execution he was physically and mentally fit. This witness also stated that other attesting witness, namely, Sri N.N. Choudhury who expired in the meantime also put his signature in the will as Ext.1/7.
6. PW.3 is the Advocates' Clerk who wrote out the will from the draft prepared by PW.2 in his chamber. He also proved his signature in the will as Ext. 1/7.
6. The learned trial Judge upon consideration of the materials and evidence on record and the execution of the will having been duly proved in accordance with law, vide order dated 22.6.1998 allowed the petitioner and directed to issue probate of the will. After payment of necessary stamp duty, the will was produced before the Presiding Officer, the new Presiding Officer after transfer of earlier one. Bu
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