Form No.(J2) IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE Present:
The Hon'ble Justice [ENTITY] T.S No. 3 of 2014 Mr. [ENTITY] Plaintiff Versus Mrs. [ENTITY] & Anr.
Defendants For Plaintiff: Mr. [ENTITY], Senior Advocate with Mr. [ENTITY] & Mr. [ENTITY], Advs.
For Defendants: Mr. [ENTITY] with Ms. [ENTITY], Advocates Hearing concluded on: 21st December, 2016.
Judgement delivered on: 23rd December, 2016.
[ENTITY],J. One [ENTITY] executed his last will and testament on September 24, 1976 in respect of his estate and properties and appointed his son and wife as joint executor and executrix respectively in respect of the said will. [ENTITY] died on May 12, 2011 leaving behind his wife - [ENTITY], son - [ENTITY], daughter - [ENTITY] and daughter - [ENTITY], as his legal heirs. [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY] are the attesting witnesses of the said will dated September 24, 1976. The deceased left the properties situated within as well as outside jurisdiction of the High Court at Calcutta. The wife, [ENTITY] and the son, [ENTITY], have prayed for grant of probate of the said will dated September 24, 1976. [ENTITY] - wife of the deceased - [ENTITY], died during pendency of the probate proceedings and her name was removed as executrix of the will from the record. The citation was served on two daughters, who entered appearance and filed separate affidavits in support of the caveats and thereby the probate proceeding was converted to Testamentary Suit.
2. The defendant [ENTITY] challenged the execution and attestation of the will dated September 24, 1976 by filing the affidavit in support of the caveat. It appears from the said affidavit that she was married to one [ENTITY] in the year 1971 and her eldest daughter was born in the year 1973. It is contended that the testator of the will raised objection against marriage of [ENTITY] with [ENTITY]. The further contention made out in the affidavit is that the relation between the father and the daughter became normal in the year 1974 and the daughter, [ENTITY] had unrestricted entry into the house of her parents from the year 1974 onwards. This defendant attended and participated in all social and religious functions in the family of her parents from the year 1974 onwards. The contention of the defendant is that her father could not have executed the will out of his own volition. The manner of disposition of the property by the testator indicates that the testator was unduly influenced by the son of the testator who happens to be the beneficiary of the will. It is also contended that full assets were not disclosed by the propounder of the will in order to lower down the valuation of the property of the testator. The defendant has specifically stated in the affidavit that the testator had no sound disposing mind and testamentary capacity to execute the will on September 24, 1976. The specific contention of the defendant is that the plaintiff dominated the will of the testator and influenced him to dispose of his estate and property in favour of the son of the testator. The defendant [ENTITY] has prayed for dismissal of the suit.
3. The defendant [ENTITY] has also challenged the execution and attestation of the will dated September 24, 1976 by filing an affidavit sworn by the husband of the said defendant. The defendant has contended that the testator was alive till the age of 91 years and as such there was no reason for the testator to make arrangement for disposition of his estate and property at the age of 55 years when the will is alleged to have been executed. It is further contended that the testator suffered from various medical complications and was mentally indisposed to comprehend the effect of the execution of the will. It is alleged that the son of the testator being the beneficiary of the will gave constant provocation to the testator of the will to dispose of the property in his favour. The signature of the testator on the will dated September 24, 1976 is denied by this defendant. It is further alleged that the plaintiff manipulated the decision of the testator and compelled him to execute and register the will when the testator was not aware of the contents of the said will. The specific allegation made by the defendant is that the will dated September 24, 1976 is vitiated by false personification. This defendant has prayed for dismissal of the suit.
4. On the above pleadings the Court has framed the following issues for proper and effective adjudication of the disputes involved in the suit -
i) Is the will dated September 24, 1976 duly executed and attested as per provision of [SECTION] of the [ACT]?
ii) Is the will dated September 24, 1976 vitiated by suspicious circumstances, undue influence and false personification?
iii) Had the testator, [ENTITY] testamentary capacity and sound disposing mind at the time of executing the will on Sept 24, 1976?
iv) Is the plaintiff entitled to get the probate of the will dated September 24, 1976?
v) Is the plaintiff entitled to get any other reliefs?
