Biswajit Goswami VsPatit Bandhu Das and Others

S.C. Das, J.—This is an appeal filed u/s 384 of Indian Succession Act, 1925 against the Order dated 17.12.2004 passed by learned Additional District Judge, Court No. 4, West Tripura, Agartala in Case No. Misc. (P) 11 of 2001 where under the learned Additional District Judge rejected the prayer of granting probate of a Will, filed by the appellant-petitioner. At the very inception, learned senior counsel, Mr. A.K. Bhowmik has submitted that the appeal ought to be filed u/s 299 of the Indian Succession Act, but Section 384 of the Indian Succession Act has been wrongly quoted and therefore, prayed for treating it as an appeal u/s 299 of the Indian Succession Act to which, learned counsel, Mr. P. Chakraborty for the respondents, fairly, has no objection and hence, the appeal is treated as one u/s 299 of the Indian Succession Act.

Heard learned senior counsel, Mr. A.K. Bhowmik assisted by learned counsel, Mr. R. Datta for the appellant and learned counsel, Mr. P. Chakraborty for the respondents.

The appellant as petitioner presented a petition u/s 276 of the Indian Succession Act, 1925 before the District Judge, West Tripura, Agartala praying for granting probate of a Will dated 12.08.1998 executed by one Prahlad Das Baishnab (Bairagi), Son of late Mukunda Das Baishnab (Bairagi) of Village - East Champamura, P.O. Old Agartala, P.S.-East Agartala, District-West Tripura. The original Will alleged to have executed by Prahlad Das Baishnab has been annexed as Annexure-A to the petition filed u/s 276 of the Indian Succession Act.

It is inter alia stated in the petition that Prahlad Das Baishnab and his wife Smt. Kamal Priya Baishnab were follower of Baishnab cult and they have no issue. Prahlad Das Baishnab had landed properties and he executed a Will dated 12.08.1998 bequeathing his properties to the propounder petitioner Biswajit Goswami, to his wife Kamal Priya Baishnab and another servant of the testator namely, Shri Patit Bandhu Das. It is further stated in the petition that the properties bequeathed by Prahlad Das Baishnab situated within the jurisdiction of the Court and that by executing the Will, Prahlad Das Baishnab bequeathed .60 acres of his land to his wife Kamal Priya Baishnab, .04 acres of land to Patit Bandhu Das and the rest 1.12 acres of land to the propounder petitioner Biswajit Goswami. Prahlad Das Baishnab died on 18.11.1998 and therefore, the petitioner being the executor of the Will submitted the petition for granting probate of the Will.

Respondent Nos. 1 and 2 contested the claim of the petitioner by filing a written objection inter alia stating that no such Will was executed by Prahlad Das Baishnab on 12.08.1998 and the claim of the petitioner i.e. the propounder is utterly false. It is also stated that O.P. No. 1 Kamal Priya Baishnab, wife of Prahlad Das Baishnab executed a registered Will dated 27.12.1999 and thereby bequeathed the property left by Prahlad Das Baishnab to O.P. No. 2 Patit Bandhu Das and another Smt. Sishubala Giri and copy of that Will has been annexed. It is also stated that Prahlad Das Baishnab left behind 2.26 acres of land and after his death Kamal Priya Baishnab sold 1.30 acres of land and the remaining properties measuring .96 acres, she bequeathed to Patit Bandhu Das and Smt. Sishubala Giri.

In course of trial, the propounder petitioner examined himself as P.W. 1 and also examined three more witness namely, P.W. 2, Paresh Chandra Pal, a deed writer, who has written the Will and P.W. 3, Ranjit Kr. Debnath Baidhya and P.W. 4, Krishna Ch. Deb, both attesting witnesses of the Will. The original Will, which has been annexed as Annexure-A to the petition filed u/s 276 of the Indian Succession Act, has been proved as Annexure-1, the signature of testator has been proved as Annexure-2 series and the signature and endorsement of the writer marked as Annexure-3, signature of Ranjit Kumar Debnath Baidya, attesting witness proved as Exbt. 4 and signature of Krishna Ch. Deb, the attesting witness marked as Exbt. 4/1.

Respondent Nos. 1 and 2 examined themselves as O.P.Ws. 1 and 2 and also examined 5 more witnesses namely, O.R.W. 3, Smt. Sishubala Giri, O.P.W. 4, Shri Sailesh Ch. Das, O.P.W. 5, Shri Ramesh Ch. Acharjee, O.P.W. 6, Shri Ranjit Debnath and O.P.W. 7, Shri Prabodh Lal Singha.

