P.N. Sinha, J.
1. This first appeal is at the instance of dendants No. 1(a) to 1(c) in a probate proceeding and is directed against the Judgment and decree dated 29th June, 2005 passed by the learned Additional District Judge, Fast Track Court No. 1, Alipore in Original Suit No. 3 of 2005 (Old No. O.S. 56 of 1950) thereby allowing the application for grant of probate filed by the plaintiff/respondent as executor in respect of the Will dated 1st March. 1949 executed by the testator Bimal Behari Sen (since deceased) in favour of his daughter Gita Kani Sen.
2. The facts of the case may be summarised as follows:
The name of plaintiff has appeared in the cause title of appeal and in Lower Court Record in different manner; somewhere as Arun Kumar Bose, somewhere Arun Coomar Bose and in the Will as Aroon Kumar Bose. For the sake of convenience in this judgment we shall use his name as Aroon Kumar Bose.
3. The plaintiff/respondent instituted the suit for grant of probate of the last Will and testament of one Bimal Behari Sen (since deceased) dated 1st March, 1949 bequeathing premises No. 29, Pipe Road, Khidderpore exclusively to his daughter, Gita Rani Sen who was then a minor. In the said Will one Ajit Kumar Bose was appointed as the first executor. His son Aroon Kumar Bose was made the second executor. It was mentioned in the Will that in case the first executor was not Willing to do needful or apply for probate of the Will or to act as executor in the said Will, the second executor would be entitled to do the needful. The first executor Ajit Kumar Bose refused to act as executor and as such the second executor namely Aroon Kumar Bose, as plaintiff, filed the application on 8.12.1949 for grant of probate on the Will dated 1st March,1949 made by the testator Bimal Behari Sen and as it was contested it was registered as O.S. No. 56 of 1950.
4. It was disclosed in the said application for probate that the deceased was governed by the Dayabhaga School of Hindu Law and at the time of his death the testator had his permanent place of residence at 26B, Ashutosh Mukherjee Road within the Police Station Bhawanipore. The said Will was duly executed and attested in presence of witnesses and was proved by the declaration of Dr. Arun Prasad Ghosh, one of the attesting witnesses of the Will. The testator at the time of his death left behind him his surviving son Broja Behari Sen and three daughters namely, Smt. Biva Rani Mitter, Smt. Mira Rani Ghosh and Kumari Gita Rani Sen and widow mother Smt. Surabala Sen. It was also mentioned in the said application that no previous application was made to any Court for probate of the said Will or for letters of administration. The deceased prior to his death deposited the said Will with the Registrar of Assurance, Calcutta for safe custody. The petitioner has learnt that Broja Behari Sen (since deceased) has entered a caveat in the case and accordingly he filed the application for probate and is ready to pay ad valorem duty after the caveat is discharged.
5. Broja Behari Sen (since deceased) contested the suit by filing written statement and, inter alia, contended that his father died leaving behind him as his only son, two married daughters, one unmarried daughter and aged widow mother. The applicant Aroon Kumar Bose is the son of Ajit Kumar Bose, brother of the wife of the testator and they were residents of 76, Amherst Row, Calcutta. Ajit Kumar Bose and Aroon Kumar Bose are suppliers of labourers to tea gardens and have allied business situated at Room No. 2, Church Lane, Calcutta. Since the death of grandfather late Bipin Behari Sen, his father was all along under the influence and control of Ajit Kuinar Bose and his family. His father was made Director and employee in some of the concerns of the said Ajit Kumar Bose and Aroon Kumar Bose. Shares of the said companies stood in his name which were transferred by him in their favour in or about the time of execution of the alleged Will.
6. On 13th August, 1947, Ajit Kumar Bose influenced his father to execute a trust deed in respect of all his immovable properties and by the said trust deed the testator Bimal Behari Sen made himself first trustee and Broja Behari Sen succeeding one. One of the clauses of the trust deed was that his father could revoke trust in respect of one property namely 29, Pipe Road, Khidderpore, Calcutta in respect of which the alleged Will has been brought into existence. After execution of the trust deed, Ajit Kumar Bose started his influence over Bimal Behari Sen for the purpose of revoking trust deed and several attempts were made by him also to influence the defendant to agree to the said proposal. Constant pressure and undue influence exerted by Ajit Kumar Bose and Aroon Kumar Bose on his father was too much and it resulted into showing signs of insanity on his father in or about December, 1948. Taking advantage of this opportunity Aroon Kumar Bose and Ajit Kumar Bose removed his mother from 26B, Ashutosh Mukherjee Road to their residence at 76, Amherst Row and by that time his father Bimal Behari Sen was completely under the grip and influence of Ajit Kumar Bose and Aroon Kumar Bose. Gradually Bimal Kumar Sen became mentally deranged and in or about February, 1949 Aroon Kumar Bose removed his father and old grandmother to 29, Pipe Road, Calcutta leaving him and his wife and their minor daughter at premises No. 26B, Asutosh Mukherjee Road. All papers, books of accounts, documents etc., were removed by Ajit Kumar Bose and Aroon Kumar Bose and they posted a Nepali 'darwan' at their residence. His mother died on 15th March, 1949 and deed of revocation of the trust in respect of 29, Pipe Road was executed on 19th February, 1949 and registered on 22nd February, 1949. A few days prior to death of his mother the alleged Will dated 1st March, 1949 was created. A few days prior to death of Bimal Behari Sen, the said Ajit Kumar Bose took away a receipt of document from their house and the said receipt was related to the alleged Will which he came to know later on. On 10th May, 1949 Bimal Behari Sen left his house at early morning in very agitated mood and returned home at about 11.30 p.m. when Aroon Kumar Bose cunningly took away his father Bimal Behari Sen to his residence at 76, Amherst Row. There in his presence and in presence of others his father Bimal Behari Sen demanded back the alleged Will from Ajit Kumar Bose for the purpose of destroying the same but they refused to return the Will. Their attempt to move his father Bimal Behari Sen to Ranchi Mental Hospital was prevented by Ajit Kumar Bose and on 13th May, 1949 at about 9.00 a.m. he was informed by Ajit Kumar Bose that his father Bimal Behari Sen has committed suicide by hanging.
7. The original defendant Broja Behari Sen further stated in written statement that his father was compelled to execute the Will under coercion, threat and undue influence of Ajit Kumar Bose and Aroon Kumar Bose. His father Bimal Behari Sen had no testamentary capacity at the time of execution of the Will and it was not his last Will and testament and the Will was not validly executed and attested. His father had no confidence in the moral character of Aroon Kumar Bose. Arun Prasad Ghosh was the family physician of Ajit Kumar Bose and was under their control. The other attesting witness Anil Ghosh was a relative of Aroon Kumar Bose and Ajit Kumar Bose and the third attesting witness Prem Nihur Basu was article clerk of Anil Ghosh (Solicitor).
8. Smt. Surabala Sen, mother of the deceased testator also filed a written statement almost in same line with the written statement filed by Broja Behari Sen but she did not contest the suit subsequently.
9. After the death of original defendant No. 1 Broja Behari Sen on 19.10.91, his heirs and legal representatives were substituted and as defendant Nos. 1(a) to 1(c) they contested the suit by filing separate written statement and additional written statement. The substituted defendants in their written statement mentioned almost same facts and circumstances which were stated in the original written statement submitted by deceased Broja Behari Sen. In addition to the statements of the original written statement, the substituted defendants in their written statement introduced some new facts and made some new allegations which were of there in the original written statement submitted by late Broja Behari Sen. The present contesting defendants in their written statement added that the purported revocation clause was incorporated in the deed of trust under the influence and mounting pressure of Ajit Kumar Bose and Aroon Kumar Bose. Their simple minded predecessor Broja Behari Sen could not say anything to his maternal uncle Ajit Kumar Bose and cousin brother Aroon Kumar Bose. The conspiracy of Ajit Kumar Bose and Aroon Kumar Bose was so deep-rooted that a Nepali darwan was posted by Aroon Kumar Bose at 29, Pipe Road who prevented Broja Behari Sen and other persons to meet the insane Bimal Behari Sen and his old widow mother Surobala Sen. Due to the mounting pressure and undue influence exerted on Bimal Behari Sen by Ajit Kumar Bose and Aroon Kumar Bose signs of insanity and abnormality began to grow up within Bimal Behari Sen since December, 1948. Bimal Behari Sen was thereafter devoid of senses and he had no testamentary capacity to execute the Will.