5. Issue No. (i) -The defendants have specifically alleged that the will dated September 24, 1976 was not executed by the testator, [ENTITY]. Both the defendants have specifically stated in evidence that they have doubt about the genuineness of the signature of [ENTITY] appearing on the will dated September 24, 1976. Accordingly, the onus lies on the propounder of the will to prove execution and attestation of the will dated September 24, 1976. It is elicited from the evidence of the propounder, [ENTITY] that all attesting witnesses of the will are dead except [ENTITY]. Similarly, the witness [ENTITY] has stated in reply to Q.65 that all the attesting witnesses of the will are dead except himself. This witness [ENTITY] has proved the execution and attestation of the Will dated September 24, 1976 and the same is marked as Ext. A. This witness has stated in reply to Q.17 how he was approached by the testator of the Will on the evening prior to the date of execution of the Will and how this witness saw the other attesting witnesses including two brothers-in-law of the testator signing on the Will at the time of execution of the Will. This witness has categorically stated in evidence that the solicitor [ENTITY] was also present at the time of execution of the Will and he also signed on the said Will.
Nothing transpires from the cross-examination to disbelieve the oral testimony of the witness [ENTITY] who has proved the execution and attestation of the Will marked as Ext. A.
6. The proposition of law laid down by the Supreme Court in "[PRECEDENT] is that the mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by [SECTION] of the [ACT]. It is also held by the Supreme Court in the said report that the onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Similarly, the Division Bench of our High Court reiterated in "Aloke Kumar Aich V. Ashoke Kumar Aich"
reported in AIR 1982 Calcutta 599 that the mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirements of attestation prescribed in case of a Will by [SECTION] of the [ACT]. It is further held by the Division Bench of our High Court that the onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. In the instant case I would like to evaluate the evidence on suspicious circumstances and testamentary capacity of the testator in the appropriate place of the judgement. With regard to the execution and attestation of the Will the duty of the propounder is discharged by proving the Will dated September 24, 1976 by examining the witness [ENTITY] who is the only surviving attesting witness of the Will. The defendants who raised doubt about the genuineness of the signature of the testator on the Will (Ext. A), could not assign any reason for the said doubt. Nor could the defendants produce any document before this Court bearing the admitted signature of [ENTITY] for comparison of the signature of [ENTITY] appearing on the Will marked Ext. A with the admitted signature of [ENTITY] appearing on any other document. In the absence of production of any such document by the defendants I do not find any merit in raising doubt by the defendants about signature of [ENTITY] appearing on the Will marked Ext. A. Since I have given credence to the oral testimony of the witness [ENTITY] who has given elaborate evidence to prove execution and attestation of the said Will (Ext. A), I am of the view that the propounder of the Will is able to prove execution and attestation of the Will marked Ext. A as per provision of [SECTION] of the [ACT]. This issue is, thus, decided in favour of the plaintiff.
7. Issues No. (ii) and (iii): Both these issues are inter-related and as such these issues are taken up together for convenience of discussion. The specific case made out by the defendants in the affidavits is that the propounder of the Will manipulated the decision of the testator and got the Will executed and registered by the testator at the young age of 55/56 years. The further contention of the defendants to show suspicious circumstances surrounding the execution of the Will is that the testator made inequitable disposition of the property in the Will and deprived the eldest daughter of the entire estate and property, in spite of restoration of normal relation between the eldest daughter and the father from 1974 onwards. Mr. [ENTITY], learned Counsel for the defendants, contends that the evidence adduced by the plaintiff with regard to sound disposing mind of the testator cannot be considered by the Court as the said evidence is beyond the pleading of the plaintiff. I fully agree with the submission made by Mr.[ENTITY] and as such I am not inclined to consider the evidence adduced by the plaintiff with regard to sound disposing mind of the testator at the time of execution of the Will marked Ext. A. However, the allegation of undue influence and false personification made by the defendants must be pleaded with all particulars as per provisions of [SECTION] of the [ACT]. That apart, the onus lies on the defendants to prove the allegation of undue influence and false personification, as they are opposing the probate of the Will. There is no iota of evidence adduced by the defendants to establish that the propounder of the Will manipulated the decision of the testator at the time of execution of the Will. Nor is there any shred of evidence to prove that there was false personification of the testator of the Will at the time of registration of the Will marked Ext. A. The logical inference of my above observation is that the defendants have miserably failed to prove the allegation of undue influence and false personification. The natural corollary is that the Will marked Ext. A is not vitiated by undue influence and false personification.