No documentary evidence adduced by the opposite parties.

Respondent No. 3, Harekrishna Goswami, father of the propounder/petitioner did not contest the case.

It is an undisputed fact that Prahlad Das Baishnab (Bairagi) and his wife Kamal Priya Baishnab had no issue and they were followers of Baishnab cult. Harekrishna Goswami, the father of propounder petitioner Biswajit Goswami is the brother-in-law of the testator Prahlad Das Baishnab being the brother of his wife Kamal Priya Baishnab. Since Prahlad Das Baishnab and Kamal Priya had no other relative or next kin to look after them, they brought Hare Krishna Goswami with family and Prahlad Das Baishnab donated .10 acres of land to Harekrishna Goswami to construct his house in the premises of the house of Prahlad Das Baishnab and accordingly, Harekrishna with his family residing there. Respondent No. 2, Path Bandhu Das in his childhood was engaged by Prahlad Das Baishnab to look after the domestic cattle''s and was residing in the house of Prahlad Das Baishnab.

The testator Prahlad Das Baishnab alleged to have executed Exbt. 1, the Will written by the P.W. 2, Paresh Ch. Pal in the presence of attesting witnesses including P. Ws 3 and 4.

I have meticulously gone through the Will in which Prahlad Das Baishnab described the property left by him and the reasons for his execution of the Will as well as the distribution of share thereof to the propounder petitioner, his wife and Patit Bandhu Das. In the Will, he stated that he was owner of total 1.86 acres of land of different class and out of it, he donated .10 acres of land to his brother-in-law Harekrishna Goswami and the rest 1.76 acres of land left with him and since he and his wife became old and they have no issue, so, he decided to execute the Will distributing his properties. He has clearly stated in the Will that Harekrishna Goswami, the only brother of his wife likely to be the owner of the property after the death of his wife since they left no other successors and therefore, to avoid any dispute after the death of his wife, he considered execution of the Will. It is accordingly stated that after his death, his wife will get 60 acres of land described in Schedule ''Ka'' of the Will and Patit Bandhu Das since served him, he was given .04 acres of land described Schedule ''Kha'' of the Will and the rest 1.12 acres of land was described in Schedule ''Ga'' of the plaint given to Biswajit Goswami, son of his brother-in-law Harekrishna Goswami.

The Will has been written in Bengali language in details assigning reasons.

Let us now have a glimpse to the evidence on record. P.W. 1, the appellant petitioner is the propounder of the Will. The testator mentioned in the Will that he should be the executor of the Will. P.W. 1, in his deposition, stated that Prahlad Das Baishnab was his uncle i.e. the husband of sister of his father and he executed the Will on 12.08.1998. Prahlad Das Baishnab died on 18.11.1998. He left behind Kamal Priya Baishnab as his wife, who is the sister of his father. His uncle Prahlad Das Baishnab and aunt Kamal Priya had no issue. The Will was written by Paresh Ch. Pal, a deed writer and it was executed in presence of Ranjit Kr. Debnath Baidya, Krishna Ch. Deb and Dukha Haran Das. By the Will, the deceased bequeathed his property of 0.60 acres to Kamal Priya Baishnab, .04 acres to Patit Bandhu Das and the rest 1.12 acre to him. He identified the original Will, which is annexed as Annexure-A.

In cross examination, he stated that he knows the land which has been given to him by the will of the testator. He cannot say the Khatian number and Dag number in respect of the land given to him. He was not present at the time of writing or execution of the Will. After death of testator, Prahlad Das Baishnab, he and his sister Gita Chakraborty purchased .60 acres of land from their aunt Kamal Priya Baishnab, which Kamal Priya Baishnab got by dint of the Will. They purchased the land jointly. Before the death of Prahlad Das Baishnab, he came to know about the Will and he saw the Will. Prahlad Das Baishnab handed over the Will to him for keeping it in safe custody. He thereupon brought the Will from Prahlad Das Baishnab about one and half/two months before the death of Prahlad Das Baishnab. Before filing of the petition of probate, he became aware of the plot numbers of the land given to him by Will. He denied the suggestion that Prahlad Das Baishnab did not execute any Will and his prayer was false.