10. Since December, 1948 Gita Sen was voluntarily staying with Aroon Kumar Bose leaving the care and protection of grandmother Surobala Sen. All efforts of Broja Behari Sen and his sisters to bring back Gita Sen to their house were frustrated by Aroon Kumar Bose and Gita Sen. They also arranged marriage of Gita Sen but as she was suffering from tuberculosis (in short TB), which was almost incurable in those days she refused to marry. Gita Sen preferred to live with Aroon Kumar Bose as his coneubine. All the attempts of Broja Behari Sen and his sisters to shift Bimal Behari Sen to Ranchi Mental Hospital was prevented and frustrated by Aroon Kumar Bose. On 13th May, 1949 Bimal Behari Sen was killed at 76, Amherst Row. Calcutta at the residence of Aroon Kumar Bose and Ajit Kumar Bose, though it was informed to Broja Behari Sen and his family that Bimal Behari Sen had committed suicide. It appears from the certified copy of the death certificate of Bimal Behari Sen issued by the Calcutta Municipal Corporation on 28.1.91 that Bimal Behari Sen at the age of 51 years only committed suicide at 76, Amherst Row. When there is reference of police order of Amherst Street P.S. in the death certificate it was presumed that after suicidal death of Bimal Behari Sen a police case was started and the irresistible conclusion which follows is that the deadbody was recovered by the police of Amherst Street Police Station and post-mortem was conducted in the morgue. In order to hush up the unnatural and mysterious death of Bimal Behari Sen at the residence of plaintiff, the plaintiff in the application under Act XXXIX case or in the original suit did not explain about the manner of death of Bimal Behari Sen at the residence of plaintiff. It was not stated in the plaint as to what led the Bimal Behari Sen to commit suicide at his father-in-law's house instead of committing the same at his own house at 26B, Ashutosh Mukherjee Road or at 29, Pipe Road. Although nine witnesses were examined in the suit, in spite of order of the High Court Ajit Kumar Bose was not examined as Court witness. The plaintiff who has filed the suit for grant of probate as the propounder has not examined himself in this case. Even his concubine Gita Sen, the lagatee who has been living with Aroon Kumar Bose has not examined herself in the suit. Unusual mystery and suspicion shrouded around the creation of the impugned deed of revocation of trust and impugned Will have not been removed by Aroon Kumar Bose and Gita Sen.
11. The substituted defendants further stated in the written statement that in order to remove the suspicious circumstances around the death of Bimal Behari Sen and his testamentary capacity, the death certificate of Bimal Behari Sen has not been produced in the suit and no police case record was called for from Amherst Street Police Station and post-mortem examination report was also not filed. Since the unnatural death of Bimal Behari Sen occurred at the residence of Aroon Kumar Bose onus lies upon him to prove that death of Bimal Behari Sen was normal and it was not a suicide or murder. The death of Bimal Behari Sen took place at 76, Amherst Row, Calcutta which is not within the jurisdiction of the District Judge of 24-Parganas (South) at Alipore. When Ajit Kumar Bose came to know about nepharious act of plaintiff Aroon Kumar Bose, he correctly refused to act as an executor of the impugned Will.
12. The said defendants in the additional written statement further alleged that after examination of the impugned Will they became sure that the said Will is not a genuine Will. There are two sheets of papers of the said Will and the second page is a blank sheet and no typed matter was found except title page. The impugned Will was typed on first page and on back of the first page. It is peculiar that for registration and identification there is no blank space on the back of the first page. The position of signature of testator on the first and back of the first page are not normal. The signature of testator on first page shows at left bottom corner and over the signature of testator there are signatures of Arunendra Prasad Ghosh, Anil Ghosh and Prem Nihar Bose. On the back of the first page of the Will the signature is on the middle position and not at the end of the body writing which are usually found in all other Wills. The typed position of the first and back of the first page strongly suggests that there was no other alternative than to complete the impugned Will within the said two pages.
13. The water mark of the two sheets of papers of the said Will are different. The typed page i.e., first page shows a cream mark and on the second page shows the name and year 1946 without any water mark, i.e. crown mark. The impugned Will as it appears was registered on 23.11.49 bearing book No. Ill, volume No. 7 pages 19-21 being No. 166 for the year 1949 in the office of the Registrar of Calcutta. It apptars that the impugned Will was not presented before the Registrar by the testator for registration and in the body of the plaint it was not stated as to what prevented the testator to present the Will before the Registrar.
14. In the instant case there is no iota of evidence or materials on record to show that Sections 42 and 43 of the Registration Act were duly complied with. The defendants are confirmed that the impugned two signatures of Bimal Behari Sen on the impugned Will were obtained on blank paper by Aroon Kumar Bose and his Solicitor and subsequently the said Will was manufactured. The entire facts and circumstances starting from removal of ailing wife of Bimal Behari Sen from their own residence to the residence of Aroon Kumar Bose at 76, Amherst Row and confinement of insane Bimal Behari Sen and his old mother in the 29, Pipe Road house and the creation of revocation of trust and Will through insane Bimal Behari Sen and ultimately killing of Bimal Behari Sen at the residence of Aroon Kumar Bose, if construed together, will suggest that at the material time suspicious circumstances behind the creation of the Will were there. Accordingly, the suit for grant of probate on the basis of the Will of Bimal Behari Sen should be dismissed.
15. Gita Rani Sen, the beneficiary, for whom the Will was executed by the testator being her father filed one written objection and supported the prayer of plaintiff for grant of probate. She stated that in the petition for probate it was not disclosed that there are other assets belonging to the estate of her father late Bimal Behari Sen. Her father left some immovable properties in the district of Hooghly and some cash money and also some amount in the Imperial Bank of India which were omitted in the application for probate though those were disposed of in terms of the Will. She denied all the material averments of the written statement filed by her brother Broja Behari Sen and contended that her father was in cordial relationship with her maternal uncle Ajit Kumar Bose and his son Aroon Kumar Bose and from time to time looked after the business of Ajit Kumar Bose. Her father executed a deed of trust in respect of his immovable properties wherein her father made himself first trustee and made her brother Broja Behari Sen the other trustee. The trust deed contained a provision wherein her father could revoke the trust in respect of one property being premises No. 29, Pipe Road, Khidderpore. She denied the allegation of the defendant that Ajit Kumar Bose and Aroon Kumar Bose exercised coercion and undue influence on her father to execute the trust deed and thereafter to execute the Will and revocation of trust. She denied that in or about 1948 or immediately thereafter her father showed signs of insanity and abnormal behavkmr. Her brother Broja Behari Sen was a man of violent temper and obstinate nature and allowed himself to be in the clutches of his wife Smt. Sibani Sen and Ins father-in-law Guru Prasad Ghosh, Advocate. Her brother often misbehaved with her parents and grandmother and used filthy and abusive languages towards them and insulted them. It was Guru Prasad Ghosh, Advocate, the father-in-law of her brother who was the brain behind the creation of trust deed and said Guru Prasad Ghosh induced her father to create such a deed of trust. Gradual behaviour of her brother towards her parents and grandmother became unbearable and on one particular occasion he was almost on the verge of assaulting her father. Due to the aforesaid attitude and conduct of her brother and having regard to the state of health of her mother, her father removed mother to her maternal uncle's place at 76, Amherst Row and her father started residing separately at 29, Pipe Road, Khidderpore with her grandmother. The deed of revocation of the trust in respect of premises No. 29, Pipe Road, Khidderpore and the Will dated 1st March, 1949 were duly executed by her late father. She also denied all the allegations that Ajit Kumar Bose and Aroon Kumar Bose robbed receipts and documents from their house and that Aroon Kumar Bose cunningly took away her father at 76, Amherst Row on 10th May, 1949. Her father did not demand back the Will from Ajit Kumar Bose or Aroon Kumar Bose for the purpose of destroying the Will. Her brother did not make any attempt to send her father to Ranchi Mental Hospital or that Ajit Kumar Bose or Aroon Kumar Bose prevented the same. She has denied that her father had no testamentary capacity at the time of execution of the Will or that the Will was not validly executed and attested. Her father himself voluntarily deposited the Will with the Registrar of Assurance. The Will is not unnatural one and there was no suspicious circumstances behind the creation of the Will.
16. When the application for grant of probate was made in 1949 which was converted into a suit in the year 1950 it was pending in the Court of the learned 6th Subordinate Judge being the District Delegate of 24-Parganas where witnesses P.W. 1 to P.W. 9 were examined. Subsequently, it was transferred to the Court of the learned Additional District Judge, 3rd Court at Alipore and thereafter the said suit was transferred to the Court of the learned Additional District Judge-cum-Fast Track Court No. 1 at Alipore. The learned Trial Judge by his judgment and decree dated 29th June, 2005 decreed the suit and granted probate in respect of the Will dated 1.3.49 executed by Bimal Behari Sen in favour of Gita Rani Sen and hence this appeal.
17. Mr. Bidyut Kumar Banerjee, the learned Senior Counsel appearing for the appellants submitted that, if the Registrar of Assurance sealed the Will on 3rd March, 1949, thereafter how can the Registrar can register the Will on 23rd November, 1949. The alleged Will is dated 1st March, 1949 and at that time the trust deed executed by Bimal Behari Sen himself on 13.8.47 was in existence. When there was trust deed there was no need at all for creation of Will. The trust deed was executed considering the benefit of all i.e. the son and daughters of deceased Bimal Behari Sen and the contents of the trust deed can be found at page 173 of the thick paper book. The Will can be found at page 190 of the paper book and by virtue of that Will the testator gave his own property of 29, Pipe Road, Khiddorpore to her minor daughter Gita Rani Sen and by that Will the testator did not bequeath any other property or other properties.
18. Mr. Banerjee also contended that at the relevant time the testator was mentally deranged and he was insane and he had no testamentary capacity to execute the Will. The Will was not executed and attested in accordance with law. Exhibits B, C and C1 proves that from 1948 the testator Bimal Behari Sen was mentally disbalanced, mentally deranged and was insane person and he was admitted at Ranchi European Mental Hospital. Ext. B is a letter dated 18th August, 1948 by one Mr. R.B. Davis, the Medical Superintendent of the Ranchi European Mental Hospital addressed to Mr. H.N. Mukherjee intimating in the said letter about prospectus of the hospital and also information that accommodation is available in categories I to V. Ext. C is a miscellaneous receipt dated 27.9.48 issued by Medical Superintendent of the said hospital which shows that the said hospital received Rs. 325/- from Mr. Bimal Behari Sen on account of M/C Mr. B.B. Sen for October, 1948. Ext. C1 is another receipt dated 28.9.48 issued by the Medical Superintendent of the Ranchi European Mental Hospital in respect of Rs. 24/- received from Bimal Behari Sen on account of private money Mr. B.B. Sen. Mr. Banerjee contended that these three documents prove that Bimal Behari Sen, the testator was admitted at Ranchi European Mental Hospital for treatment in 1948. There is no material before the Court to show that after such treatment his mental capacity was improved and he became a normal man having full sense and knowledge. When the Will was executed on 1.3.49 he was insane and he had no tstamentary capacity to execute the Will.
