Satyabrata Sinha, J. - (1.) This first appeal is at the instance of defendant No. 1 and is directed against the judgment and decree dated December 7, 1989 passed by the Additional District Judge, 6th Court, Alipore in O.S. No. 8 of 1987 thereby granting probate in favour of respondent No. 1.
(2.) The fact giving rise to the instant first appeal is as follows : One Jiban Krishna Tapaswi died on February 22, 1984 leaving his wife Kamala, two sons, Rabin and Sidhartha and three daughters viz. Asha, Gopa and Deepali. It may be mentioned here that Rabin and Asha were born of the first wife of testator who pre-deceased him. Sidhartha, Gopa and Deepali are the children through Kamala, the second wife. The testator gave marriage of all the three daughters but unfortunately Deepali, the youngest daughter became a divorcee and came back to the family of testator. She is a teacher in a local school. The testator executed a registered Will dated July 16, 1983 whereby he appointed the respondent No. 1, who happens to be one of his sons- in-law viz. husband of Gopa, as executor. By the said Will the testator divided his entire immoveable property into four lots. Lot-A consists of 10 kottahs 13 chittaks of bastu land with a house standing thereon wherein the testator with his second wife, divorcee daughter and younger son used to reside. The said lot also consists of a Doba measuring 6 kottahs 5 chittaks. This lot has been given to the second wife viz. Kamala absolutely. Lot-B consists of 3 kottahs of bastu land and the same has been absolutely given to Deepali, the divorcee daughter. Lot-C consists of 2 kottahs I chittak and 15 sq. ft. of bastu land and also a Doba measuring 5 kottahs 13 chittaks 8 sq. ft. This lot although has been given exclusively to Sidhartha, there is however a stipulation in the Will that so far the Doba measuring 5 kottahs 13 chittaks and 8 sq. ft. is concerned, Sidhartha will sell the same and out of sale proceeds, he will give Rs. 2,000/- to Asha, Rs. 2,000/- to Gopa and Rs. 5,000/- to Rabin. It was further conditioned that the balance sale proceeds will be equally divided among Sidhartha, Deepali and Kamala. Lot-D consists of 2 kottahs 10 chittaks and 28 sq. ft. of bastu land whereupon Rabin with his own money has constructed a house wherein he is residing with his family. This lot-D has been exclusively allotted to Rabin. The respondent No. 1 applied before the learned District Delegate for grant of probate of the aforesaid registered Will dated July 16, 1983. The appellant, the elder son having resisted the said application, the same became contentious and, thus, the aforesaid suit viz. O.S. No. 8 of 1987 was registered.
(3.) The appellant contested the aforesaid suit by filing written statement thereby denying the material allegations made in the application for grant of probate and his contention was, inter alia, as follows : (a) The purported Will was not at all a Will. It could at best be described as a power of attorney and it lapsed with the death of testator. (b) The testator died at the age of 82 years. The defendant No. 6 viz. Kamala was a greedy woman and was being guided by Deepali, the divorcee daughter. The testator let out the tank in Dag No. 89-86 to Rabin and was receiving rent from him and was also receiving pecuniary help from his from time to time. (c) the testator due to his old age and due to sufferings from serious diseases viz. 'Bronchitis, Asthama' etc. during the last days of his life became quite invalid and infirm and gradually lost his memory and understanding. Taking advantage of the situation, the defendant No. 6 with the help of plaintiff and her son and daughters set up the said Will in collusion with the people of her camp for illegal gain without giving the testator any opportunity to understand the contents of the alleged Will and without explaining the contents thereof. (d) The alleged Will was not the conscious act of the testator and the same was created under suspicious circumstances and also under undue influence, fraud and mis-representation. (e) The alleged Will was not legally executed and attested and at that point of time the testator had no testamentory capacity. ;