Radheshyam Sutradhar vs Mohini Mahan Sutradhar his heirs Bhabesh Sutradhar and Others

D. Pathak, Actg. C.J.

This appeal is directed against the judgment and order passed by the learned District Judge, L.A.D. Gauhati Probate Title Suit No. 13 of 1969 on 15.5.72. whereby the probate was granted to the Plaintiff Mohini Mohan Sutradhar.

The brief facts loading to the present appeal is that Golapi Sutradhar, after the death of her husband Purna Chandra Satradhar, died on 28.9.68 being in possession of property devolved on her on the death of her husband. It is the case of the Plaintiff Mohini Mohani Suradha that during the life time of Golapi, on 24.1.1957 the (SIC) a (SIC) of the Plaintiff appellating him as the solt executor in respect of 121 (SIC) of land given in the schedule valued at Rs. 3,000/- on these facts the Plaintiff prayed for the grant of probata with the copy of the will. In the suit general and special citations were issued. There the Appellant Radheshyam Sutradhar filed an objection alleging that the will purported to be executed on 24.1.1957 by Golapi Sutradhar in favour of the Plaintiff was a fabricated one. The second contention raised in the objection was that Golapi, the executrix having only life interest in the property had no legal right to bequeath the property by will. Another contention raised by the Appellant-objector was that the grand daughter of Golapi through her daughter Rakchal Dasi was not made a party. Therefore, the. suit was bed for non-joinder.

On the above pleadings, the following seven issues were formulated:

Whether the claim is maintainable ?

Whether Golapi Suradhar had right to execute the Will ?

Whether the Will in question is genuine ?

Whether the. valuation is proper

Whether the Will question is the product of collusion ?

Whether the claim is bad for non-joinder of parties ?

What relief the claimant is entitled to?

The learned trial Court on consideration of the evidence decided all the issues in favour of the Plaintiff.. Hence the Appellant being aggrieved, has preferred this present appeal.

Mr. S.K. Sen, the learned Counsel appearing on behalf of the Appellant contends that on 24.1.1957 Golapi did not have any bequeathable interest in the property to make any will. The second contention of1 the learned Counsel is that the will was not executed in conformity with the provision of Section of the Succession Act. The third contention of the (SIC)counsel is that clearly there was non joinder of parties, (SIC)as the daughter of Rakhal Dasi, being the grand daughter of Golapi has not been made a party.

To take up the last point first it suffices to say that there was a general and special citation about the probate suit. Therefore, it will not be unreasonable on the part of the learned trial Court to hold that the suit was not bad for non-joinder of the parties. Even today the daughter of Rakhal Dasi is not before us to contest and to prefer any claim. That will be a matter between the daughter of Rakhal Dasi and the Plaintiff, if there is any But so far the present Appellant is concerned, in our judgment the (SIC)ulu was not bad for the non� joinder of the parties.

So far the first contention raised on behalf of the Appellant, we are of opinion that this contention is claarly misconceived in view of the fact that Section 14 of the Hindu Succession Act which came into operation on the 17th of June, 1956, Golapi had the absolute right, title for the property which devolved on her on the death of her husband prior to coming into force of the Hindu Succession Act. In that view the legal position Golapi was entitled to execute the will as she had the bequeathable interest in the property scheduled to the will.

Regarding the second contention, we are of opinion that the will was executed in conformity with the provision of Section 64, That has been properly testified by P.W''s 1 and 2, who are disinterested to the cause of action.

P.W. 1, Dayaram Das is the scribe. He has stated that on 24.1.57 he wrote the will which is marked as Ext. 1 as per narration of Golapi Sutradhar. It is in his evidence that after writing Ex.1 the same was read over and Golapi having admitted it put her thumb impression in Ext. 1, which was endorsed By the witness under the thumb impression of Golapi. Ext. 1(1) and 1(2) are the endorsements made by the witness and her has put his signature at Ext. 1(3) and Ext, 1(4) as writer of the will Nothing has been brought out t? shaken of this witness in the cross-examination.

P.W. 2, Mitharam Kalita is the attesting witness. It is this evidence that Golapi executed this will. Ext. 1 Which was written by .P.W. 1, Dayaram Das. He put bis signature in Ext. 1 as Ext, 1(5), the other witnesses Nandalal, Rejendra Mundal were also the signatories to Ext. 1. It is in his evidence that witness was present at the time of writing and execution of the will and the executrix was also present. He has further stated that the will was written at the instance of executrix. It is further found from the evidence of this witness that the will was registered and he was present at the time of registration. He has deposed that Golapi admitted the contents of the will before the Sub-Regiserar.

P.W. 3, the Plaintiff has given the clear version of the transaction that took place about the execution of the will.

On consideration of the evidence of P. Ws, 1, 2 and 3 we find that the learned trial court rightly held that the will was genuine and it was executed in accordance with the provision of Section 63 of the Succession Act,

In the result we do not find any merit in this appeal and the same is dismissed. But in the peculiar circumstances of the we pass no order as to costs.