- (1.) THE Judgment of the Court was as follows: This appeal is against the judgment and decree dated 22nd July, 1994 passed by the learned Single Judge, dismissing Testamentary Suit No.4 of 1989, inter alia holding, that there were suspicious circumstances surrounding the execution of the Will and that the conscience of the Court was not satisfied that the Will dated 24th May, 1988 had been executed by the testator of his own free will and volition.
(2.) THE above appeal was heard by a Division Bench comprising A.K. Banerjee and T.K. Giri, JJ. THE Division Bench, however, could not agree and the appeal has accordingly been referred by the Hon'ble Chief Justice to me, as third Judge. While A.K. Banerjee, J. is of the view that the appeal should be allowed and probate of the Will, as prayed for, be granted, T.K. Giri, J. is of the view that the appeal should be dismissed. The issues before the learned single Judge were whether the Will dated 24th May, 1988 was genuine, whether the Will had duly been executed and attested; whether the testator had testamentary capacity at the time of execution of the Will; whether the Will had been obtained by fraud, undue influence or coercion as alleged in support of the caveat and the relief to which the parties were entitled.
(3.) THE learned single Judge found that the Will was not genuine, in the sense that it was not a Will made by a man of his own free will, having sound state of mind, as the testator had no testamentary capacity at the time of execution of the Will. On the basis of the evidence on record, the learned Single Judge concluded that the execution of the Will was surrounded by suspicious circumstances and the propounder had not been able to clear the conscience of the Court that the Will was genuine, and made by the testator of his free will, in sound disposing state of mind.;