IMPORTANT POINT
The court affirmed that the execution of a Will must comply with statutory requirements, and the burden of proof lies on those alleging its invalidity.

JUDGMENT :

ROBIN PHUKAN, J.

Heard Mr. B.D. Deka, learned counsel for the appellants and also heard Mr. S.S. Sarangi, learned Senior Counsel, assisted by Mr. D. Rathi, learned counsel for the respondents.

2. In this regular first appeal, the appellants have challenged the correctness or otherwise of the judgment and order dated 13.03.2009 passed by the learned District Judge, Tinsukia, in Misc. (Probate) Case No.87/2001. It is to be noted here that vide impugned judgment and order dated 13.03.2009, the learned District Judge, Tinsukia, (Trial Court for short), had granted probate of the Will, dated 10.02.1987, executed by Suti Devi Bawari, W/o Late Nandlal Bawari.

3. The back ground facts leading to filing of the present appeal is briefly stated as under:-

“The respondent No.1 herein Dr. Monohar Bawari has filed a petition under Section 276 of the Indian Succession Act, 1925 for issuance of probate of the Will of late Suti Devi Bawari, who suffered demise on 11.12.1988. His case is that his mother late Suti Devi Bawari was a permanent residence of Parbotia, Tinsukia Town and she expired on 11.12.1988, at her residence at Parbotia. She left behind the respondent/petitioner Dr. Monohar Bawari and the opposite parties, namely, Mahabir Prasad Bawari, Banawarilal Bawari, Ram Niranjan Bawari, Rajkumari Khetawat and Rajani Singhania, who are her near relatives. Before her death, late Suti Devi Bawari has executed her last Will and testament in presence of witnesses on 10.02.1987. By virtue of the said Will, the testatrix had appointed the respondent No.1/petitioner as the executor of the Will. The value of the bequeathed estate by the said Will is estimated at Rs.3,00,000/- and the amount of liabilities and lawful deductions of the said testatrix was Rs.35,000/- as described in the Schedule of the petition. The petitioner had earlier filed one probate case, being Probate Case No.11/1998 and Misc. Probate Case No.34/2001 for grant of probate, but the same were dismissed for default. The Will was executed by the testatrix in her residence at Parbotia and at that time she was in good health and mind and therefore, the petitioner has prayed for issuance of the probate of the Will executed by his mother late Suti Devi Bawari before the learned District Judge, Tinsukia, by filing a petition being Misc. (Probate) Case No. 87/2001.

The appellants herein had filed written objection in the aforementioned petition. Ram Niranjan Bawari, opposite party (O.P.) No.3 had filed written statement, wherein he had taken a stand that the petition is not maintainable in law and facts and the petitioner has no right to file the present probate case, as the Will so executed, apart from being false, fabricated and concocted, is not tenable in the eye of law. However, he admitted the death of testatrix on 11.12.1988 and also admitted that at the time of her death, she was staying at Tinsukia at the residence cum Nursing Home of the petitioner, where she came for her treatment and the O.P. No.3 had also admitted the contents of paragraph Nos.2 and 6, of the petition, however, he denied execution of the Will by late Suti Devi Bawari on 11.02.1987, being her last Will and he denied the validity and legality of the Will and also denied appointment of the petitioner as executor of the same and also denied the value of the property and the expenses incurred by the petitioner towards the funeral and Shradha ceremony and that the value of the subject matter of the Will, would be more than Rs.16,00,000/- and that the subject matter of the Will came to the share of Nandlal Bawari out of Hindu Undivided Family, namely, M/s Chunnilal Netram and said Nandlal Bawari died on 13.01.1970 leaving behind Suti Devi Bawari, Mahabir Prasad Bawari, Ram Niranjan Bawari, Banwarilal Bawari, Dr. Monohar Bawari, Rajkumari Bawari and Rajani Bawari and that the dispute arose between the heirs of said Nandlal Bawari relating to