Form No. J (2)

IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE Present:

The Hon’ble Justice Debangsu Basak And The Hon’ble Justice Md. Shabbar Rashidi FA 88 of 2022 Bijaylaxmi Ghosh alias Mili alias Babli Ghosh alias Mily Ghosh vs.

Alolika Guha & Anr.

with FAT 707 of 2018 Bijaylaxmi Ghosh alias Mili alias Babli Ghosh @ Mily Ghosh Vs.

Alolika Guha & Anr.

For the Appellant : Mrs. Sohini Chakraborty, Advocate Mr. Arijit Sarkar, Advocate For the Respondents : Mr. Probal Kr. Mukherjee, Senior Advocate Mr. Rajat Dutta, Advocate Heard on : 15.01.2025 and 16.01.2025 Judgment on : 16.01.2025 DEBANGSU BASAK, J.:-

1. Two First Appeals are heard analogously as they are between the same parties and are directed against the common judgment and order disposing of two proceedings which were heard analogously by the learned Trial Judge.

2. F.A. No.88 of 2022 is directed against the order dated September 29, 2018 passed by learned District Judge Special Court at Balurghat, District-

Signed By :

Dakshin Dinajpur in O.C. Suit No.2 of 2008 while FAT No.707 of 2018 is directed against the order dated September 29, 2018 passed in Misc.Case No.2 of 2006 (Probate Suit no.11 of 2003).

3. Learned advocate appearing for the appellant submits that, the appellant is the daughter of deceased testator. The testator left behind a Will dated September 10, 1996 (hereinafter referred to as the first Will). Testator expired on October 19, 2002. The testator was survived by his widow, daughter and son at the time of his death.

4. Learned advocate appearing for the appellant submits that, the application for grant of Probate of the first Will of the testator was registered as Probate Suit No.11 of 2003. Probate of the first Will was granted on September 29, 2005.

5. Learned advocate appearing for the appellant submits that, the son of the testator thereafter, applied for grant of probate of a document claimed to be the Will of the testator dated June 23, 2001(hereinafter referred to as the second Will). Son of the appellant also applied for revocation of the grant of Probate of the first Will. Application for grant of Probate of the second Will of the testator was registered as OC Suit No.2 of 2008. Application for revocation of the Probate of the first Will was registered as Misc.Case No.2 of 2006.

Signed By :

6. Learned advocate appearing for the appellant submits that, appellant filed a suit being Title Suit No.49 of 2005 seeking partition of the immovable properties. Such suit is still pending.

7. Learned advocate appearing for the appellant submits that, the son of the testator expired on July 25, 2015. On his death, the wife, daughter and son were substituted as plaintiffs in O.C. No.2 of 2008 and petitioners in Misc.Case No.2 of 2006. O.C. No.2 of 2008 and Misc.Case No.2 of 2006 were heard analogously.

8. Learned advocate appearing for the appellant submits that, prior to the death of the son of the testator, he affirmed an affidavit-in-chief in OC Suit No.2 of 2008 as also Misc.Case No.2 of 2006. Such affidavit was treated as examination-in-chief at the trial of the two proceedings. Daughter of the deceased son was examined as plaintiff witness no.1 at the trial. In the two suits, in aggregate the respondents herein as plaintiffs/petitioners at the trial examined three witnesses, namely, the daughter of the deceased son of the testator, the alleged scribe of the alleged second Will, as also the alleged attesting witness of the alleged second Will. They were examined as Plaintiff Witness (PW) Nos.1, 2 and 3 respectively.

9. Learned advocate appearing for the appellant submits that, P.W.1, in a deposition did not advance the case of the respondents herein in the sense Signed By :

that, she did not testify that, she was a witness to the Will, saw the testator execute the Will or saw any of the attesting witness, witnessing the execution of the Will.

10. Learned advocate appearing for the appellant then draws the attention of the Court to the deposition o