19. Mr. Banerjee further submitted that the propounder namely, Aroon Kumar Bose who filed the application for grant of probate did not examine himself as a witness and this also establishes that the Will was not the free and valid Will executed by the testator. Non-examination of the propounder in this case is very vital and the propounder failed to dispel and remove the suspicious circumstances behind the creation of the Will. In support of his contention Mr. Banerjee cited the decisions in H. Venkatachala Iyengar v. B.N. Thimmajamma and Ors. , Indu Bala Bose and
Ors. v. Manindra Chandra Bose and Anr.
and Promila Sundari Devi and Ors. v. Bijoy Ghosal and Ors. reported in 2000 (2) CHN 754.
20. Per contra, Mr. Jaharlal Dey, the learned Advocate for the respondent submitted that in the original written statement submitted by Broja Behari Sen, the son of Bimal Behari Sen there was no denial relating to execution of the Will. It was only alleged by Broja Behari Sen that the Will was obtained by Aroon Kumar Bose and his father Ajit Kumar Bose exercising undue influence and coercion on Bimal Behari Sen. It was another averment in the written statement that Bimal Behari Sen wanted to receive back the Will for the purpose of destroying the same but Aroon Kumar Bose and his father did not hand over the Will to him. Over this fact the defendant appellants did not lead any evidence to establish that Bimal Behari Sen ever demanded return of the Will for the purpose of destroying the same. Mr. Dey contended that on the other hand, from evidence it transpires that Bimal Behari Sen, the testator had high academic qualification and he was B.L. Page 167 of the thick paper book contains own handwritten letter of Bimal Behari Sen dated 6.9.48. The said letter shows that the testator wrote the said letter to the Postmaster, Ranchi Post Office stating therein to redirect all letters addressed to him at his present accommodation in room No. 3, Lake View Hotel, Ranchi to his Calcutta address of 26B, Ashutosh Mukherjee Road. The said handwritten letter was marked as Ext. A and it shows that handwriting of Bimal Behari Sen was decent and the letter conveys full mental capacity of testator and it shows that he was a man of all possible normal senses.
21. Mr. Dey further submitted that mental incapacity or failure of testamentary capacity of testator Bimal Behari Sen has not been proved at all. The alleged papers of Ranchi European Mental Hospital do not at all prove admission of Bimal Sen in the said hospital for treatment. Ext. B proves nothing as the said letter of the Medical Superintendent addressed to Mr. H.N. Mukherjee of 43, Harish Mukherjee Road reveals that accommodation is available in the said hospital. This letter does not prove that the accommodation was wanted in the said hospital for admission of Bimal Behari Sen. Exts. C and C1 only shows that on 27.9.48 and 28.9.48 Bimal Behari Sen paid Rs. 325/- and Rs. 24/- respectively on account of M/C for Mr. B.B. Sen. Exts. C and C1 do not prove admission of Bimal Behari Sen in the Ranchi Mental Hospital for mental treatment. Mr. Dey contended that M/C for Mr. B.B. Sen may also be indicative of illness of Broja Behari Sen, the son of Bimal Behari Sen. Gita Rani Sen as P.W. 10 in her evidence stated about violent attitude of her brother Broja Behari Sen and his torture on his father and grandmother.
22. Mr. Dey also submitted that evidence of P.W. 7, P.W. 8 and P.W. 9 clearly proves execution and attestation of the Will and the evidence of these witnesses also prove that the testator Bimal Behari Sen had full testamentary capacity to execute the Will and he was not insane. The original defendant Broja Behari Sen did not cross-examine P.W. 7 to P.W. 9 and dragged the matter for several years and prayed for adjournments before the Court from November, 1958 till his death in 1991 either on the ground of preferring appeal in Supreme Court or moving the High Court on various pleas. P.W. 7, P.W. 8 and P.W. 9 were examined on 18.11.58 and the evidence of P.W. 7 and P.W. 8 reveals that nobody appeared to cross-examine them and examination-in-chief of P.W. 9 was incomplete. Even the evidence of Court witness Ajit Kumar Bose could not be completed only for the conduct of the defendants as in spite of giving them opportunity they did not cross-examine the said witnesses and dragged the matter for almost 50 years and by this time the said witnesses expired and are not available now for cross-examination.
23. Mr. Dey further contended that when it was established that Bimal Behari Sen was not insane and had full testamentary capacity and, the evidence of P.W. 7 to P.W. 9 proved the execution and attestation of the Will, the propounder was able to dispel and remove all the alleged suspicious circumstances behind the creation of the Will. Mr. Dey also contended that the note of the Registrar of Assurance, Calcutta further makes it clear that Bimal Behari Sen himself came to the office of Registrar of Assurance on 3rd March, 1949 at 11.55 a.m. and presented the said Will for keeping in the safe custody and he was at that time identified to the satisfaction of the Registrar of Calcutta by Prem Nihar Bose. The Registrar of Assurance kept the said Will under cover with his office seal at seven places. The evidence and the circumstances clearly prove that the beneficiary of the Will was Gita Rani Sen who was a minor at that time and she was the youngest daughter of testator Bimal Behari Sen and was suffering from T.B. at that time. Bimal Behari Sen, a loving father, being anxious about future of his youngest minor daughter executed the Will voluntarily with his own free mind, desire and the Will was for the benefit of Gita Rari Sen. In support of his contention Mr. Dey cited the decisions in Probodh Kumar Chakraborty v. Arijit Chakraborty reported in 2003 (4) CHN 10, Daulat Ram and Ors. v. Sodha and Ors. , Pentakota
Satyanarayana and Ors. v. Pentakota Seetharatnam and Ors. , Electronics Corporation of India Ltd. and Ors. v. Secretary, Revenue Department, Govt. of Andhra Pradesh and Ors. and Madhukar D. Shende v. Tarabai Aba
24. After hearing the submissions of the learned Advocates for the parties and perusing the evidence and materials on record and the impugned Will in question we are unable to accept the submissions of Mr. Banerjee, the learned senior Counsel for the appellants. The Will dated 1.3.49 made by deceased Bimal Behari Sen was not at all a registered Will. It appears from the endorsement dated 3.3.49 of the Registrar of Assurance on the cover or the envolope of the Will that on the said date at about 11.55 a.m. Bimal Behari Sen, son of late Bipin Behari Sen of 26B, Ashutosh Mukherjee Road, Bhawanipore, Calaitta presented the said Will for deposit. The said Bimal Behari Sen was identified to the satisfaction of the Registrar by Prem Nihar Bose, son of Santosh Kumar Bose of 11/A, Guru Prasad Chowdhury Lane, Calcutta. The cover was sealed at seven places by the Registrar. It proves that on 3.3.49 at 11.55 a.m. the testator himself came to the office of the Registrar of Assurance, Calcutta for keeping the Will or depositing the Will in safe custody of the office of the Registrar. Further endorsement of the Registrar dated 23.11.49 runs as follows:
Having satisfied myself that the testator hereof is dead, the sealed cover containing this Will is opened this the 23rd day of November, 1949 on the application and in the presence of Aroon Kumar Bose, son of Ajit Kumar Bose of 76, Amherst Row, Calcutta, Hindu Merchants.
25. Thereafter, there is endorsement regarding payment of fee and signature of Aroon Kumar Bose and signature of the Registrar of Calcutta dated 23.11.49. The order sheet of the Trial Court and the judgment of the Trial Court reveals that the Registrar of Calcutta thereafter on the basis of requisition received from Court forwarded the said Will to the District Delegate of Alipore. The Will reveals that it was copied in book No. 3 volume No. 7 being No. 166 for the year 1949 and it bears signature of the Registrar dated 29.11.49. Therefore, it was copied and was not registered and here the provisions of Sections 42, 43 and 45 of the Indian Registration Act were followed:
Section 42 of the Registration Act runs as follows:
Deposit of Wills. - Any testator may, either personally or by duly authorised agent, deposit with any Registrar his Will in a sealed cover superscribed With the name of the testator and that of his agent (if any) and with a statement of the nature of the document.
Section 43 of the Registration Act runs as follows:
Procedure on deposit of Wills. - (1) On receiving such cover, the Registrar, if satisfied that the person presenting the same for deposit is the testator or his agent, shall transcribe in his Register Book No. 5 the superscription aforesaid, and shall note in the same book and on the said cover the year, month, day and hour of such presentation and receipt, and the names of any persons who may testify to the identity of the testator or his agent, and any legible inscription which may be on the seal of the cover.
(2) Registrar shall then place and retain the sealed cover in his fireproof box.
The language of Section 45 is hereby reproduced as follows:
Proceedings on death of depositor. - (1) if, on the death of a testator who has deposited a sealed cover under Section 42, application be made to the Registrar who holds it in deposit to open the same, and if the Registrar is satisfied that the testator is dead, he shall, in the applicant's presence, open the cover, and, at the applicant's expense, cause the contents thereof to be copied into his book No. 3.
(2) When such copy has been made, the Registrar shall redeposit the original Will.