P.W. 2, the writer of the Will in his examination-in-chief submitted by affidavit stated that on 12.08.1989, he wrote the Will as per instruction of Prahlad Das Baishnab in his residence and read over it and explained the contents of Will to Prahlad Das Baishnab and being satisfied, Prahlad Das Baishnab put his signature in all pages of the Will in his presence and in presence of other witnesses. He also put his signature in the last page of the Will after reading it over to Prahlad Das Baishnab. He further stated that he read the Will as per instruction of Prahlad Das Baishnab sitting in the Deed Writers Association Hall and then he took the Will to the house of testator for execution. Before it was signed by Prahlad Das Baishnab, the Will was read over and explained and being satisfied, Prahlad Das Baishnab put his signature in all pages. He proved the written Will marked as Exbt. 1. He also proved the signature of Prahlad Das Baishnab markedas Exbt. 2 series and also proved his own signature marked as Exbt. 3. He further stated that Prahlad Das Baishnab was physically fit at the time of execution of the Will.

In cross-examination, he stated that he handed over the Will to Prahlad Das Baishnab. It was an unregistered Will. Witnesses of the Will were present at the time of execution of the Will. He does not know the address of the attesting witnesses. He denied the suggestion that Prahlad Das Baishnab did not instruct him to draft and write the Will and that his deposition is false.

P.Ws. 3 and 4 categorically stated that they were present at the time of execution of Will by Prahlad Das Baishnab and Prahlad Das Baishnab signed the Will in their presence and thereafter, they also put their signature in Will. The Will was read over by the writer P.W. 2, Paresh Ch. Pal and Prahlad Das Baishnab being satisfied signed the Will. He was physically and mentally fit at the relevant point of time.

O.P.W. 1, Kamal Priya Baishnab is the wife of the testator Prahlad Das Baishnab. In her examination-in-chief submitted by affidavit, she stated that her husband did not make any Will in his lifetime. On 23.12.1998, after the death of her husband, for his funeral ceremony, she sold out .60 acres of land to Biswajit Goswami (petitioner) and Gita Chakraborty from Khatian No. 270. Since they have no issue, on 27.12.1999, she executed a registered Will bequeathing the property as trust property to her adopted son Patit Bandhu Das (respondent No. 2) and one sebika, Sishubala Giri land measuring .96 acres.

In cross-examination, she stated that Biswajit Goswami looked after her husband and other two persons also looked after her husband. Once her husband sustained fracture injuries in his leg, on fall from a tree and at that time, Biswajit Goswami arranged consulting of doctor for the treatment of her husband. She denied the suggestion that except Biswajit Goswami and herself, there was none to look after her husband before his death. About 5 years ago (from the date of her deposition recorded on 6th August, 2003) in their house, some papers were written in presence of Biswajit Goswami and other neighbourers, but those were not signed by her husband. She denied the suggestion that her husband executed a Will during his lifetime in presence of the deed writer and other witnesses. She admitted that her husband by his Will gave her land measuring .60 acres and she sold that piece of land to Harekrishna Goswami. She further stated that she did not hear that her husband executed any Will.

O.P.W. 2 in his examination-in-chief submitted by affidavit stated that on 23.12.1998, after the death of Prahlad Das Baishnab for his Shradha ceremony, Kamal Priya sold .60 acres of Null land to Biswajit Goswami and Gita Chakraborty. He also stated that Kamal Priya alleged that Biswajit has cheated 10 Gandas of land at the time of registration and that in place of .40 acres, it was written .60 acres and there was Panchayat meeting held, but Biswajit was not present.

In his cross-examination, he denied the suggestion that he was engaged for keeping cows in the house of Prahlad Das Baishnab at the age of 10 years. Smt. Sishubala Giri is his grandmother (mother''s aunt). During life time of Prahlad Das Baishnab, he used to do bagging for his livelihood. When Ma-Gosai made a Will then it was learnt that Prahlad Das Baishnab during his lifetime made a Will. Sishubala Giri has her own son and daughters and other members of the family. Once Prahlad Das Baishnab sustained fracture injuries in his leg and Biswajit arranged for his treatment and looked after him and thereafter, Prahlad Das Baishnab recovered from his illness. He learnt that Prahlad Das Baishnab in his Will bequeathed him a piece of land measuring .04 acres. He denied the suggestion that since he was only given .04 acres of land, being dissatisfied, he deposed falsely.

