Satyabrata Sinha, J. - (1.) The propounder of a Will has preferred this appeal being aggrieved by and dissatisfied with a judgment and decree dated 19th April, 1991 passed by Sri A. Hai, learned Additional District Judge, 3rd Court, Burdwan in O.S. Will Case No. 2 of 1986/210 of 1984.
(2.) The fact of the matter is not much in dispute. One Akhil Ch. Das executed the Will in question on 8th October, 1975 which was marked as' Exbt. 4. The said Akhil Chandra Das left behind two sons, viz. Susanta and Prosanta. The said Akhil Chandra Das was an employee of Government of India and at the relevant time he was passing a retired life. According to him in course of his employment he purchased some lands and raised-construction thereon in the benami of his wife Sudha Debi, since deceased. He died on 25.6.83. In his Will he stated: "My elder son Sushanta does not act according to my will. He has married without my consent and has been putting up separately with the wife. My second son Prosanta has been living with me and doing all sorts of my medical treatment, entire maintenance and.services and care. In order to settle the dispute least it arises between the two brothers over my property, I executing this Will to disclose that my second son Prosanta Kumar Das will receive the property mentioned in the schedule 'Kha' below. My elder son Sriman Sushanta Das will get no share nor will be able to raise any claim or demand of the said property. I appoint . Sri Pranab Kumar Sen, son of Sri Antim Chandra Sen of Bhatohala; Burdwan executor of this Will. He will take the Probate of this Will. This is my only and last Will. This Will come into force after my death. To this effect I execute this Will in the settled mind in good faith and of my own accord."
(3.) The said Wilt was scribed by one Saktipada Bhattacharya and attested by Sushil Kumar Bandopadhaya and Samarendra Prasad Ghosh (P.Ws. 2 and 3). From the said Will it would appear that the properties described in Schedule 'Ka' was not the subject matter of Will: whereas the property described in Schedule 'Kha' thereof was bequeathed in favour of his second son (testator). When the application. for grant of Probate was filed, the first respondent filed an objection thereto as a result whereof,, the-same was registered as a suit. The learned Trial Court keeping in view of the contentions raised in the respective pleadings framed the following issues: 1. Is the document' annexed with the petition a Will? 2. Is the alleged Will duly executed by the testator and attested by the witnesses? 3. Had the testator sound disposing mind and capacity at the time of alleged execution of the Will? 4. Is the petitioner entitled to get probate of the Will as applied for?;