26. Here in this case Section 44 of the Registration Act is not applicable as the testator before his death did not file any application for withdrawal of the sealed cover deposited under Section
42. The object of Sections 42 to 46 is that the contents of the sealed cover which the testator deposits, that is in other words, the provisions of the Will, shall remain secret during his lifetime, but when he dies the terms of his Will shall be made public and copies thereof shall be available to the public. In the present case the note of Registrar on the cover clearly shows that the testator himself came at his office on 3rd March, 1949 at 11.55 a.m. and deposited the Will under cover and the testator was identified to the satisfaction of the Registrar by Prem Nihar Bose. The Registrar then affixed seal at seven places over the cover and as such provision of Sections 42 and 43 of the Registration Act were fully complied with. The next note or endorsement of the Registrar dated 23.11.49 reveals that having satisfied himself that the testator is dead, he opened the sealed cover on 23rd day of November, 1949 on the application of Aroon Kumar Bose and in presence of Aroon Kumar Bose, one of the executors of the Will and caused contents of the Will copied in book No. 3. Accordingly, the Registrar fully complied with the provisions of Section 45 of the Registration Act. The Will in our opinion is not compulsorily registrable and registration of Will is optional in view of Section 18(e) of the Registration Act. It is, therefore, clear that Will in question was not a registered Will and the testator himself deposired the Will before Registrar and provisions of Sections 42, 43 and 45 of the Registration Act were fully complied with. There is no ground at all to doubt the genuineness of presentation of the Will by the testator himself and the contention of the appellants in this respect are not acceptable.
27. The contention of the learned Advocate for the appellant that if the Registrar sealed the Will on 3.3.49 and the testator died on 13th May, 1949, how on 23.11.49 the Will was registered, have no foundation as from materials on record and on perusing the Will and the cover we clearly find that the Will was not registered at all.
28. We have carefully perused the documents marked as Exts. B, C and C1 and after going through the evidence of D.W. 1 Subhasis Sen, and the witnesses for plaintiff and considering the other materials on record, we are of opinion that Exts. B, C and C1 do not at all prove that the testator Bimal Behari Sen was admitted at Ranchi Mental Hospital for treatment due to insanity or mental derangement. Ext. B is a letter of Mr. R.B. Davis, the Medical Superintendent of the Ranchi European Mental Hospital addressed to one Mr. H.N. Mukherjee of 43, Harish Mukherjee Road containing in the said letter the fact that accommodation is available in categories I to V. Ext. C is a receipt showing payment of Rs. 325/ - by Bimal Behari Sen to the said hospital on account of M/C Mr. B.B. Sen for 'Oct.' 48. Ext. C1 is another receipt showing payment of Rs. 24/- by Bimal Behari Sen to the same hospital on account of private money - Mr. B.B. Sen. The combined effect of these three documents marked as Exts. B, C and C1 do not give any slightest idea of admission of Bimal Behari Sen, the testator into Ranchi European Mental Hospital for treatment due to his insanity or, mental problem or, mental disease.
29. On the other hand, if we carefully go through Ext. A the handwritten lettter dated 6.9.48 written by Bimal Behari Sen on his pad shows that he had B.L. Degree. The handwriting is undoubtedly very good and the letter does not at all reflect any mental incapacity or mental disorder of Bimal Behari Sen. This letter reveals that Bimal Behari Sen requested by that letter to the Postmaster, Ranchi Post Office to redirect all letters etc. addressed to his present accommodation at room No. 3, Lake View Hotel, Ranchi to his Calcutta address of 26B, Ashutosh Mukherjee Road as he is leaving Ranchi station. The letter marked as Ext. A written by the testator himself shows that he was staying in a room of Lake View Hotel, Ranchi and was not admitted as a patient in Ranchi European Mental Hospital. The deposit of money through Exts. C and C1 by Bimal Behari Sen in the said hospital on account of private money for one Mr. B.B. Sen gives clear indication that the said amounts were not deposited for patient Bimal Behari Sen, the testator and the said amounts were deposited for one Mr. B.B. Sen. This also establishes the fact that the said amounts were deposited for a different person and not for the testator Bimal Behari Sen. This letter proves total soundness of mental condition of testator Bimal Behari Sen.
30. We are not at all impressed with the submission of Mr. Banerjee, the learned Senior Counsel for the appellant that the trust deed was made considering benefit of all the heirs and legal representatives of Bimal Behari Sen and, when there was trust deed there was no need of execution of any Will. The law is well-settled in this respect that the Will is the intention, desire and wish of the testator and a person creates a Will expecting that after his death his intention and the desires as reflected in the Will would be honoured by the executors and the beneficiaries. In accordance with law a testator who executes a Will has freedom and every right to give his property to whomsoever he likes. If the testator by the Will deprives his brothers, other sons, daughters, nephews etc in respect of his property by the Will that cannot be a ground to suspect the genuineness of the Will.
31. The present appellants in their written statement in paragraph 6.5 clearly mentioned that they also arranged marriage of Gita Rani Sen. But all her youth she suffered from T.B. repeatedly when it was almost incurable. From evidence and materials on record it is admitted that Gita Rani Sen was suffering from T.B. Ext. 9/6 which is a letter (Post Card) dated 27.1.1949 written by the testator himself with his own handwriting reflects concern and anxiety of the testator Bimal Behari Sen for his sick and ailing unmarried daughter Gita Rani Sen and his concern for his ailing paralytic mother. During 1947-48 T.B. was practically incurable and in those days death was inevitable for a patient who was suffering from T.B. The other letters produced by Gita Rani Sen written by her second sister from Ghoramara within district Rajsahi, now in Bangladesh, where she was married with Sailaja Ghosh also reveals the illness of Gita Rani Sen. In a letter marked Ext. 9/5 written by 'mejdi' of Gita Rani from Ghoramara reveals her concern for the beneficiary Gita Rani Sen and in the said letter addressed to Gita Rani Sen she requested Gita to take care of her health and to take steps for her treatment. In another letter addressed to Arundhuti (from evidence it transpires that Arundhuti was wife of Aroon Kumar Bose) the same 'mejdi' expressed her concern for Gita and also indicated in the said letter which is lying at page 203 of the thick paper book that whether Gita would survive or not and she expressed in the letter her prayer to the God so that Gita becomes cured.
32. In this background we cannot ignore the circumstances for the creation or the execution of the Will in favour of Gita Ram Sen as Bimal Behari Sen, the father and testator was conscious about illness of her youngest daughter and also about her future and considering everything he executed that Will for the benefit of Gita Rani Sen. The law is settled that when the Will was duly executed by the testator and the testator gave premises of 29, Pipe Road, Khidderpore, Calcutta and his Government promissory notes and securities moneys realised from Life Insurance Policy to his daughter in exclusion of his son Broja Behari Sen and other married sisters this cannot be regarded as sufficient to generate suspicion. In this connection we place our reliance on the decisions , Chinmoyee Saha
v. Debendra Lal Saha and Ors. and , PPK Gopalan
Nambiar v. PPK Balakrishnan Nambiar and Ors.
33. The Supreme Court in a recent decision in Pentakota Satyanarayana and Ors. v. Pentakota Seetharatnam and Ors. held that:
The circumstances of depriving the natural heirs should not raise any suspicion because the whole idea behind the execution of the Will is to be interfered in the normal line of succession and so natural heirs would be debarred in every case of the Will. It may be that in some cases they are fully debarred and in some cases partly. This is the view taken by this Court in Uma Devi Nambiar and Ors. v. T.C. Sidhan (dead) .
34. We find that in the paper book the deposition of Court witness Ajit Kumar Bose has not been annexed and only copy of order No. 112 dated 8.6.60 at page 66 has been annexed which reveals examination of Ajit Kumar Bose as Court witness and part cross-examination by plaintiff. After going through the Lower Court Record we have found xerox copy of deposition of Ajit Kumar Bose, the Court witness. When the District Judge, Alipore vide memo No. 2173-E/SDR dated 10.07.01/16.07.01 directed the Trial Court to reconstruct records the said xerox copy of deposition of Ajit Kumar Bose, the Court witness, should have been formed part of the record as from the order sheet it is clear that Ajit Kumar Bose was examined as a Court witness and the said deposition should have been considered by the Trial Court and should have been annexed in the paper book. Ajit Kumar Bose in his evidence did not speak about execution and attestation of the Will but he only expressed his intention not to act as executor and submitted that he filed an application renouncing executorship. The part cross-examination of plaintiff made to Court witness Ajit Kumar Bose reveals that the testator Bimal Behari Sen was not mad.
35. Let us now enter into the evidence and we find that in all 11 witensses were examined for the plaintiff, and for the defendants 1 witness was examined. The 11 witnesses examined for the plaintiff are P.W. 1 Brojo Gopal Chakraborty, P.W. 2 Himangshu Majurnder, P.W. 3 Priyanath Das, P.W. 4 Gopal Chandra Sen, P.W. 5 Asit Ranjan Sengupta, P.W. 6 Anil Chakraborty, P.W. 7 Dr. Arun Prasad Ghosh, P.W. 8 Nakuleswar Pal, P.W.
9 Anil Ghosh, P.W. 10 Gita Rani Sen and P.W. 11 Sirajul Mondal. On behalf of the defendants only one witness was examined who is D.W. 1 Subhasis Sen.
