ASIT KUMAR BISI, J. - (1.)This suit arises out of an application for grant of probate of the Will dated 25th February, 1972 executed by Tara Sundari Ghosh in favour of the propounder Rajendra Nath Ghosh (hereinafter referred to as the plaintiff)- Tara Sundari Ghosh (hereinafter referred to as the testatrix) was suddenly found missing on and from 18th March, 1977 from her residence at 16, Rajendra Lai Street, P.S. Narikeldanga, Calcutta-6. The plaintiff is her only son and defendant No. 1 Smt. Sadhana Bala Banerjee is her only daughter. As per the case of the plaintiff he spared no efforts and left no stone unturned for finding out his missing mother and inspite of all his searches he failed to find out his mother. The testatrix has not been heard of for seven years or more either by him or by those who would naturally have heard of her if she was alive and she is presumed to be dead in the eye of the law. During her lifetime the testatrix made and published her last Will and Testament on 25th February, 1972 whereby she bequeathed her movable and immovable properties to the plaintiff and appointed the latter as executor of the said Will. The plaintiff is entitled to obtain probate of the Will dated 25th February, 1972 left by the testatrix.
(2.)Defendant No. 1 Sadhana Bala Banerjee has contested the suit and resisted the application for grant of probate filed by the plaintiff by filing the written statement wherein it has been averred inter alia that Tara Sundari Ghosh never executed any Will on 25.2.72 or on any date. It has been denied by defendant No. 1 that the alleged Will was made by the testatrix herself and that after hearing the contents of the alleged Will or realising or appreciating meaning, purport or implication of the alleged Will the testatrix executed the alleged Will in presence of the alleged witnesses, ft is also denied that the alleged Will was registered on execution by the testatrix. It has been further averred by defendant No. 1 ther written statement that the alleged Will is not the Will of the alleged testatrix and the same is forged, fraudulent and created by the plaintiff in collusion with attesting witnesses in absence of the testatrix. It has been denied by defendant No. 1 that the alleged testatrix published the Will or appointed the plaintiff as executor. Further case of defendant No. 1 as made out in the written statement is that the testatrix had no physical or mental capacity to execute the Will nor she gave her L.T.I, or signature therein and as such there cannot be probate of the alleged Will which is an unnatural one. It has also been alleged by defendant No. 1 in the written statement that due to physical and mental torture perpetrated by the plaintiff on the alleged testatrix she lost complete balance of mind and left the house. The plaintiff caused her disappearance and/or death.
(3.)Defendant No. 2 Sri Bomkesh Ghosh has not come to the contest the suit though he has filed the written statement wherein he has alleged inter alia that he is an unnecessary party in this proceeding as he is neither a legatee nor an heir in respect of the property left by the deceased.