O.P.W. 3 Sishubala Giri is the grand mother of O.P.W. 2 Patit Bandhu Das. In her examination-in-chief, she stated that she was engaged as Sebika of Prahlad Das Baishnab and was working as such in that house. She also stated that on 23.12.1998, Kamal Priya sold out the .60 acres of land to Biswajit and his sister Gita and that Biswajit cheated .20 acres of land at that time. She also stated that on 27.12.1999, Kamal Priya Baishnab executed a registered deed of her movable and immovable property in her favour and in favour of her adopted son Patit Das.

In cross-examination, she stated that Biswajit Goswami used to reside in the same homestead of Prahlad Das Baishnab and she was also residing in the same house. She did not know whether Prahlad Das Baishnab executed any Will. Prahlad Das Baishnab engaged her for cooking. She denied the suggestion that Prahlad Das Baishnab executed Will bequeathed his properties to his wife Kamal Priya, Patit Bandhu Das and Biswajit Goswami and being aggrieved, she deposed falsely.

O.P.Ws. 4, 5, 6 and 7, as it appears examined unnecessarily and I find nothing material in the deposition of those witnesses. In their examination-in-chief submitted by affidavit, they have stated that a village meeting was called by Kamal Priya Baishnab in respect of the Will alleged to have executed by Prahlad Das Baishnab, but Biswajit did not attend the meeting. Some of them stated that they did not know what has been stated in the examination-in-chief submitted by affidavit. They are contradicting each other in respect of discussion in the alleged meeting. P.W. 7 in his cross-examination stated that he learnt from Harekrishna Goswami and Kamal Priya that Prahlad Das Baishnab during his lifetime executed the Will and that statement of O.P.W. 7 rather supported the case of the petitioner-propounder.

The Trial Court refused to grant probate observing that the deposition of P.W. 2 is not clear as to whether the Will was written in the deed writer''s office at Sonamura or at the residence of the testator at Champamura and if the testator was having with fracture injury, how he could go to deed writers office to instruct P.W. 2 for writing the Will. Further Kamal Priya Baishnab did not identify the signature of her husband Prahlad Das Baishnab in the Will and there was no reason for depriving her by her husband and mainly on these two grounds, the probate court refused to grant probate.

P.W. 1, the propounder-petitioner stated that he was not present at the time of writing and execution of the Will. In examination-in-chief, he stated that about one/one and half months before death of Prahlad Das Baishnab, the Will was handed over to him by the testator to keep it in safe custody and he thereafter, gone through the Will and kept it in safe custody. As it appears, Biswajit Goswami is the son of only brother of kamal Priya Baishnab, the wife of Prahlad Das Baishnab to whom the maximum property has been bequeathed by Prahlad Das Baishnab and he assigned reason for his decision in the written Will. Prahlad Das Baishnab also stated that since he and his wife had no issue, they brought Harekrishna and donated .10 acres of land to Harekrishna to construct his hut in the house premises of Prahlad Das Baishnab and was residing there and looking after them. P.W. 2, the scribe of the Will clearly stated that he wrote the Will as per instruction of the testator. In his deposition submitted by affidavit, he stated that on 12.08.1999, he wrote the Will as per instruction of Prahlad Das Baishnab in his residence, read it over to him of the contents of the Will and Prahlad Das Baishnab with his satisfaction signed the Will in presence of the attesting witnesses. On 01.07.2003, the date of his production for cross-examination, he stated that on 12.08.1998, he wrote the Will as per instruction of Prahlad Das Baishnab in the Deed Writers Association Hall and then he took the Will in the house of the testator for execution. On 12.08.1990, he went to the residence of testator and read over the contents of the Will and being satisfied, Prahlad Das Baishnab put his signature in all pages of the Will in presence of the witnesses and he identified the signatures. I find no serious discrepancy in the evidence of P.W. 2 in respect of the writing of the Will. The Will has been written at the instruction of the testator. The testator given the instruction to write the Will and the writer might have prepared the draft sitting in the office of the Deed Writers Office and then went to the house of the testator read over it and it was executed. This circumstance can in no way be said to be a suspicious circumstance to doubt the due execution of the Will. The opposite parties could not make out a special case to raise any suspicion regarding execution of the Will.