36. Both parties also produced documentary evidence but it is evident that Exts. 1, 2, 3, 4, 5, 6 series and 8 series are not available and those are missing. In spite of direction for search and tracing out the records those documents could not be traced out and even in spite of direction of the District Judge for reconstruction of the records those documents could not be reconstructed. Ext. 7 is the Will in question and Ext. 9 series are some letters produced by Gita Rani Sen. It appears that before the Trial Court the learned Advocate for the plaintiff respondent submitted that due to missing of the abovestated documents the case of the plaintiff Will not suffer. Exhibit list lying in Lower Court Record reveals nature of the documents which were marked as Exhibits 1 to 5, 6 series and 8 series which were lost and could not be constructed. Ext. 7 is the Will in question executed by deceased Bimal Behari Sen dated 1.3.49. Exts. 7(a) to 7(d) are signatures of Arunendu Prasad Ghosh, Bimal Behari Sen, Anil Ghosh and Prem Nihar Bose respectively on the Will marked as Ext. 7. Ext. 9 is a writing of Bimal Behari Sen dated 5.5.49, Ext. 9/1 is writing of Bimal Behari Sen dated 6.5.49, Ext. 9/2 is writing of Surobala Sen to one Harenbabu, Ext. 9/3 is writing of 'maa" to Santosh Babu, Ext. 9/4 is original postal envelope with letter sent by Mira Rani Ghosh dated 22.6.49 written to Gita Sen and on the reverse to Arundhuti (wife of Aroon Bose). Ext. 9/5 is another letter dated 12.1.58 with postal envelope sent by Mira Rani Ghosh written to Gita Sen. Ext. 9/6 is a postcard written by Bimal Behari Sen himself dated 27.1.49. Ext. 10 is discharge certificate from Capital Nursing Home in respect of Aroon Kumar Bose, Ext. 11 is discharge report of the said patient and Ext. 12 is admission form of the said nursing home. Ext. 13 is a deed of declaration, Ext. 14 is certified copy of order of learned Munsif, 4th Court, Alipore in T.S. No. 866/60 dated 22.12.67. Ext. 15 is certified copy of petition of defendant filed in T.S. No. 866/60 in the Court of the Munsif, 4th Court, Alipore; Ext. 16 is the certified copy of the Will dated 1.3.49.
37. For the defendants documents marked as Exts. A to F were admitted in evidence and we have already discussed about documents marked as Exts. A to Clause Ext. D is certified copy of death certificate of Bimal Behari Sen. Ext. E is a letter written by Ajit Kumar Bose dated 5.9.48 to one Gurupada Ghosh and Ext. F is the original trust deed dated 13.8.47 executed by Bimal Behari Sen.
38. We now propose to discuss the nature of evidence adduced by the witnesses in the Trial Court and to consider what is the evidentiary value of such evidence. After going through the evidence of P.W. 1 to P.W. 6 we find that their evidence have no significance at all in this probate proceeding and none of them stated anything about execution and attestation of the Will or about mental and physical condition of the testator Bimal Behari Sen. Only evidence of P.W. 3 reveals that Bimal Behari Sen received Rs. 56/- from one Nirmal Babu who was the receiver and granted a receipt which was marked as Ext. 2. His evidence reveals that the said payment was made for the pharmacy and Bimal Babu hirnself received the money.
39. P.W. 7 Dr. Arun Prasad Ghosh is an attesting witness of the Will and he stated that Bimal Babu executed the Will and he was a witness to the Will. He reached office of solicitor Anil Ghosh at Church Lane. He found testator Bimal Babu in quite normal health, both physically and mentally and he found no trace of insanity in testator. After execution of Will also he saw no insanity or abnormality in him (Bimal Babu). His evidence further reveals that Bimal Babu read the Will after taking it from solicitor and signed in it and then asked him to sign by full name. Other witnesses signed after him and they are solicitor and his assistant. His evidence reveals that he and other witnesses signed in the Will in presence of Biinal Behari Sen. P.W. 8 Nakuleswar Pal did not state anything about execution or attestation of the Will.
40. P.W. 9 Anil Ghosh, the solicitor in his evidence stated that he prepared a Will which was executed by Bimal Behari Sen and he is an attesting witness also. He stated that Bimal Babu signed in the Will in his presence and presence of other witnesses. He attested the Will in presence of Bimal Babu and other witnesses. His evidence reveals that Bimal Babu was absolutely normal both physically and mentally. After death of Bimal Babu he wrote a letter to Ajit Babu stating that he can apply for probate but Ajit Babu declined to act as executor. Then he wrote a letter to Arun Babu for taking steps. His evidence further reveals that he prepared the Will on the instruction of the testator. After execution also he saw Bimal Babu a normal man. It is evident that defendants did not cross-examine P.W. 7 and P.W.8 and examination-in-chief of P.W. 9 was incomplete. We shall enter into discussion about evidentiary value of P.W. 7 to P.W. 9 later on when we will consider whether their evidence can be relied upon in view of provisions of Section 33 of the Evidence Act as they are now dead.
42. Now let us turn to the evidence of P.W. 10 Gita Rani Sen, the sole beneficiary of the Will. In her examination-in-chief she stated that she is supporting the evidence on affidavit under Order 18 Rule 4 of the CPC and she identified the said affidavit in her evidence stating that she signed in the affidavit after reading out contents of it. She also produced some letters written by her father and others which according to her are documents of more than 30 years old which were in her custody and the said letters were marked Ext. 9 series.
42. The cross-examination of P.W. 10 reveals that her mother died on 15.3.49 and her father died on 13.5.49. She stated that her father committed suicide at 76, Amherst Row and Ext. D, the death certificate, corroborates her evidence. The appellants who were substituted as defendants filed additional written statement and introduced a story that Bimal Behari Sen was killed or murdered. The original defendant Broja Behari Sen, their predecessor-in-interest and son of Bimal Behari Sen in the original written statement did not state anything like that and only stated that, he was informed of the news of suicide of his father Bimal Behari Sen. Cross-examination of P.W.10 reveals that Broja Behari Sen told the police not to hold post-mortem examination on the body of Bimal Behari Sen. The suggestion given to P.W.10 at page 72 of the paper book that Bimal Behari sen was murdered has, therefore, no foundation at all and introduction of this new story by the present appellants cannot be believed at all and it was introduced only to defeat the application for probate.
43. The evidence of P.W. 10 further reveals that Aroon Kumar Bose was married in 1948. It establishes that the allegation of the present appellants that P.W. 10 had illicit relation with Aroon Kumar Bose is a false statement and has no foundation at all as evidence of P.W. 10 clearly reveals that Aroon Kumar Bose was staying with his wife and children. Her evidence also discloses that her father had degree in law but he did not practice as an Advocate. Her evidence also reveals that in 1946-47 she was very sick as she was suffering from T.B. The present appellants in their written statement has also stated that P.W. 10 was suffering from T.B. which was incurable during those days of 1946-47. Strange enough, during cross-examination of P.W. 10 which is lying at page 76 of the paper book, the defendant appellants gave the suggestion to her that she was not suffering from T.B. This is nothing but contradictory statement of the defendant appellants and it makes the defence story unbelievable.
44. It was also suggested to P.W. 10 that in December, 1948 her grandmother and her brother Broja Behari Sen released Bimal Behari Sen from Ranchi Mental Hospital and brought him back to home. P.W. 10 totally denied that suggestion and this suggestion do not prove that testator Bimal Behari Sen was insane or mentally deranged or was suffering from any mental incapacity or illness. We have already discussed about Ext. A, the own handwritten letter of Bimal Behari Sen dated 6.9.48. Another postcard written by Bimal Behari Sen himself which has been marked as Ext. 9/6 is dated 27.1.49 and it was addressed to one Mani Mohan Chatterjee of Deoghar. Evidence of P.W. 10 reveals that Mani Mohan Chatterjee used to visit their house and he was known as 'narakaka' and was 'narada' of her father. The said postcard written by Bimal Behari Sen himself on 27.1.49 reveals the anxiety of Bimal Behari Sen for his old mother who was a paralytic patient and his anxiety for his ailing minor daughter. The other letters of Bimal Behari Sen dated 5.5.49 and 6.5.49 also disclose that Bimal Behari Sen had full sense and he was not at all physically unfit or mentally deranged or was an insane person.
45. The evidence of D.W. 1 Subhasis Sen reveals that since 1990 they are residing at Ashutosh Mukherjee Road and before that they were residing at 2, Madan Mohan Dutta Lane, the house of their maternal grandfather Guru Prasad Ghosh, a learned Advocate of High Court. Their voters' identity card, ration card etc. all are standing in the address of 2, Madan Mohan Dutta Lane. He stated that Bimal Behari Sen used to maintain family of his father. He admitted that he has no personal knowledge that Surobala Sen gave exts. B to D to his father. If this is the evidence then the custody required for proving a 30 years old document has not been established from the evidence of D.W. 1. In cross-examination D.W. 1 admitted that Exts. B, C and C1 do not prove that Bimal Behari Sen was admitted at Ranchi European Mental Hospital. He also stated that he has no other paper or document to prove that Bimal Behari Sen was admitted at Ranchi Mental Hospital. If he says that Bimal Behari Sen used to maintain family of his father Broja Behari Sen, the natural conclusion that can be arrived at or, inference can be drawn, is that, Bimal Behari Sen was not at all insane or was mentally deranged.
