1. Heard Mr. P. K. Kalita, learned counsel for the appellant. Also heard Mr. K. Sarma, learned counsel representing the respondents.

2. This appeal, filed under Section 299 of the Indian Succession Act, 1925, has been preferred against the judgment and order dated 22.03.2002 passed by the Court of Additional District Judge, Dhubri in Title Suit (Probate) No.3/2000 rejecting the application filed by the appellant praying for probate of the Will executed by Benilal Halawai.

3. The brief factual matrix of the case, as apparent from the record, is that Benilal Halawai was the owner of a plot of land measuring 5¾ lechas together with a two storied building standing thereupon covered by Dag No.371 of Patta No.220 (new)/315 (old) of Ward No.V of Dhubri Municipality. Benilal Halawai, during his lifetime, had executed a Will bequeathing the aforesaid property to his daughter–in-law Smti. Rajkumari Gupta who is the wife of the elder son of the testator, viz. Bharat Lal Gupta. The aforesaid Will was written on 24.12.1991 and executed by the testator on 27.12.1991. Dr. Rajkumar Mahato, the Chief Medical and Health Officer, Dhubri Civil Hospital had examined the testator and thereafter, issued a certificate dated 27.12.1991 certifying his sound health condition. The aforesaid Will bears the signature of two attesting witnesses, whereby the appellant, namely, Sri Tarakeswar Majumdar had been appointed as the executor of the Will.

4. While seeking probate in respect of the aforesaid Will, the petitioner i.e. the executor of the Will had stated that the Testator viz., Benilal Halawai, who died on 07.07.1992 at Dhubri Town leaving behind his two sons i.e. Sri Bharatlal Gupta and Sri Banshilal Gupta and widow Smti. Debi Shah as the surviving legal heirs, had other immoveable properties which were inherited by the other legal heirs.

5. On receipt of the notices in connection with the aforesaid proceeding, two of the legal heirs of the Testator viz. Banshilal Gupta and Smti. Debi Shah had entered appearance and contested the suit by filing joint objection. One of the grounds on which they had resisted the grant of probate was that the Testator did not have any right to bequeath the Schedule-A property in favour of Smti. Rajkumari Gupta on account of the fact that his son Banshilal Gupta and Debi Shah i.e. the respondent Nos. 1 and 2 had earlier filed Title Suit No. 47/1989 in the Court of Civil Judge (Junior Division) No.1, Dhubri against the Testator and his elder son Bharatlal Gupta inter-alia praying for a decree of declaration; partition and a decree of injunction concerning the immoveable properties mentioned therein which also included the Schedule-A property. In the said Title Suit, a separate application under Order XXXIX Rules 1 & 2 of the Code of Civil Procedure, being registered as Misc.(J) Case No. 37/1989, was also filed wherein an order of temporary injunction had been issued restraining the Testator from alienating the property in favour of Bharatlal Gupta or to any other person. The aforesaid order of temporary injunction remained in force till 07.07.1992. The respondents contended that since the Will had been purportedly executed by the testator on 24.10.1991 during the time when the order of injunction was in force. Hence, the same, having been executed in violation of the order of temporary injunction, is non-est in the eye of law and liable to be declared so. It is also the case of the respondents/OPs that the Will dated 24.12.1991 was obtained by the beneficiary, namely, Smti. Rajkumari Gupta, by practicing fraud upon the Testator and under suspicious circumstances having a vitiating effect on the said document. As such, the prayer for grant of probate was liable to be rejected.

6. On the basis of the pleadings of the parties, the following five issues were framed by the Court below for trial.

“1. Whether the petition is maintainable?

2. Whether the Testator has got right to execute the Will in favour of Smti. Rajkumari Gu