8. Now, the question for consideration of the Court is whether the testator had sound disposing mind and testamentary capacity at the time of execution of the Will dated September 24, 1974 and whether the said Will is vitiated by suspicious circumstances. In "[PRECEDENT] the Supreme Court has laid down in paragraph 9 how the onus of proof shifts on the propounder to satisfy the Court about the sound disposing capacity of the testator in order to dispel suspicious circumstances. It is pertinent to quote some portion of paragraph 9 of the said judgment, which is as follows :- "9. It is well settled that one who propounds a Will must establish the competence of the testator to make the Will at the time when it was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the Will in the manner contemplated by law. The contestant opposing the Will may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the Will and in sound disposing capacity executed the same "
9. Similarly, in "Pentakota Satyanarayana v. Pentacota Seetharatnam"
reported in (2005)8 SCC 67, the Supreme Court has held in paragraph 24 when the onus of proof shifts on the propounder to establish the sound disposing capacity of the testator at the time of execution of the Will. I would like to quote relevant portion of paragraph 24 of the judgment, which is as follows :-
"24. In our opinion, the burden of proof to prove the Will has been duly and satisfactorily discharged by the appellants. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the Will in the manner contemplated by law. In such circumstances, the onus shifts on the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the Will and in sound disposing capacity executed the same."
10. In view of the above proposition of law laid down by the Supreme Court, the onus lies on the propounder of the Will to establish that the testator [ENTITY] had sound disposing mind at the time of execution of the Will marked Ext.A, in spite of proving execution and attestation of the said Will as per provisions of [SECTION] of the [ACT]. Before embarking upon the exercise to scan the evidence on record to decide whether the testator [ENTITY] had sound disposing mind at the time of execution of the Will marked Ext.A, it will be wise and prudent on my part to discuss the tests laid down by the court for assessing sound disposing mind of the testator.
11. In "[PRECEDENT], it is held by the Division Bench of our High Court in page 867 of the judgment that to establish disposing mind of the testator it must be proved that "he must be able to understand his position, he must be able to appreciate his property, to form a judgment with respect to the parties whom he chose to benefit by it after death and if he has capacity for that, it suffices." The disposing mind of the testator in order to execute a valid will can be ascertained, as observed in page 867 of the said judgement, when "one must have sufficient active memory to recollect his family and his property and to form a rational judgement in regard to the deserts of the one and the disposition of the other with reference to such deserts."
12. The test of sound disposing is laid down by the Division Bench of our High Court in "[PRECEDENT], wherein it is held in paragraphs 16 to 19 as follows :-
"16-19 The test of a sound disposing mind is in law a workable test. It means in plain language an appreciation of the fact that the man is making a Will, and appreciation of the contents of that Will and an appreciation of the nature of disposition that he is making having regard to the claims of affection and family relationship and claims of the society or community to which he belongs "
13. Let us now scan the evidence on record to find out whether the plaintiff has been able to establish by cogent evidence that the testator [ENTITY] had sound disposing mind at the time of execution of the Will dated September 24, 1976. There is no dispute that the testator [ENTITY] died on May 12, 2011 leaving behind his wife - [ENTITY], son - [ENTITY], daughter - [ENTITY] and daughter - [ENTITY] as legal heirs. It is also not disputed that [ENTITY] died on September 24, 2013 during pendency of this suit. The recitals of the Will dated September 24, 1976 (Ext.A) indicate that the testator made provision for food, clothing, medical treatment and accommodation of his wife and pocket money to the tune of Rs. 101/- per month and also made provision for providing Rs. 500/- in every year to facilitate pilgrimage of the wife. The recitals of the Will (Ext.A) further indicate that the testator spent large sum of money for the marriage of his youngest daughter [ENTITY] and also made provision for payment of Rs.5000/- to her as a token of his love and affection for the said daughter. The testator also made provision in the Will for [ENTITY] of the deities and payment of tax for the estate and properties and bequeathed the remaining movable and immovable properties to his son [ENTITY], who was appointed as joint executor of the Will along with the wife of the testator. What transpires from the recitals of the Will (marked Ext. A) is that the testator did not bequeath any property to the eldest daughter [ENTITY] for which elaborate reasons are assigned by the testator in the Will itself. It appears from the recitals of the Will (marked Ext. A) that the eldest daughter [ENTITY] severed all connections with the parents and married a person of her choice, in spite of protest by the parents. According to the testator, the conduct of the eldest daughter brought disgrace to the family and lowered down the prestige of the family and as such, she was deprived of the property of the testator.