Learned counsel, Mr. Chakraborty in course of his argument referred the case of

Babu Singh & Ors. Vs. Ram Sahai @ Ram Singh reported in : AIR 2008 SC 2485

and submitted that it is the duty of the propounder of the Will to remove all suspicious circumstances. There is no dispute of the fact that if there is any suspicious circumstance that is to be removed by the propounder of the Will.

Learned counsel referred Para. 8 of the judgment, which reads as follows:-

The High Court by reason of the impugned judgment dismissed the Second Appeal preferred by the appellant herein opining that no substantial question of law arose for its consideration.

In terms of Section 68 of the Act, although it is not necessary to call more than one attesting witness to prove due execution of a Will but that would not mean that an attested document shall be proved by the evidence of one attesting witness only and two or more attesting witnesses need not be examined at all. Section 68 of the Act lays down the mode of proof. It envisages the necessity of more evidence than mere attestation as the words ''at least'' have been used therein. When genuineness of a Will is in question, apart from execution and attestation of Will, it is also the duty of a person seeking declaration about the validity of the Will to dispel the surrounding suspicious circumstances existing if any. Thus, in addition to proving the execution of the Will by examining the attesting witnesses, the propounder is also required to lead evidence to explain the surrounding suspicious circumstances, if any. Proof of execution of the Will would, inter alia, depend thereupon.

In the case at hand, the preparation of the Will at the instance of the testator, due execution of the same by the testator in presence of the attesting witnesses has not been shaken in any manner. Merely because of the fact that the writer of the will stated that it was written at Deed Writers Office and then executed in the house of the testator, the execution of the Will cannot be doubted in any manner. I may gainfully refer here the observation of learned Single Judge of the Gauhati High Court in the case of

Dilip Dutta Bhowmik & Ors. Vs. Mira Dutta Bhowmik & Ors. reported in : 2007 2 GLR (NOC) 17

wherein the learned Judge has observed:-

''Will'' as defined u/s 2A of the Indian Succession Act, means ''the legal declaration of the testator with respect to his property which he desires to be carried into effect after his death''. The essential characteristic of a Will, as is well know, is that it is a mere declaration of an intention so long as the testator is alive, a declaration that may be revoked or varied according to the variations in his intention, a disposition that requires the testator''s death for its consummation and is but ambulatory or without fixed effect until the happening of this event. The document is a Will if it contains specific words of which bequest to give into effect after the death of the testator if there are specific words of device. It is not permissible to ignore them. The validity of a Will in all its clauses is not a relevant consideration in ascertaining as to whether documents contains a testamentary disposition or is only a conferment of an authority to adopt.

The golden rule in interpreting a Will is to give effect to the testator''s intention as ascertained from the language, which he has used. The overriding duty of a Court of construction is to construe the language which the testator has in fact employed giving due weight to all the words and rejecting none to which a meaning is reasonably be assigned. The Court is entitled to put itself into the testator''s arm chair to construe a Will and to form an opinion apart from the decided cases and then to see whether those decision require any modification of that opinion and not to beckon by considering as to how far the Will in question resemble other Will upon which the decisions have been given. The proposition that the Will has to be read as a whole cannot be disputed. Whether there is a Will on the basis of the document, the probate court certainly will not proceed to consider as to whether or not the disposition of the property was good or bad. The primary duty of the probate court is to see first whether prima facie, the document constituted a Will. The first duty of the court is to take note of setting in which the Will was made by the testator. Needless to say that in construing a Will, all important considerations is the ascertainment and effectuation of the testamentary intention. The passions and prudence and even obsession of the testator have to be taken account to. His prudence against a near relative by itself is no ground for invalidating his Will even if such prudence is ill founded or unreasonable. The testator is at liberty to omit his relations or reasons that may be bad and this will not deprive him of his testamentary power.

The duty of a probate court is limited to the extent of certifying the Will as to whether it was duly executed by the testator or not. The Supreme Court in the case of

Ishwardeo Narain Singh V. Kamta Devi & Ors. reported in : AIR 1954 SC 280

, in Para. 2 of the judgment has observed that the Court of Probate is only concerned with the question as to whether the document put forward as the last Will and testament of the deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the probate Court.........

Same principle has been enunciated by the Supreme Court in the case of

Mrs. Hem Nolini Judah (since deceased) and after her legal representative Mrs. Marlean Wilkinson Vs. Isolyne Sarojabashini Bose & Ors. reported in : AIR 1962 SC 1471

.

