TAPABRATA CHAKRABORTY, J. - (1.) THIS appeal is directed against the judgment and decree dated July 28, 2005 passed by the Learned Additional District Judge, Fast Track Court ­ VI at Alipore in Original Suit No.8/2005.
(2.) THE plaintiff being the respondent no.1 herein preferred an application for grant of probate in respect of the last Will and testament of the testatrix namely, Amiyabala Roy Chowdhury, executed on 14th September, 1979. It had been inter alia contended by the respondent no.1 herein that the testatrix bequeathed her properties by the testament dated 14th September, 1979 in favour of her two sons namely, Parimal Rai Chowdhury @ Sadhan Chowdhury being the respondent no.1 herein and Sri Arun Kumar Roy Chowdhury being the respondent no.2 herein after appointing them, as executors to her last Will and testament. It had been further contended that the respondent no.1 herein is the second son and the respondent no.2 herein is the youngest son of the testatrix and that the appellant nos. 1 and 2 are the other two sons of the testatrix who had not been given any share in the property left by their mother. It had been further contended by the respondent no.1 herein that her mother was physically fit and mentally alert and was in a disposing state of mind, at the time of execution of the Will and that she executed the Will after exercising her own volition, having fully understood the contents of the Will in question and that accordingly the respondent no.1 herein prayed for grant of probate. That the defendants being the appellant nos. 1 and 2 herein entered appearance in the said suit by filing written statement controverting the allegations made in the application for grant of probate and stating inter alia that their mother was not the owner of the property purported to be bequeathed under the alleged Will and that she was coerced by the respondent nos. 1 and 2 herein to do so and that taking advantage of the old age and by exercising undue influence their mother was coerced to put her signature on the alleged Will. It was further averred in the said written statement that the testatrix had no testamentary capacity and that the alleged Will was not at all attested according to the provisions of Law and that out of the six attesting witnesses, the signature of two witnesses were taken by the plaintiff/the respondent no.1 herein upon false representation that the instrument was a deed of family settlement and that the said two attesting witnesses did not incorporate their signatures in the presence of the testatrix and the other witnesses. It was further averred that the plaintiff and the defendant no.3 being the respondent nos. 1 and 2 herein had acted in collusion and conspiracy with Jibon Krishna Das, Narayan Chandra Das and others. It was further averred that the defendants were very much loved by their mother and that she had never any intention to deprive them of the proportionate share in the property in question.
(3.) THAT the plaintiff deposed as PW1 and one of the attesting witnesses, namely, Sri Anilendra Nath Roy Chowdhury deposed as PW2.;