Anan Ghosh vs Xxx

Heard Mr. S.B. Debnath, learned counsel appearing for the appellant, Smt. Anan Ghosh.

Facts of the case, in brief are that the appellant, Smt. Anan Ghosh instituted a suit under Section 276 of the Indian Succession Act, 1925 for granting "Probate of Last Will and Testament" dated 01.10.2015, executed by the testatrix, Smt. Laxmi Rani Chowdhury(now deceased), wife of Lt. Manindra Narayan Chowdhury,.

2.1. Manindra Narayan Chowdhury and Laxmi Rani Chowdhury had no issue. They brought the appellant, Smt. Anan Ghosh during her tender age and brought her up and when she attained the age of majority, she was given marriage by them. Thereafter, Manindra Narayan Chowdhury had expired.

2.2. When Laxmi Rani Chowdhury became old, she bequeathed her properties in favour of Smt. Anan Ghosh, the appellant herein by executing a 'WILL' dated 01.10.2015.

2.3. It is revealed from the record that one of the attesting witnesses, namely Md. Mamun Aktar had appeared before the learned trial Court and stated that in front of him the executor of the 'WILL' i.e. Laxmi Rani Chowdhury executed the 'WILL' in favour of the petitioner-appellant. Before she put her signature, the contents of the 'WILL' were read over to the executrix and after being satisfied she put her signature therein.

2.4. One advocate, namely Sri Bikash Ch. Deb was the custodian of the 'WILL'. After the death of Laxmi Rani Chowdhury, he handed over the copy of the 'WILL' to the petitioner-appellant.

2.5. Thereafter, the appellant-petitioner had approached the Court below by filing an application praying for granting „Certificate of Probate' of the said 'WILL'. PW3, Sri Bikash Ch. Deb also appeared before the Court and supported the facts stated in the application for probate. They have categorically stated in their evidences that late Laxmi Rani Chowdhury was suffering from breast cancer which prompted her to execute the 'WILL' dated 01.10.2015 bequeathing all her properties in favour of the petitioner-appellant.

From the order dated 27.07.2018 passed by the trial Court, it appears that the learned trial Judge had dismissed the application filed by the applicant-petitioner, appellant herein for the reason that the Notary Public, who authenticated the 'WILL' was not examined. Further, the learned trial Judge held that Mamun Aktar in his evidence had stated that the testatrix had signed the 'WILL', but, from the 'WILL' it was revealed that the testatrix had put her thumb impression. Having observed thus, the learned trial Judge held that due to such suspicious circumstances, the „Certificate of Probate' could not be granted in favour of the applicant-petitioner, appellant herein.

In my opinion, the finding of the learned trial Judge is erroneous and perverse.

Firstly, PW2, Md. Mamun Akter, the attesting witness deposed that late Laxmi Rani Chowdhury had signed the 'WILL'. He did not depose that the testatrix had given her signature. "Signing" a document may be made by thumb impression. Signing does not always mean one‟s signature. It may be said herein that it was the way of expression of the attesting witness, PW2 that the testatrix had signed the 'WILL'.

Secondly, it is observed that the petitioner-appellant, Smt. Anan Ghosh never said that she was the custodian of the 'WILL'. It appears that the custodian was PW3 and after the death of the testatrix, PW3 had handed over the original 'WILL' to Smt. Anan Ghosh, the appellant herein.

Thirdly, it is revealed from the record that public notice was issued through a well circulated newspaper in compliance of the order of the court inviting objections from any interested person(s) against the claim of the present appellant-petitioner. No one came forward to contest the claim of the appellant-petitioner. So, in my opinion, non-examination of the Notary Public, who authenticated the „WILL' shall not in any way discredit the testimonies of PWs 1, 2 and 3.

Having held so, the application of the applicant-petitioner, Smt. Anan Ghosh, the appellant herein for granting „Certificate of Probate' in her favour should be allowed. Accordingly, the order dated 27.07.2018 passed by the learned Addl. District Judge, Court No.3, West Tripura, Agartala is hereby set aside and quashed and it is ordered that appellant-petitioner, Smt. Anan Ghosh is entitled to get the 'Certificate of Probate' in regard to the properties mentioned in the Schedule of the plaint.

In the result, the instant appeal is allowed. Draw the decree accordingly for issuance of „Certificate of Probate' in favour of the appellant. Needless to say, the original „WILL' shall be returned back to the appellant after drawing the decree.