The right to apply for probate is continuous, and the burden of proof lies on the propounder to establish the Will's validity and genuineness, which was satisfied in this case.

JUDGMENT :

DEVASHIS BARUAH, J.

1. Heard Mr. D Kalita, the learned counsel appearing on behalf of the appellant. Mr. AK Purkayastha, the learned counsel appears on behalf of the legal heirs of Late Bhupesh Prodhani, who was the original respondent No.1.

2. This is an appeal under Section 299 of the Indian Succession Act, 1925 (for short, ‘the Act of 1925’) challenging the judgment and order dated 09.08.2011 passed in Misc. Probate Case No.07/2006.

3. This Court before taking up the grounds of objections raised in the instant memo of appeal would like to first deal with the facts which led to the filing of the instant appeal.

4. For the purpose of convenience, the parties herein are referred to in the same status as they stood before the Court of the learned District Judge, Dhubri.

5. A Will purportedly executed by one Late Hiron Prova Prodhani (since deceased) dated 11.05.1987 is the subject matter of the instant proceedings. Her son Bhupesh Prodhani (since deceased) as Applicant, during his lifetime filed an application seeking probate of the Will dated 11.05.1987 which was registered and numbered as Misc.(P) No.07/2006.

6. Pursuant to the filing of the said application, the Appellant herein who was the opposite party No.1 in the said proceedings filed a written statement contesting the said Will. It was the case of the opposite party No.1 in the said written statement that after the death of his father, his mother Late Hiron Prova Prodhani was living with him in his house and since the first part of 1985, she was ill and was suffering from breast cancer, for which, she was treated with cobalt therapy from 19.06.1985 at Dr. Bhubaneswar Baruah Cancer Institute at Guwahati. During her stay with the opposite party No.1, she never expressed anything about her intention of making any Will in respect to the property mentioned in the Will in favour of the son of Applicant or to anybody else. It was stated that 2(two) months prior to her death, she shifted to the house of Applicant. The opposite party No.1 further stated that Late Hiron Prova Prodhani was bedridden on account of treatment of radiotherapy from June 1985 till her last breathe i.e. 11.07.1987 and she was mentally incapable of giving any sound, valid and proper consent and opinion during the said period. It was further mentioned that Late Hiron Prova Prodhani was a literate lady, having knowledge both in English and Assamese and she was a permanent member of the Governing Body of Chilarai College, Golakganj, where she used to sign both in English and Assamese in the meetings she attended. It was denied that Late Hiron Prova Prodhani had put her thumb impression in the Will dated 11.05.1987 and it was alleged that the said document is a fabricated and manufactured document by the Applicant and got the same registered secretly through unfair means without the valid consent and opinion of the Testatrix i.e. Late Hiron Prova Prodhani and without giving any sense to other opposite parties.

7. It was also mentioned that the alleged Will was manufactured by practicing fraud to deprive the other legal heirs and successors of the deceased and the filing of the application for probate of the purported Will, after the lapse of about 18 years is an act of conspiracy of the applicant for unlawful gain and benefit through foul play.

8. It is pertinent to mention herein that Late Hiron Prova Prodhani expired leaving behind various legal representatives which included two sons, four daughters and granddaughters and grandsons. Notices were also issued upon the other legal representatives. None of the legal representatives except the Appellant herein contested the Will.

9. The probate proceedings being opposed, the said probate proceedings took the form of a regular suit in terms with Section 295 of the Act of 1925. Accordingly, the applicant of the probate application i.e. Late Bhupesh Prodhani became the plaintiff and the Opposite party No.1 became the defendant. The learned District Judge, Dhubri