46. In his evidence in cross-examination at page 103 of the paper book he admitted that the premises No. 26B, Ashutosh Mukherjee Road was within the trust property and they have sold it giving declaration that the trust came to an end. He admitted that Gita Rani Sen has right of stay and maintenance at 26B, Ashutosh Mukherjee Road. His evidence reveals that they did not obtain permission of the District Judge before selling the premises No. 26B, Ashutosh Mukherjee Road. He also admitted that the house situated at 29, Pipe Road has been mutated in the name of Arun Bose and challenging that order of Calcutta Corporation they have moved High Court. In cross-examination he also admitted that he was aware that Aroon Bose was appointed administrator pendente lite. Challenging the order of Trial Court appointing Aroon Bose as administrator pendente lite his father moved High Court and Supreme Court and lost both in the High Court and in the Supreme Court. His cross-examination further reveals that in 2001 they filed a case before the District Judge for permission to sale the house of 29, Pipe Road and took advance of Rs. 10 lakh for the said purpose. Suggestion was given to him from plaintiffs side that they have accepted Rs. 30 lakh for sale of the house of 29, Pipe Road but, he denied acceptance of Rs. 30 lakh, but admitted taking of Rs. 10 lakh as advance. He had to admit in cross-examination that Gita Sen filed objection and the District Judge stayed everything.
47. D.W. 1 stated that he did not know that Gita Sen has filed a suit in the Court of Civil Judge (Senior Division), 4th Court, Alipore and obtained an order of injunction. He admitted in cross-examination that in the original written statement filed by his father there was no statement at all that Gita Sen was a kept or concubine of Aroon Kumar Bose or that she had illicit relation with Aroon Bose. But they introduced such a story in their written statement and in examination-in-chief stated that Gita Sen had illicit relation with Aroon Bose. His evidence reveals that he was not born when the Will was executed and when Aroon Bose was married and his date of birth is 7.1.55. D.W.I is, therefore, wholly incompetent to say that his 'pisima' (father's sister) Gita Sen had illicit relation with her cousin brother Aroon Kumar Bose. We are constrained to observe that it shows how far a man can go for property and become so low minded as to describe own father's sister as a concubine which in fact is not true at all. His evidence in cross-examination shows that he is aware that Aroon Kumar Bose was married.
48. The appellants as defendant Nos. 1(a) to 1(c) in the written statement made averment that in the probate suit Gita Sen being minor was permitted to be represented by her eldest sister Biva Rani Mitter and her husband as guardians and when they came to know about illicit relation of Gita Sen with Aroon Kumar Bose they refused to act as guardian of Gita Sen. This statement in written statement is also not true as in the Lower Court we have found the application of Biva Rani Mitter and her husband and there is no whisper at all about such illicit affair of Gita Sen. Trial Court by order dated 20.9.50 discharged them from guardianship and by order dated 25.9.50 appointed one Advocate as guardian-ad-litem for minor Gita Sen. Subsequently by order dated 4.1.51 after perusal of horoscope of Gita Sen the Court declared her major as she was born on 17.11.32 and permitted her personally to take part in the suit.
49. Evidence of D.W. 1 further reveals that Government requisitioned the premises No. 29, Pipe Road and after derequisition delivery of posession of the said house has been given to Aroon Kumar Bose. His evidence further reveals that he has no personal knowledge at all regarding insanity of Bimal Behari Sen in 1948. He admitted that his father Broja Behari Sen did not file any criminal case concerning death of Bimal Behari Sen. If this is the nature of evidence then it is crystal clear that the defendant appellants have intentionally introduced false story in their subsequent written statement that Bimal Behari Sen was murdered by Aroon Kumar Bose and Ajit Kumar Bose. D.W. 1 also admitted in cross-examination that he has inspected certified copy of the Will and found that in the envelope which contained the Will there was endorsement and signature of the Registrar.
50. If we consider the evidence adduced by both parties properly it will be clear that the defence story is wholly unbelievable and D.W. 1 is not a trustworthy witness. Section 63 of the Indian Succession Act lays down the formalities required by law to be observed in the execution and attestation of a Will. Section 63 of the Succession Act prescribes that the testator shall sign or shall affix his mark to the Will or it shall be signed by some other person in his presence and by his direction. The Will shall be attested by two or more witnesses each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will in the presence and by the direction of the testator; and each of the witnesses shall sign the Will in the presence of the testator but, it is not necessary that more than one witness be present at the same time and no particular form of attestation is necessary. Therefore, according to Section 63 of the Succession Act the Will must be attested by at least two witnesses. Section 68 of the Evidence Act prescribes how a Will can be proved and according to Section 68 of the Evidence Act a Will can be proved by one of the attesting witnesses. The plaintiff or propounder, therefore, in a suit for grant of probate can prove the Will by examining any one of the attesting witnesses. In the present case P.W. 7 and P.W. 9 are the two attesting witnesses of the Will and they have proved the execution and attestation of the Will as required under Section 63 of the Succession Act and have also proved the Will as required under Section 68 of the Evidence Act.
51. Now crops up the most important question raised by the appellant that the said witnesses being dead and the defendants being denied opportunity to cross-examine P.W. 7 and P.W. 9 the Trial Court could not have relied on the evidence of the said two witnesses and granted probate on the basis of evidence of P.W. 7 to P.W. 9 placing reliance on Section 33 of Evidence Act.
52. We fully agree with the views of Mr. Banerjee, the learned Advocate for the appellants that merely a witness has died and could not be produced for cross-examination would not be a ground for the Court to place reliance on evidence of such witness to base final conclusion in the suit. We find force on the submission of Mr. Banerjee that unless opportunity to cross-examine such witnesses was given to the adverse party i.e. the defendants such evidence is not admissible in evidence. Mr. Banerjee also submitted that in spite of direction of a Division Bench of this Court passed in Civil Rule No. 3785 of 1958 no opportunity was given to the defendants to cross-examine P.W. 7 to P.W.
53. Let us now discuss how far the arguments advanced by Mr. Banerjee are acceptable and. whether the learned Trial Court in view of the direction of the Division Bench gave opportunity to the defence to cross-examine P.W. 7 to P.W. 9. We are also to arrive at a finding as to what would be the evidentiary value of P.W. 7 to P.W. 9, if it is found that in terms of the direction of the Division Bench opportunity was given to the defendants to cross-examine P.W. 7 to P.W. 9 and, in spite of having sufficient opportunity, the defence delayed the matter by taking several adjournments for over 42 years and did not cross-examine the said three witnesses and by this time the said witnesses are no more in this world and had already expired.
54. In the original written statement it was mentioned that Bimal Behari Sen demanded back the alleged Will from Ajit Kumar Bose and Aroon Kumar Bose for the purpose of destroying the same but they refused to return the said Will. D.W. 1 in his evidence did not state anything to prove this averment of written statement to establish that the testator demanded back the Will for destroying the same. This averment of the written statement and the other averment of written statements that the Will was obtained by undue influence and coercion clearly establishes the fact of execution of Will by the testator and it supports the case of plaintiff that Bimal Behari Sen executed a Will in respect of 29, Pipe Road property and his promissory notes, security moneys for his youngest daughter Gita Rani Sen. The endorsement of the Registrar on the cover dated 3.11.49 further establishes that the testator Bimal Behari Sen himself came to the office of the Registrar for depositing the Will on 3.11.49 at 11.55 a.m. Pleading itself is not proof unless admitted by other party and, the allegation of appellants in written statement about undue influence and coercion of Ajit Bose and Aroon Kumar Bose on testator behind execution of Will and that the testator wanted to destroy the Will have not been proved as defendant appellants failed to prove these facts by any cogent evidence.
55. Mr. Banerjee, the learned senior Counsel for the appellant argued that the solicitor did not state in his evidence that the Will was read over and explained to the testator and this is one of the ground to establish suspicious circumstances surrounding the Will. Mr. Banerjee further submitted that in the Will two types of papers have been used in two pages and the water mark of crown does not appear in the other page of the paper. The Will was typed in two pages, that is, first page and its reverse page and position of signature of testator and witnesses are different in two pages. In the first page of the Will the signatures of the attesting witnesses are above the signature of the testator whereas in the second page the signature of the attesting witnesses are below the signature of the testator. These circumstances according to Mr. Banerjee strengthens the case of the appellant that the plaintiff propounder failed to dispel and remove suspicious circumstances behind the execution of the Will.
55A. We are not at all impressed with the aforesaid submissions of Mr. Banerjee and in our opinion the said submissions have no foundation at all. From the evidence and materials on record as well as the letter written by the testator on his pad addressed to the Postmaster, Ranchi Post Office reveals that he had B.L. Degree. He was an educated person having degree in law. The testator was not an illiterate person. The evidence indicates that the testator himself read the Will and thereafter signed on the Will and he asked P.W. 7 to sign on the Will using his full name. Accordingly, the suhmission of Mr. Banerjee that from evidence of solicitor it did not transpire that the Will was read over and explained to the testator and it was a ground of suspicious circumstances has no foundation when we find that the testator having law degree was well conversant with the entire matter and effect of the disposition made by him and himself read the Will and thereafter put his signature.
56. We have carefully perused the original Will and we do not find any discrepancy in the Will to raise the ground that there were suspicious circumstances behind the execution of the Will and the suspicious circumstances were not removed or dispelled. We find that the Will consists of four pages in all on two sheets of papers. It is true that the first paper containing two pages bears water mark or crown mark and the second paper which is blank on third page having note of the Registrar on the fourth page does not have the same water mark of crown but, we find that standard of paper are not different and in the second paper we find a year mark 1946. Considering the standard of paper we are of opinion that both sheets of paper are of same standard and there is no law that each sheet of paper must bear water mark of crown. The ground that in the first page of the Will the signature of the witnesses appearing first and testator's signature are below the signature of attesting witnesses and which is just reverse in the second page is not a ground to come to the conclusion that the Will was surrounded with suspicious circumstances. In the second page or the reverse side of first page the date of execution has been mentioned and in it we find that the word 'first' has been written by the testator himself and manner of handwriting and ink used in writing the word 'first' completely tallies with the manner of handwriting and ink used by the testator in his signature. The word 'first' has been used to show date of execution as first day of March, 1949 and entire Will was typed and there was blank portion only relating to date of execution and therein the word 'first' was written by testator himself.