In the case of

Gurdev Kaur & Ors. Vs. Kaki & Ors. reported in (2007) 1 SCC 546

the Supreme Court in Paras. 76, 77 and 78 held thus:-

The High Court also observed that "no father in normal circumstances would like to disinherit the daughters".

The High Court has clearly deviated from the settled principle of interpretation of the will. The court does not sit in appeal over the right or wrong of the testator''s decision. The court''s role is limited to examining whether the instrument propounded as the last will of the deceased is or is not that by the testator and whether it is the product of the free and sound disposing mind. It is only for the purpose of examining the authenticity or otherwise of the instrument propounded as the last will, that the court looks into the nature of the bequest.

The learned Single Judge of the High Court has not even properly appreciated the context of the circumstances. The contents of the will have to be appreciated in the context of his circumstances, and not vis-�-vis the rules for intestate succession. It is only for this limited purpose that the court examines the nature of bequest. The court does not substitute its own opinion for what was the testator''s will or intention as manifested from a reading of the written instrument. After all, a will is meant to be an expression of his desire and therefore, may result in disinheritance of some and grant to another. In the instant case, wife of the testator Bhagwan Kaur alone had lived with the deceased and only she had looked after him throughout his life. The other daughters were all happily married a long time ago and in their weddings the testator had spent huge amount of money. In his own words, he had spent more than what they would have got in their respective shares out of testator''s property.

In the case of

Krishna Kr. Birla Vs. Rajendra Singh Lodha & Ors. reported in (2008) 4 SCC 300

, the Supreme Court has observed thus:-

Part IX of the Succession Act, 1925 has nothing to do with the law of inheritance or succession which is otherwise governed by statutory laws or custom, as the case may be. Part IX makes detailed provisions as to how and in what manner an application for grant of probate is to be filed, considered and granted or refused. Rights and obligations of the parties as also the executors and administrators appointed by the court are laid down therein. Removal of the existing executors and administrators and appointment of subsequent executors are within the exclusive domain of the court.

The jurisdiction of the Probate Court is limited being confined only to consider the genuineness of the will. A question of title arising under the Act cannot be gone into in probate proceedings. The Probate Court does not decide any question of title or of the existence of the property itself. Construction of a will relating to the right, title and interest of any other person is beyond the domain of the Probate Court. A separate suit would be maintainable relating to questions of title. Filing of a suit is contemplated inter alia in a case where a question relating to the succession of an estate arises. If probate is granted, persons raising questions as to title, etc. have a remedy in terms of Section 263 of the 1925 Act for revocation of probate also.

In the case at hand, the testator did not deprive his wife, who ought to be the sole legal representative of his property after his death. He bequeathed .60 acres to his wife and her right to stay in the residence. It is the Will of the testator, which is to be honoured and the reasons given in the Will is to be considered with all surrounding facts and circumstances. O.P.W. 1 Kamal Priya Baishnab, the wife of the testator being an illiterate lady, was not supposed to identify the signature of testator. The Court below wrongly held that the Will was not referred to Kamal Priya for identifying signature of Prahlad Das Baishnab. Such an observation is uncalled for and without application of mind. Since Kamal Priya was an illiterate woman and put her LTI in her affidavit and in her deposition, I find no reason for forming an opinion that for not referring the Will to Kamal Priya, it should be doubted. No other suspicious circumstance brought on record by the respondents. In their cross-examination, it is otherwise admitted that Prahlad Das Baishnab executed the Will bequeathing property to Kamal Priya Baishnab, O.P.W. 1 and Patit Bandhu Das, O.P.W. 2 are concerned. The evidence of other opposite party witnesses is of no consequence in respect of the execution of the Will is concerned. Raising of some hypothetical issues to doubt the last desire of a person should not be attached with undue importance to frustrate a duly executed Will by a testator. In my considered opinion, Exbt. 1 i.e. Annexure-A to the probate petition has been essentially proved with all particulars that it was the last Will and testament executed by the testator Prahlad Das Baishnab and so, the propounder petitioner Biswajit Goswami is entitled to get certificate of probate of the Will, as prayed for.

