Patherya, J. - (1.) This appeal has been filed from the judgement dated 28th June, 2005. Dinanath Mondal is the testator, who died bachelor on 14.12.1999. He executed a Will on 17th June, 1998 and thereafter executed the first and the only Codicil on 26th March, 1999. The appellants before us are Tapashi and Prakash. Tapashi is the grand niece of Dinanath, the testator and Prakash is her husband. Prakash has filed this appeal in his capacity as a legatee and Tapashi has filed this appeal in her capacity as a grand niece of the testator Dinanath and who had a caveatable interest in the properties of the testator. It is because of this when an application was filed under Section 276 of the Indian Succession Act, the court below in his wisdom issued summons to Tapashi, the appellant no. 1, Tamashi, the grand niece of Dinanath (testator) and Prakash, the appellant no. 2. As they had filed a caveat and summons had been issued, the appellants filed an objection to the proceedings under Section 276 of the Indian Succession Act, 1925. On contest the said application filed under Section 276 of the 1925 Act was numbered as O.S. No. 3/02 on 25th July, 2000 and plaint filed. The plaintiffs were executrix and executor of the Will of the testator Dinanath, namely Bimala Baidya and Amit Baidya. The defendants were Tamashi, Anupam Naskar, Abhishek Baidya and Prakash Chandra Mondal. A written statement has also filed to the plaint by the defendant nos. 1 and 5, i.e. Tapashi and Prakash and the defendant no. 3 Anupam Naskar. For us Anupam Naskar, the defendant no. 3 for the moment is not important as he through his written statement supported the case of the Baidyas' plaintiffs and all that he wanted was that probate be granted in favour of the plaintiffs. Beside the defendant no. 3 no written statement was filed by either the defendant no. 2 or the defendant no. 4. It will not be out of place to mention that the plaintiff no. 1 was a caretaker of the testator and resided in the premises of Dinanath who officiated as a cook of the testator. Plaintiff no. 2 is the husband of the plaintiff no. 1 who works as a security guard. On the filing of the written statement the court below framed issues and these issues are important viz. issue nos. 2 and 3. The said for reference are set out hereinbelow :- I S S U E S 1. Is the Suit maintainable in Law? 2. Was Dinanath Mondal physically and mentally seriously ill for a long period before the death? 3. Have the Plaintiffs managed to procure the Will, and the Codicil after practising fraud upon Dinanath Mondal? 4. Are the Plaintiffs entitled to get relief, in the present from, as prayed for?
(2.) Thereafter having framed the issues, the evidence was taken on record and P.W. 1 was Anil Kumar Mukhopadhyay, who is the attesting witness in the subject Will of Dinanath. He in his evidence has categorically stated in chief that after execution of the Will he put his signature in the Will first and thereafter the other persons, viz. attesting witness, namely, one Sanatan Mondal, Samir Mondal and Santanu Mondal put their respective signatures as attesting witnesses in the subject Will. He has also said that it was in his presence that the testator put his signature and Dinanath was mentally and physically sound. While being cross-examined he contradicted himself by saying that except himself none else was present at Bhawani Bhawan, Alipore when the Will was executed by Dinanath. He voluntarily also said that he put his signature in the Will as attesting witness on that date at the locale, i.e. Bhawani Bhawan. He further contradicted himself by saying that after delivery of the Will from the Registry Office other attesting witnesses put their respective signatures in the said Will subsequently and it is this piece of evidence of P.W. 1 which we think is important to set it out hereinbelow :- "The Will was executed by Dinanath Mondal on 17.06.98 at Bhawani Bhawan, Alipore. At the time of execution of the Will at Bhawani Bhawan, Alipore, I was present there, as one of the attesting witnesses of the Will. Besides myself, none else was present there. Vol : I put my signature in the Will, as attesting witness on 17.06.98, at Bhawani Bhawan. After the delivery of the Will from the Register Office other attesting witnesses put their respective signatures in the said Will subsequently."
