Debangsu Basak, J. - (1.) In this testamentary suit, the plaintiff seeks probate of the last Will and testament of the deceased Nurun Nahar dated April 11, 2007. The plaintiff is the executor of the Will dated April 11, 2007. The Will is of a Mahomedan lady. The testatrix had died on March 10, 2008 at her residence. The grant of the probate is contested by one of the sons of the deceased. In the affidavit in support of the caveat the defendant has alleged that, the bequest is void under Mahomedan Law. The Will is a manufactured document. It was obtained by undue influence and coercion. The execution of the Will is surrounded by suspicious circumstances. The testatrix did not execute the Will. The signature in Will is not of the testatrix.
(2.) The probate proceeding was set down as a contentious cause. The parties have adduced evidence through commission.
(3.) The issues that arise for consideration in the present testamentary suit and as framed by the Order dated November 22, 2016 are as follows:- 1. Was the last Will and Testament of Nurun Nahar, since deceased executed by her in accordance with law? 2. Was the said Will and Testament of Nurun Nahar a product of undue influence or coercion as alleged by the said caveator in paragraphs 2(b) of his affidavit in support of caveat affirmed by him on September 5, 2016? 3. Was the bequest made by the said Will and Testament of Nurun Nahar unnatural as alleged in paragraphs 2(g) and 2(h) of the said affidavit affirmed by the caveator in support of the caveat? 4. Is the Will forged and fabricated document? 5. Did the testatrix have the testamentary capacity to make and publish the Will? 6. Is not the will tainted with suspicious circumstances? 7. To what relief, if any, is the plaintiff entitled? Learned Advocate for the plaintiff submits that, the testatrix is a Mahomedan lady. Although the personal laws of a Mahomedan allows a Mahomedan lady to execute a Will in respect of 1/3rd of her estate, a will executed for the entirety of the estate is not void ab initio by reason of the bequest being for the entire estate. A probate Court is not concerned with the title of the testatrix. It is not concerned with which 1/3rd of the estate that the testatrix has bequeathed by her Will. He relies upon two passages on Mulla's Principles of Mahomedan Law 19th Edition, (Dhane Ali Mia & Ors. v. Sobhan Ali & Ors., 1978 AIR(Cal) 399), (Anarali Tarafdar v. Omar Ali & Ors., 1951 AIR(Cal) 7) and (Mirza Kurratulain Bahadur & Ors. v. Nawab Nuzhat-Ed-Dowla Abbas Hossein Khan, 1905 32 IndApp 244) in support of such contentions. He submits that, by conduct the heirs of a deceased Mahomedan can acquiesce in the bequest of the entirety of the estate of the deceased by a Will. He refers to the conduct of the defendant herein and the pleadings in G.A. No. 3023 of 2016. He relies upon (Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon & Ors., 2008 AIR(SC) 306) and (Ka Riverretta Diengdoh v. Ka Trially Sara Rymbai & Anr., 2013 AIR(Gau) 24) in support of such contentions.;