Prahlad Das Baishnab, the testator, in his Will clearly clarified that since he and his wife Kamal Priya had no issue and had no other relative except Harekrishna Goswami (respondent O.P. No. 3), brother of Kamal Priya, said Harekrishna was brought with the family to reside there in his house premises and he donated .10 acres of land to Harekrishna and accordingly Harekrishna constructed his house and residing thereon. The appellant-petitioner Biswajit is the son of Harekrishna and they used to look after the testator in his life time. In the Will testator further clarified that after their death, Harekrishna, being the brother of his wife likely to the owner of all their properties and therefore he decided to execute the Will. The testator distributed the property to his wife, son of Harekrishna i.e. the petitioner and his cowboy Patit Bandhu.

It is not disputed that it was the last Will and testament of the testator Prahlad Das Baishnab.

That the testator was in sound health and mind at the time of execution of the Will in question has also not been disputed.

O.P. Nos. 1 and 2 (respondent Nos. 1 and 2) only contended that the testator did not execute any Will. Whereas, in their cross-examination they admitted that in the Will property was bequeathed to them also, which suggest that they know about execution of the Will. D.W. 7 clearly stated that he came to know from Kamal Priya (O.P. No. 1) that Prahlad Das Baishnab executed the Will during his life time.

The probate court, as it appears, taking into consideration, the oral submission that the testator having suffered fracture injury was not in a position to move and how he could go (sic) deed writers'' office to give instruction to the scribe of the Will (P.W. 2) and therefore doubted execution of the Will.

There is no evidence that testator visited deed writers'' office. It is in evidence that sometimes testator suffered fracture injury in his leg on fall from tree and at that time petitioner Biswajit arranged for his treatment. No evidence on record that at the time of execution of Will testator was suffering from fracture injury. The testator given the instruction to the scribe of the Will and he wrote it either sitting in deed writers office or in the house of testator is not at all a question of suspicion while writing itself and execution thereof is proved with cogent evidence. Section 63 of the Indian Succession Act reads as follows:-

Execution of unprivileged Wills. - Every testator, not being a soldier employed in an expedition or engaged in actual warfare, (or an airman so employed or engaged,) or a mariner at sea, shall execute his Will according to the following rules:-

(a) 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.

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.

(c) 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, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

Section 68 of the Evidence Act reads as follows:-

Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:

(Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied).

Exbt. 1, the Will, annexed as Annexure ''A'' to the petition for granting probate has been proved with clear, cogent and convincing evidence of P.Ws. 1, 2, 3 and 4. The scribe of the Will and attesting witness proved due execution by the testator.

P.W. 1, the propounded was not present at the time of execution of the Will. He stated that he came to know about the Will about one/one and half month before the death of the testator, when testator handed over him the Will with instruction to keep it in safe custody.

It is clearly proved that testator executed the Will in his house. P.Ws. 2, 3 and 4 unimpeachably stated that the testator was with sound health and mind and executed the Will in their presence.

Respondent O.Ps. failed to bring about any cogent suspicious circumstances regarding execution of the Will. If a reasonable suspicion is brought on record, no doubt, it is the duty of the propounder to remove the suspicion.

A circumstance would be "suspicious" when it is not normal or is not normally expected in normal situation. It means a real suspicion based on reason. Remote possibilities and suspicion of a vacillating mind is a danger to the administration of justice. Such suspicion cannot be the foundation for decision of a case. It is a settled proposition of law that minor discrepancies in the evidence is rather a guarantee of truth.

The Supreme Court in the case of

Smt. Indu Bala Bose & Ors. Vs. Manindra Chandra Bose & Anr. reported in (1982) 1 SCC 20

has observed that suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of testators mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testator''s mind was not free. If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account.

In Paras. 7 and 8 of the judgment, the Court observed:-

This Court has held that the mode of proving a Will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Successions Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator''s mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testator''s mind was not free. In such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations.

Needless to say that any and every circumstance is not a "suspicious" circumstance. A circumstance would be "suspicious" when it is not normal or is not normally expected in a normal situation or is not expected of a normal person.

In the case at hand the execution of the Will is proved with all material particulars. As already discussed above, the testator was with sound health and mind. The contents of the Will give a well reasoned disposition. The propounder was not even present at the time of execution of the Will. So, there was no reason at all for the probate court in not granting the certificate of probate. The order dated 17.12.2004 passed by the learned Additional District Judge in Misc. (Probate) 11 of 2001, therefore cannot sustain and is liable to be set aside and accordingly I do so.

The Court below is directed to issue certificate of probate to the petitioner propounder immediately.

Send back the L.C. record along with a copy of this judgment. Cost to be borne equally by the parties.