57. We have already indieated above about note of the Registrar dated 3.11.89 and also his note when he opened the envelope in presence of Aroon Kumar Bose on 23.11.49. We find further note on the cover of the envelope of Registrar dated 15.12.49 which shows that after receiving requisition from Court he forwarded the Will to the District Delegate at Alipore. In this connection we like to place reliance on a decision of the Hon'ble Supreme Court in Hazara Bradri and Ors. v. Lokesh Dutta Multani reported in 2005 AIR SCW 6119. In this reported case it was found that the testator had used different pen than the pen used by the attesting witnesses. It was also found that the testator had signed in some pages of the Will twice. It was proved that the testator executed the Will out of his own volition in healthy state of mind. The Delhi High Court recorded finding that the Will was not surrounded by suspicious circumstances. The caveator defendant being aggrieved preferred appeal in the Supreme Court and the Supreme Court considering the aforesaid circumstances held that, simply because the testator used different pen and had signed some of the pages twice is not a ground to hold that the Will was suspicious. Considering the facts and circumstances of the present case and the principles of law including the principles laid down by the Supreme Court in Hazara Bradri and Ors. v. Lokesh Dutta Multani (supra) we are of opinion that the aforesaid grounds mentioned by Mr. Banerjee, learned Advocate for the appellant are not at all convincing to come to the conclusion that the Will was surrounded by suspicious circumstances.
58. We now like to answer the question raised by Mr. Banerjee, the learned senior Counsel for the appellants as to whether any reliance can be placed in this case on the evidence of P.W. 7 to P.W. 9 and according to him evidence of P.W. 7 to P.W. 9 cannot be looked into. Let us consider whether the Trial Court gave any opportunity to the defendants to cross-examine the said witnesses. Before giving answer to this point and the principles of law relating to evidentiary value of P.W. 7 to P.W. 9 we think it expedient in the interest of justice to mention some of the factual aspects which transpires from the Lower Court Record.
59. P.W. 7 to P.W. 9 were examined on 18.11.58 and on that date examination-in-chief of P.W. 9 was incomplete. Defendants in spite of having opportunity to cross-examine P.W. 7 and P.W. 8 did not cross-examine them on that date and after rejection of their application their lawyer did not attend Court for cross-examination and in evidence of P.W. 7 and P.W. 8 in the place for cross-examination bears endorsement of the Trial Court "none appears". It is evident that the Trial Court after receiving order of the Division Bench of this Court passed in Civil Rule No. 3785 of 1958 dated 13.4.59 by Order No. 84 dated 5.6.59 passed the order stating that Ajit Kumar Bose would be examined as Court witness in view of direction of High Court and both parties will cross-examine him. Thereafter, plaintiff will produce P.W. 7, P.W. 8 and P.W. 9 for cross-examination by the defendants. Other witnesses of plaintiff would be examined thereafter and the Trial Court fixed 28.7.59 as the date of further hearing of the suit. The defendants did not allow the learned Trial Court to proceed with the suit and at every step and on all dates of evidence, the defendants filed applications for adjournments either on the ground of moving Supreme Court or moving the High Court for review, further revision etc. The Court fixed 14.9.59, 21.11.59, 7.1.60, 24.2.60, 25.3.60, 8.4.60, 18.4.60, 16.5.60and 27.5.60, for evidence. But the defendant Nos. 1 and 5 on all the abovestated dates took adjournments on the aforesaid grounds, though plaintiff filed hajira on those dates. Finally on 8.6.60 the Court examined Ajit Kumar Bose as Court witness and he was cross-examined in part by the plaintiff. Next date of evidence was 23.6.60 and the defendants as usual started taking adjournments on the same grounds of either moving the Supreme Court or the High Court.
60. Finally on 22.9.61 the learned Trial Court rejected all the petitions and fixed 24.11.61 as hearing of the application of plaintiff for administrator pendente lite. In the said matter also the defendants took several adjournments and did not allow the learned Trial Court to dispose of plaintiff s application for appointing him administrator pendente lite. The learned Trial Court subsequently by Order No. 192 dated 31.8.64 appointed plaintiff as administrator pendente lite and fixed 2.12.64 for further hearing of the suit. The defendants challenged the order dated 31.8.64 in the High Court in Civil Revision No. 3469 of 1964 and obtained an order of stay of further proceeding. Since then further proceeding of the suit in the Trial Court was stayed for 12 years. From the lower Court record we find that a Division Bench of this Court disposed of the Civil Revision No. 3469/64 on 23.3.76 and dismissed the said revision filed by the defendants and affirmed the order of the learned Trial Court appointing plaintiff as administrator pendente lite. Thereafter, surprisingly the Lower Court record was found missing, and not only that, some of the exhibits were also lost. The missing of Lower Court Record and the manner in which the suit proceeded gives us the clear impression that when all attempts of defendants to delay progress of the probate suit failed, and they lost in all their attempts at High Court and Supreme Court, the Lower Court Record was misplaced and Exhibits 1 to 6 and 8 were lost. In that process 20 years more passed. There is no evidence as to who were behind missing of the record and exhibits but, if we consider the entire background starting from 1950 we can understand who would have acquired benefit, if the records were not traced out in 2000 and the Trial Court on the basis of prayer of plaintiff to dispose of the suit early (as he became old) proceeded to dispose of the 55 years old pending suit.
61. Thereafter, it appears that on 10.8.2000 there was direction by the learned Trial Court to trace out the original record and thereafter the suit again proceeded. The Trial Court informed the District Judge, Alipore about missing of some of the documents and exhibits and the District Judge directed the learned Trial Court for reconstruction of records in accordance with rules. Thereafter, the present appellants filed written statement and additional written statement and P.W. 10, P.W. 11 and D.W. 1 were examined. During this gap of 47 years from 1958 to 2005 P.W. 7 to P.W. 9 expired. If we carefully consider the different order-sheets of the Trial Court and the conduct of the defendants to stall progress of the suit at every step it will reveal that the defendants in spite of having opportunity to cross-examine P.W. 7, P.W. 8 and P.W. 9 did not cross-examine them and, in spite of giving them opportunity to cross-examine the aforesaid witnesses by the Trial Court and fixing several dates for evidence the defendants did not cross-examine P.W. 7, P.W. 8 and P.W. 9 and went on taking adjournments.
62. It is, therefore, clear that the defendant appellants themselves waived their right of cross-examining P.W. 7, P.W. 8 and P.W. 9. The appellants are now estopped from raising the question that the appellants were not given opportunity to cross-examine P.W. 7, P.W. 8 and P.W. 9. If a party in spite of having opportunity to cross-examine any witness produced by the other party went on killing time in their attempt to drag the case and delay disposal of the suit, the said party cannot subsequently take advantage of his own wrong and, at a later stage almost 47 years after caimot claim that he was not given opportunity to cross-examine witness of plaintiff. In the instant case the application for probate was filed in the year 1949 and the said suit was disposed in 2005 and Lower Court Record clearly reveals that the conduct of the defendants was mainly responsible for the delay. Witnesses namely P.W. 7, P.W. 8 and P.W. 9 died in the meantime and the Trial Court gave them opportunity to cross-examination of P.W. 7 to P.W. 9 by his order dated 5.6.59 and fixed several dates of evidence but the defendants did not cross-examine the abovestated three witnesses.
63. From the above facts and circumstances it is clear to us that the defendants were given opportunity to cross-examine P.W. 7 to P.W. 9 but the defendants by their conduct did not avail of the said opportunity of cross-examination of P.W. 7 to P.W. 9. In our opinion, the law is that, "If a party has a right of cross-examination at a particular stage of the proceedings, and there is opportunity of exercising that right, it is equivalent to actual cross-examination. If the opportunity is not availed of the inference is that the opposite party thought it would be futile to challenge the testimony." This we have quoted from page 746 of the book 'Sarkar on Evidence', 15th Edition, Reprint 2004 Volume I.
64. We also place reliance on 'Phipson's Manual of the Law of Evidence', Tenth Edition at page 284, where it has been observed in the said book that, "Failure to cross-examine a witness will generally amount to an acceptance of his version of a transaction." In the said book concerning chapter of cross-examination it has been mentioned that, "When a witness has been intentionally called and sworn by either party, any other party has a right, if the examination-in-chief is either waived or closed, to cross-examine him." At page 283 it has been mentioned that, "And, if a witness die, or become permanently incapacitated, before cross-examination, his evidence will be admissible, though its weight may be impaired." The abovequoted observation relating to failure to cross-examination is applicable in this case from abovestated facts and circumstances as the defendants in spite of having sufficient opportunity given by the Trial Court did not cross-examine P.W. 7 to P.W. 9 and waived their right to cross-examine the said witnesses. The said right of cross-examination was given to them by order dated 5.6.59 and after 47 years the appellants cannot agitate in this Court that they were denied right to cross-examine P.W. 7 to P.W. 9.