14. The consistent evidence of both the daughters and the attesting witness [ENTITY] is that the testator [ENTITY] was physically fit at the time of execution of the Will in the year 1976. The eldest daughter [ENTITY] has stated in reply to question No.35 that her father was physically fit at the time of execution of the Will. This witness has also stated in reply to question No. 139 that her father used to look after his properties on his own, and the propounder of the Will was unemployed at the relevant point of time. Similarly, the youngest daughter [ENTITY] has stated in reply to question No.11 that her father was physically fit in 1976. She has further stated in reply to question No. 14 that her father died at the age of 92 years. This witness has tried to establish by giving reply to question Nos. 45 to 50 that her father [ENTITY] was suffering from blood sugar and neurological problems from the age of 70/71 years. By way of mathematical calculation from the date of death of the testator, I can infer that the testator was about 55/56 years of age at the time of execution of the Will in 1976. Even if I accept the evidence of [ENTITY] that the testator was suffering from blood sugar and neurological problems from the age of 70/71 years, there is nothing on record to indicate that the testator was not mentally fit at the time of execution of the Will in 1976 when he was 55/56 years old. It is relevant to point out that the Will in question (Ext. A) is a registered document and two brothers-in-law of the testator signed on the said Will as attesting witnesses. There is nothing on record to indicate that any stranger signed on the said Will as attesting witness. The attesting witness [ENTITY] who deposed before the Court to prove the execution and attestation of the Will was a trusted employee of the testator, who used to deposit the cheques in the bank and who used to maintain accounts for collection of rent from the tenants. Moreover, the testator was alive for about forty years after execution of the Will on September 24, 1976 (Ext. A). In view of my above findings I would like to hold that it is established from the evidence on record that the testator had sound disposing mind at the time of execution of the will marked Ext.-A.
15. Now, the question for consideration of the Court is whether there were valid reasons for depriving the eldest daughter [ENTITY] of the property of the testator. It is the consistent evidence of the witness - [ENTITY] that her relation with her father became normal from the year 1974 onwards and she participated in all social and religious functions in the family of her parents from the you 1974 onwards. It transpires from the evidence of [ENTITY] that her marriage was fixed with one [ENTITY] by way of negotiation of her father and engagement ceremony was also done in this regard. On close scrutiny of the entire evidence of [ENTITY] it appears that she left the house of her parents after engagement ceremony with [ENTITY] in order to marry [ENTITY] who was a friend of her elder brother. It is elicited from the evidence of this witness that her elder daughter was born on September 6, 1973 and younger daughter was born on May 6, 1981. [ENTITY] has candidly admitted during her cross- examination that she did not invite her parents in Annaprashan ceremony of both the daughters. The fact of leaving the house of her parents by the witness [ENTITY] on May 21, 1971 is not only admitted by her, but also established from the letter written by her to her parents at the time of leaving the house (Ext. G). On an analysis of the evidence given by this witness [ENTITY] in reply to question No.79 and 80, I find that she visited the house of her parents for the first time in the year 1975 when her third paternal uncle invited her for the marriage of the second daughter of the said uncle. The further analysis of the evidence of the witness [ENTITY] indicates that she might have attended marriage ceremony of her elder brother in the year 1978 and she might have attended other social and religious functions in the family of her parents from the year 1978 onwards, but it is not established from her evidence that her relation with her parents became normal before the execution of the Will in the year 1976. It appears from the document (marked Ext. H) that this witness [ENTITY] accepted Rs.50,000/- from her father on July 20, 2004. The plea taken by the witness is that she signed on a blank sheet of stamp paper at the instance of her father and the propounder of the Will on whom she reposed faith. No explanation is forthcoming before the Court why the witness [ENTITY] did not disclose in the affidavit in support of the caveat that she was forced to sign on a blank stamp paper at the instance of the propounder of the Will or the testator of the Will. In view of non-disclosure of such facts in the affidavit in support of the caveat, I am unable to give any credence to the oral testimony of [ENTITY] to the effect that she signed on a blank stamp paper on July 20, 2004 at the instance of the propounder of the Will and the testator of the Will. The witness [ENTITY] has miserably failed to prove by adducing cogent evidence that her relationship with her parents became normal before execution of the Will in the year 1976. What has been established from the evidence on record is that this witness [ENTITY] left the house of her parents on May 21, 1971 in order to marry [ENTITY] against the will of the parents and after completion of engagement ceremony of this witness with one [ENTITY] which must have caused annoyance and embarrassment to the father who happens to be testator of the Will (marked Ext.A). Accordingly, the reasons assigned by the testator of the Will for depriving the eldest daughter [ENTITY] of the property are justified and acceptable to the Court. The manner of disposition of the property reflected in the recitals of the Will (Ext. A) and the evidence on record as discussed above go to establish that the testator [ENTITY] had sound disposing mind and full testamentary capacity to execute the Will dated September 24, 1976 marked Ext. A.
