- (1.) This is an appeal against the judgment and order dated 14th August, 1985 granting probate of a testamentary instrument of one lady called Sirtarjee Thakurani, which is described to be the last will and testament.
(2.) The application for grant of probate was originally contested. By this instrument the lady has appointed the propounder as the sole executor as well as the sole beneficiary. This application was contested originally by the predecessor-in-interest and husband of Sulka Devi and minor daughter Kumari Parbati Devi of Late Shyam Narayan Singh. Hriday Narayan Singh and Shyam Narayan Singh both were brothers. On the death of said Shyam Narayan Singh, the appellants were substituted and they continued with the contest. In order to prove the execution and attestation of the said will as well as the testamentary capacity, the propounder examined three witnesses which included himself and one of the attesting witnesses and also the draftsman of the will; while the defendants examined one of the defendants, viz., defendant No. 1 and other witnesses. The learned Trial Judge while considering the pleading, has framed six issues, out of which, the learned Trial Judge dealt with issue Nos. 3 and 4 which concern execution, attestation as well as testamentary capacity. Issue Nos. 1 and 2 were hot pressed; so the learned Trial Judge did not give any answer and rightly so. The issue Nos. 5 and 6 are consequential in nature.
(3.) The learned Trial Judge on reading and analysis of the evidence came to the conclusion that the will was duly executed and attested and the same has been proved by the two witnesses, namely, P.W. 1 and 2. THE learned Trial Judge found that the lady had testamentary capacity and she was having sound health and this fact has been testified by P.W. 1,2 and also P.W.3. THE contradiction, as pointed put by the defendant at the time of the trial, was not accepted by the learned Trial Judge, nor did he find any suspicious circumstance surrounding execution, attestation of the will. THErefore, caveat was discharged, consequently probate was granted. Mr. Animesh Kanti Ghoshal, learned Counsel, appearing for the appellant contends that the learned Trial Judge has overlooked the serious contradiction, not only of the individual witnesses in their evidence, but the witnesses amongst themselves have contradicted in various ways and means. He submits that it will appear from the evidence of P.W.2, being the only attesting witness, that contents of the will was not explained and read over before she put her thumbimpression. He further contends that admittedly the lady was a Hindi knowing person and why the language of the will was in Bengali, was not explained. It is also an admitted position again that the lady could sign, but why she put thumb impression, that too on the top of the document was also not explained. He urges that there has been no explanation as to the existence of the draft. The alleged draftsman of the will has lied himself when he says that he used to look after the litigation and documentation of the said lady; whereas P.W.3 said that he used to look after everything and he did not know this gentleman. This leads to conclusion that a stranger has come forward to draw the document and this itself is suspicious circumstance and it is also the testimony of the P.W.3 and other witnesses that other persons who signed the document as attesting witness were not known to the propounder. Therefore, it shows that they are also strangers. Mbreover, he says that why the appellant was excluded and the propounder has got all the benefits; is also not explained with acceptable evidence. It was not known to any of the heirs or members of the family why the lady had executed the will. He further submits that the evidence as a whole, would definitely go to show that there exists a strong suspicious circumstance. Citing three decisions of the Supreme Court, he says what the Court should do before a testamentary instrument is accepted as being a genuine and valid one.;