(3.) Later he also said that one Nimai Pramanick noted down the Will as scribe of the Will. As per drafting of Nimai Pramanick the Will was typed. He further contradicted himself by saying that the testator had several ailments for the last 20 years inspite thereof he was physically fit. Now this has been contradicted said in chief as he had said that Dinanath was mentally and physically sound. The value of his evidence is not required in respect of the Codicil but at present we are only interested with the Will dated 17th June, 1998 as the Will is the root issue before us and we need not address ourselves to the Codicil which was executed subsequent to the Will. In fact counsel for the appellants has stressed on four issues which he submits are the four pillars of a Will, therefore the four ingredients necessary in a Will is (i) preparation, (ii) execution, (iii) attestation (iv) registration and we do agree with what counsel for the appellants submit. He also submits that it is unbelievable that all these ingredients could have been executed on the same day that is on the date when the Will was executed, i.e. 17th June, 1998 at 12-45 p.m. The time 12-45 p.m. is of great importance because we find from the evidence of P.W. 3, another attesting witness, who is a bank employee, he put his signature on the Will in the Registry Office at Bhawani Bhawan, Alipore, which was between 12-30 to 1 p.m. This he has deposed in his cross-examination. The Will was presented for registration at 12.45 p.m., but prior thereto the Will was prepared, executed, attested and filed for registration at 12-45 p.m. on the same date. To do all this was not possible and was improbable. We know from the evidence of P.W. 2, the scribe was an advocate practicing in the Alipore Court for the last 10 years. He had drafted the Will of the testator and surprisingly it was drafted on the same date and this finds in his chief. He read over and explained the contents of the draft of the Will to the testator who directed that the Will be typed. P.W. 2 did not type the Will instead one Nimai Pramanick, typed the said draft Will. Nimai Pramanick was never examined nor was he summoned in fact we are not aware where the draft Will was made or typed and this draft Will was never produced before the court below. It is quite amazing how P.W. 2 could have recognized the signature of Nimai Pramanick and in the absence of Nimai Pramanick being produced or summoned we cannot say that he is dead and if he is alive, he should have been brought before the court below by none other than by the appellants which has not been done in this case. On a perusal of the crossexamination of P.W. 2 it appears that there are contradictions galore. In chief he deposes that he drafted the Will on 17th June, 1998, but in cross-examination he says that few days before the registration of the Will he drafted the Will now this in itself is a contradiction. He says that Dinanath was known to him and on oral instruction the Will was drafted, some documents were produced relating to his immovable assets but the draft copy of the Will was not with him and he narrated the contents of the draft copy from his memory. He admitted that there was no endorsement made in respect of the Will of Dinanath was read over and explained to the testator. He himself in cross-examination continued to say that not only Dinanath but P.W. 2, the typist i.e. Nimai, the witnesses and the advocate, i.e. Kajari Sen all put their signatures before the Registry Office, Bhawani Bhawan, Alipore. These contradictions exists, and have given arise to a suspicious circumstance and itself is a suspicious circumstance. On perusal of the Will it will appear that 12 properties have been given by the testator to the legatees and it is unbelievable that a man knows his properties in detail and this we find is very curious that in the Will, the testator has in a very detailed manner has enumerated vis-à-vis the 12 properties of Dinanath. P.W. 2 deposed that the Will was prepared, drafted, typed by Nimai, who was not produced in court and although he drafted the draft was also not produced. He further says that each of them signed and thereafter was placed for registration. Kajari Sen is the advocate, who identified the testator but the Registrar did not identify Kajari. He also has not said in what capacity she had signed. When we look at the Will many questions have arisen in our mind and a Will given by any testator must be very clear though it may not be verbose or need not be written in 16 pages as has happened in the subject Will. If a testator is desirous of making a Will he can do so in two sentences or in one sheet itself but 16 pages raises in itself a suspicious circumstance and the reason is that to draft a 16 pages Will it must be read over and explained to the testator, typed it, attested and thereafter executed. This in great detail set out in the Will is in itself a suspicious circumstance and more so when the original Will was submitted for registration at 12-45 p.m. Let us not forget that the testator on 17th June, 1998 was 68 years of age and it is difficult for a person as old as 68 years to remember all the properties that he had which are numerous in number in detail and not forgetting that P.W. 4 in his cross-examination has stated that he had spent Rs. 2,50,000/- in connection with the treatment of the testator. He had 11 receipts to show for the expenditure made by him but none of the 11 receipts were produced by P.W. 4 in fact D.W. 1 is none other but the appellant no. 1, who is the husband of Tapashi and the only reason to revert to him is that he is a beneficiary under the said Will of Dinanath. When the Will and the Codicil were both produced before him and shown to him he categorically said as follows :- "This is not the signature of Dinanath Mondal appearing on both the Will, and Codicil (Witness disputes with the signature of testator appearing on the Will and Codicil).";