65. We also like to quote a few sentence from the book 'Wigmore on Evidence' Volume V, Third Edition. At page 51 of the said book it has been observed as follows:
1371. Opportunity of cross-examination, as equivalent to actual cross-examination. - Under that sub-heading in the said book it has been observed that, "The principle requiring a testing of testimonial statements by cross-examination has always been understood as requiring, not necessarily an actual
cross-examination, but merely an opportunity to exercise the right to cross-examine if desired. The reason is that, wherever the opponent has declined to avail himself of the offered opportunity, it must be supposed to have been because he believed that the testimony could not or need not be disputed at all or be shaken by cross-examination. In having the opportunity and still declining, he has had all the benefit that could be expected from the cross-examination of that witness. This doctrine is perfectly settled." Ellenborough, L.C.J., in Cazcnove v. Vaughan 1 M & S 6, observed that, "The rule of the common law is that no evidence shall be admitted but what is or might be under the examination of both parties. But if the adverse party has had liberty to cross-examine and has not chosen to exercise it, the case is then the same in effect as if he had cross-examined. Here, then the question is whether the defendant had the opportunity of cross-examining.
66. If we follow the principle as mentioned above in this case, it would be apparently clear that in spite of giving sufficient opportunity to the defendants to cross-examine the attesting witnesses of the Will, the defendants did not cross-examine the said witnesses and went on taking adjournments for several years and in that process 47 years passed and the attesting witnesses expired. The inference or tne natural conclusion in this case would be that the defendants were given opportunity by the Trial Court to cross-examine P.W. 7 to P.W. 9 and they had the opportunity to cross-examine the said witnesses but, the defendants did not exercise that liberty and did not avail of the liberty of cross-examination of P.W. 7 to P.W. 9 and have waived their right. In the instant case the Court can definitely place some reliance on the evidence of P.W. 7 to P.W. 9 and can arrive at a decision on the basis of evidence of other witnesses, materials on record and circuaastances.
67. In support of his contention relating to value of evidence who was not cross-examined Mr. Banerjee, the learned Advocate for the appellants cited two decisions. In Chatoo Kurmi v. Rajaram Teioari reported in 11 CLJ 124, it was held by a Full Bench of this Court that it is the right of every litigant in a suit, unless he waives it, to have an opportu lity of cross-examining witnesses whose testimony is to be used against him. In MT. Horil Kuer v. Rajab Ali reported in AIR 1936 Patna 34, it was held that, the deposition of a witness who has been examined-in-chief but has not been cross-examined on account of certain circumstances which made the cross-examination impossible, need not be ignored and can be treated as evidence on the record. The weight to be attached to such evidence depends on the circumstances and the Court should look at the evidence carefully to see whether there are indications that by a completed cross-examination the testimony of the witness was likely to be seriously shaken or his good faith to be successfully impeached. These two decisions in our opinion do not help the appellants. It is clear from the Lower Court Record that in spite of having opportunity, the then defendants waived their right of cross-examination of P.W. 7 to P.W. 9 and accordingly evidence of those witnesses cannot be totally discarded and Court has to consider such evidence along with other evidence and materials on record to come to a conclusive decision.
68. After considering the evidence of the witnesses particularly P.W. 10, P.W. 11, D.W. 1 and the documents including the note of the Registrar dated 3.11.49 regarding production of the Will by the testator himself for custody, we are firm in our opinion that the evidence and circumstances clearly proves that the Will was a genuine one and no suspicious circumstanes was there behind the execution of the Will. Evidence of P.W. 10 is very important in this respect as she was above 16 years 3 months when the Will was executed and her evidence proves that her father was a normal man and full of all normal senses. Her father was mentally disturbed due to torture of her brother after execution of Will and finally after death of her mother could not come out of the shock. Her evidence also proves that her father executed the Will in full senses considering her illness and her future.
69. The defendants in their subsequent written statement and D.W. 1 in his examination-in-chief on affidavit have made false statement that in spite of direction of the High Court Ajit Kumar Bose was not examined as a Court witness. The said part of written statement and examination-in-chief of D.W. 1 on affidavit is totally false in view of our earlier discussion in which we have mentioned that the learned Trial Court examined Ajit Kumar Bose as Court witness on 8.6.60 and in the Lower Court Record xerox of the evidence of Ajit Kumar Bose is there and in the paper book at page 66 copy of the Trial Court's order dated 8.6.60 has been annexed which would reveal that on that date Ajit Kumar Bose was examined as Court witness and was cross-examined in part by the plaintiff.
69A. Earlier we have discussed the evidence of D.W. 1 which clearly reflects the nature and conduct of the present appellants. In examination-in-chief he admitted that Bimal Behari Sen used to maintain family of his father. This evidence in our opinion is sufficient to prove that Bimal Behari Sen was not insane or was not suffering from mental incapacity or any mental disease and he was not mentally deranged. The letters marked as Ext. 9 series particularly the letter Ext. 9/6 and the own handwritten letter of Bimal Behari Sen marked as Ext. A dated 6.9.48 addressed to the Postmaster, Ranchi Post Office clearly prove that Biinal Behari Sen had full testamentary capacity to execute the Will and he was fully aware about disposition made by him. D.W. 1 in his evidence stated that Biinal Behari Sen had law degree from Calcutta University and it supports that the testator was fully aware about the disposition made by him and the entire evidence and the circumstance clearly prove that he executed the Will out of love and affection on his youngest sister Gita Rani Sen, who at that time was suffering.from T.B.
70. Non-examination of propounder is not a ground to refuse probate of the Will when the main beneficiary is Gita Rani Sen who deposed herself as P.W. 10. Her evidence reveals that the propounder or plaintiff Aroon Kumar Bose is now over 81 years in age and is suffering from diabetic coma and breathing trouble and is not in a position to attend Court to give evidence and she further stated that Aroon Kumar Bose at present has no capacity to speak. Evidence of P.W. 10 in this respect has been corroborated by P.W. 11 Sirajul Mondal, an employee of Capital Nursing Home. P.W. 11 produced certain medical papers from the said nursing home which were marked as Exts. 11 and 12. The said papers reveal that Aroon Kumar Bose was aged 80 on 4.4.05 and was suffering from Ischaemic Heart Disease with Pneumonitis with recently detected DM with Hyperasmolar non-ketotic come with nephropathy with BHP. Therefore, in this case non-examination of the propounder is not a ground to come to the conclusion that execution of the Will was surrounded with suspicious circumstances and the said suspicious circumstances was not removed. In this case there is no evidence or materials before the Court to show that Aroon Kumar Bose took active part behind execution and attestation of the Will.
71. He could have been examined in time, if the defendants co-operated with the Court in the trial but, the defendants since the filing of the application for grant of probate was delaying the matter and was not at all willing to proceed with the said suit and by adopting various means was successful in dragging the suit for over 50 years. During these gap of 50 years the attesting witnesses died and the plaintiff propounder became unfit to attend Court. The Court cannot overlook the whole facts and circumstances which caused delay of over 50 years to dispose of the probate suit. The oral and documentary evidence and considering entire facts and circumstances that came before the Court and considering preponderance of probability we find that learned Trial Court made no mistake by granting probate on the Will of the testator Bimal Behari Sen.
72. The decision in Daulat Ram v. Sodha (supra) cited by Mr. De for the respondent is pertinent in this appeal. The said decision reveals that burden of proof is definitely on propounder and when suspicious circumstances are removed, the onus shifts on the persons who alleges the Will as being forged or obtained under undue influence or coercion. Considering the contents of the written statement we are clearly of opinion that execution of the Will by the testator was not denied by the defendant appellants. The appellants in their evidence hopelessly failed to prove that the Will was obtained under undue influence and coercion. There is no need of discussion of other derisions cited by the learned Advocate for the respondent as the entire evidence, circumstances are in favour of the respondent to make it clear that there was no undue influence or coercion behind the execution of sthe Will and the testator haying law degree on his own for the benefit of his youngest ailing daughter executed the Will presented the Will before the Registrar for safe custody.
73. The decisions cited by the learned Advocate, for the appellant namely, Promila Sundari Devi v. Bijoy Ghoeal (supra) are not applicable in this case. We have already discussed that in the instant matter from evidence and circumstances nothing has transpired to show that there were number of suspicious circumstances surrounding the execution of the Will. Suspicious circumstances depend upon facts and circumstances of each case and in the present case our aforesaid discussion makes the position clear that there was no suspicious circumstances. The other decision namely Indu Bala Bose v. Mandira Chandra Boee (aupra) are also, not applicable in this case as alleged suspicious circumstances behind the execution of the Will has been well-explained by the propounder and in the instant case propounder himself did not take any part in the execution of the Will.
74. The other Supreme Court decision in H. Venkatachala Iyengar v. B.N. Thimmajamma (supra) also is of no help to the appellants. In this decision he Hon'ble Apex Court, laid down pertain guidelines concerning proof of Will and onus on the propounder. The Apex Court observed that,-
The Will'has to be,proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of others documents so in the case of proof of Wills, it would be idle to expect proof with mathematical cecertainty.... Ordinarily when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by'law, Courts would be justified in making a finding in favour of the propounder.... If it is shown that the propounder has taken a prominent part in the execution of the Will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the Will and the propovmder is required to remove the said suspicion by clear and fatisfactory evidence.... It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on Wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence.
We have fully discussed the oral and documentary evidence, the circumstances and the chequered history and we are firm in our opinion that there was no suspicious circumstances behind the execution of the Will and all the alleged suspicious circumstances has been removed and dispelled by the plaintiff.
75. The discussion made above considering the evidence, materials on record and circumstances make it clear that there is no ground to interfere with the final decision arrived at by the learned Trial Court in decreeing the suit and granting probate in favour of the respondent. There is no merit, in the appeal and occordingly the appeal fails and is dismissed with costs which we assess at Rs. 15,000/- to be paid by the appellants to the respondent.
76. Send down the Lower Court record along with copy of this judgment and order to the learned Trial Court below for information and necessary action.
Bhaskar Bhattacharya, J.
77. Let Xerox certified copy of this order be given to the parties within one week from the date of making of such application.