16. Mr. [ENTITY], learned Counsel representing the defendants submits that inequitable disposition of the property by the testator of the Will may be considered as one of the suspicious circumstances surrounding the execution of the Will. He has also pointed out the some other facts in order to impress upon the Court that there are suspicious circumstances surrounding the execution of the Will, which are as follows :- (i) The testator executed the Will at the age of 51/56 years which is not natural;
(ii) The signature of the solicitor appearing on the Will as attesting witness but not as draftsman of the said Will is also not natural; (iii) The propounder of the Will suppressed disclosure of many valuable movable properties and reduced the valuation of the property to establish that there is equitable disposition of the property, which is not natural; (iv) Lack of knowledge on the part of the propounder of the Will about the identity of the person who identified the testator before the Sub-Registrar at the time of registration of the Will, is also unnatural. On the other hand, Mr. [ENTITY], learned Senior Counsel representing the plaintiff, contends that the above circumstances pointed out on behalf of the defendants cannot be considered as suspicious circumstances by any stretch of imagination. By referring to the decisions of the Supreme Court reported in [PRECEDENT] and [CASE NUMBER], Mr. [ENTITY] contends that inequitable disposition of property by the testator cannot be construed as suspicious circumstances.
17. With regard to the submission of Mr. [ENTITY] that it is unnatural for the testator to execute the Will at the age of 51/56 years has no merit. The person who is executing the Will at the age of 55/56 years does not know whether he will live up to 70 years or 80 years or 90 years of age. This cannot be construed as suspicious circumstance as contended on behalf of the defendants. With regard to signing on the Will by the solicitor [ENTITY] as attesting witness, I am of the view that there is no need to disclose the name of the draftsman to establish that the present Will is genuine. With regard to the submission of non-disclosure of valuable assets and reduction of valuation of the property described in the Will, I am unable to find any logic how the reduction of valuation of the property can cast aspersion on the genuineness of the Will marked Exhibit A, particularly when the defendants have failed to disclose the quantum of movable property for which they have given evidence in the Court. With regard to submission of Mr. [ENTITY] that the propounder of the Will should have knowledge about the identity of the person who identified the testator before the Sub-Registrar at the time of registration of the Will has also no merit, particularly when the propounder of the Will had no knowledge about the execution of the Will and he was not present at the time of registration of the Will marked Exhibit A. With regard to inequitable disposition of the property by the testator of the Will, the Court can consider the intrinsic evidence reflected in the recitals of the Will. I have already pointed out from the recitals of the Will how the testator has made provision for the wife and the youngest daughter and why the eldest daughter is deprived of the property and estate of the deceased testator [ENTITY].
18. In "[PRECEDENT]"
reported in [PRECEDENT] cited by Mr. [ENTITY], it is held by the Supreme Court that exclusion of natural heirs or making provision for lesser share to the natural heirs by itself without anything more, cannot be held to be a suspicious circumstance especially in a case whether the bequest has been made in favour of an offspring. Similarly, in "[PRECEDENT] cited by Mr. [ENTITY], the Supreme Court has held that deprivation of a due share to the natural heirs itself is not a factor which would lead to the conclusion that there exist suspicious circumstances surrounding execution of the Will. By applying the above test laid down by the Supreme Court in "[PRECEDENT]" (Supra) and "[PRECEDENT]"
(Supra) in the facts of the present case, I can safely hold that inequitable disposition of property by the testator under the Will marked Exhibit A cannot be construed as suspicious circumstance, particularly when the testator has made reasonable provision for the wife and the youngest daughter and assigned reasons for depriving the eldest daughter of the estate and property of the testator.
19. Now I would like to deal with the decisions cited by Mr. [ENTITY] in support of his contention that the propounder has failed to prove the Will as a genuine document on the face of suspicious circumstances surrounding the execution of the Will. In "[PRECEDENT], the Supreme Court has laid down in paragraph 20 what are the duties of the Court in cases in which the execution of the Will is surrounded by suspicious circumstances. It is held by the Supreme Court in the said paragraph 20 of the report that "in such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator". I have already observed that the testator had sound disposing mind at the time of execution of the Will in 1976 as he was hale and hearty at the age of 55/56 years at the time of execution of the Will and he used to look after his own property. The manner of disposition of the property reflected in the recitals of the Will marked Exhibit A also indicates that the testator had sound disposing mind at the time of execution of the Will. The onus is, thus, discharged by the propounder of the Will by adducing prima facie evidence proving the competence of the testator and the execution of the Will in the manner contemplated by [SECTION] of the [ACT] and thereby the onus shifts on the two daughters opposing the probate of the Will to bring on record prima facie evidence from which the Court can infer about the suspicious circumstances. The two daughters have miserably failed to bring on record the evidence about suspicious circumstances surrounding the execution of the Will marked Exhibit A. Naturally, the facts of the present case are clearly distinguishable from the facts of "[PRECEDENT]" (Supra) and as such the ratio of the said decision cannot be made applicable in the facts of the present case.
20. In "[PRECEDENT], the question which arose for consideration before the Supreme Court is whether the evidence led by the propounder of the Will was sufficient to satisfy the conscience of the Court that the Will was duly executed by the testator. It is held by the Supreme Court in the said report that the defendant failed to discharge the heavy onus of explaining the suspicious circumstances surrounding the execution of the Will, viz. who drafted the Will, who typed the Will, the inclusion of strangers as attesting witnesses to the Will and contradiction in their statements about execution of the documents and non-examination of the executor of the Will. In the instant case the solicitor signed on the Will as attesting witness and there is no stranger who signed on the Will as attesting witness. Nor do I find any contradiction in the evidence adduced by the propounder of the Will and the attesting witness of the Will. Out of two executor and executrix of the Will, the executrix i.e. the wife of the testator is dead and the other executor of the Will being the son of the testator is examined and he has adduced evidence to remove the alleged suspicious circumstances by establishing the fact that the testator was quite fit at the time of execution of the Will at the age of 55/56 years. So the facts of the present case are also distinguishable from the facts of "[PRECEDENT]" (Supra) and as such the ratio of the said report is not applicable in the facts of the present case.
21. In "[PRECEDENT], the execution of the Will became impossible both in respect of the properties described in Part A and Part B of the Will and the Will was surrounded by suspicious circumstances. In this report the appendices to the Will were not signed by the attesting witnesses and the same were not proved before the Court. The Supreme Court held that the propounder of the Will cannot be granted probate as the Will is incomplete and surrounded by suspicious circumstances. I have already pointed out that there are no suspicious circumstances surrounding execution of the Will marked Exhibit A and as such the facts of the present case are clearly distinguishable from the facts of "[PRECEDENT]) and as such the ratio of the said report is not applicable in the facts of the present case.
22. In view of my above findings I can safely hold that the testator [ENTITY] had testamentary capacity and sound disposing mind at the time of execution of the Will dated September 24, 1976 (Exhibit A) and the said Will is not vitiated by undue influence, false personification or suspicious circumstances as alleged on behalf of the defendants. Issue no.
(ii) is, thus, decided in the negative and issue no. (iii) is, thus, decided in the affirmative.
23. Issues No. (iv) and (v) : Both these issues are inter-connected and as such these are taken up together for convenience and brevity of discussion. I have already observed during discussion of issue no. (i) that the Will dated September 24, 1976 was duly executed and attested as per provision of [SECTION] of the [ACT]. It has been held by me during discussion of issues no. (ii) & (iii) that the Will dated September 24, 1976 marked Ext. A is not vitiated by undue influence and false personification. I have also held during discussion of issues no. (ii) & (iii) that the testator [ENTITY] had testamentary capacity and sound disposing mind at the time of execution of the Will dated September 24, 1976 marked Ext. A. I have also categorically observed during discussion of the previous issues that the defendants have failed to establish suspicious circumstances surrounding the execution of the Will marked Ext. A and as such I can safely hold that the plaintiff has been able to prove the said Will as genuine document. In view of my above findings the plaintiff is entitled to get the order of probate of the Will dated September 24, 1976 (Ext. A). Both the issues no. (iv) and (v) are, thus, decided in favour of the plaintiff.
24. The plaintiff, thus, do get order of grant of probate of the last Will and Testament executed by the deceased [ENTITY] on September 24, 1976 in respect of his estate and properties along with a copy of the Will annexed thereto. The suit is decreed in terms of prayer (a) of the plaint. The plaintiff is directed to deposit balance amount of ad valorem stamp duty, if not already paid, within the four weeks from date. The department is directed to draw the decree as expeditiously as possible.
([ENTITY], J.) [ENTITY], [ENTITY], [ENTITY], [ENTITY] & [ENTITY] [C.R.]