PRONAB KUMAR DAS v. SUSHANTA KUMAR DAS — 1997 DIGILAW 396 (CAL)

SATYABRATA SINHA, J. ( 1 ) THE propounder of a Will has preferred this appeal being aggrieved by and dissatisfied with a judgment and decree dated 19th April, 1991 passed by sri A. Hai, learned Additional District Judge, 3rd Court, Burdwan in O. S. Will Case No. 2 of 1986/210 of 1984. ( 2 ) THE fact of the matter is not much in dispute. One Akhil Ch. Das executed the Will in question on 8th October, 1975 which was marked as' Exbt. 4. The said Akhil Chandra das left behind two sons, viz. Susanta and prosanta. The said Akhil Chandra Das was an employee of Government of India and at the relevant time he was passing a retired life. According to him in course of his employment he purchased some lands and raised-construction thereon in the benami of his wife Sudha debi, since deceased. He died on 25. 6. 83. In his Will he stated:"my elder son Sushanta does not act according to my will. He has married without my consent and has been putting up separately with the wife. My second son Prosanta has been living with me and doing all sorts of my medical treatment, entire maintenance and. services and care. In order to settle the dispute least it arises between the two brothers over my property, I executing this Will to disclose that my second son Prosanta Kumar Das will receive the property mentioned in the schedule 'kha' below. My elder son sriman Sushanta Das will get no share nor will be able to raise any claim or demand of the said property. I appoint. Sri Pranab Kumar Sen, son of Sri Antim chandra Sen of Bhatohala; Burdwan executor of this Will. He will take the probate of this Will. This is my only and last Will. This Will come into force after my death. To this effect I execute this will in the settled mind in good faith and of my own accord. " ( 3 ) THE said Wilt was scribed by one saktipada Bhattacharya and attested by Sushil kumar Bandopadhaya and Samarendra Prasad ghosh (P. Ws. 2 and 3 ). From the said Will it would appear that the properties described in schedule 'ka' was not the subject matter of will: whereas the property described in Schedule 'kha' thereof was bequeathed in favour of his second son (testator ). When the application. 2 and 3 ). From the said Will it would appear that the properties described in schedule 'ka' was not the subject matter of will: whereas the property described in Schedule 'kha' thereof was bequeathed in favour of his second son (testator ). When the application. for grant of Probate was filed, the first respondent filed an objection thereto as a result whereof,, the-same was registered as a suit. The learned Trial Court keeping in view of the contentions raised in the respective pleadings framed the following issues: 1. Is the document' annexed with the petition a Will? 2. Is the alleged Will duly executed by the testator and attested by the witnesses? 3. Had the testator sound disposing mind and capacity at the time of alleged execution of the Will? 4. Is the petitioner entitled to get probate of the Will as applied for? ( 4 ) THE appellant examined four witnesses. P'. W. 1 is the appellant who in his evidence stated that he was related to the testator who had executed the registered Will in respect of his property and appointed him as the Executor thereof. The said witness had produced and proved the draft of the Will which was in the hand writing of the testatory himself. The said draft Will was marked as Exbt. 12. ( 5 ) P. W. 2 is Sushil Kumar Bandapadhyay. He stated that the Will was scribed by Saktipada babu where after the testator put his signature. P. W. 2 proved the signature of Saktipada. Bandapadhyay which was marked as Exbt. 3. He has also proved the Will which was marked as Exbt. 4. The attesting witnesses also proved their signature in presence of the testator. He further stated that Akhil Babu was physically and mentally in good condition. ( 6 ) P. W. 3 Samarenda Prasad Ghosh was also an attesting witness. P. W. 4 is a handwriting expert. He examined the signature of akhil Chandra Das in the Will (Exbt. 4) with the admitted signatures and came to the conclusion that the Will bears the signature of the testator. His report was marked as Exbt. 9 and the enlarged photographs of the signatures were marked as Exbt. 10 series. ( 7 ) THE first respondent examined himself as O. P. W. 1. He alleged that the appellant was not in any way related to his family. His report was marked as Exbt. 9 and the enlarged photographs of the signatures were marked as Exbt. 10 series. ( 7 ) THE first respondent examined himself as O. P. W. 1. He alleged that the appellant was not in any way related to his family. He is a Dental Surgeon. According to him his father had affection towards him and he had the natural regard and reverence for his father. He further deposed that his father had no immoveable property. According to him, the testator died at Diplomat Nursing Home near his Chamber. He further alleged that the testator never informed him about execution of any Will. He denied that the said Will was executed by his father or the same had been attested by the witnesses named therein. ( 8 ) O. P. W. 2, Profulla Kumar Roy is the maternal uncle of the opposite party No. 1. He also stated that the property in question was purchased by the wife of the testator. ( 9 ) THE learned trial Judge upon consideration of the materials on records, inter alia, held that the propounder has failed to prove that the testator at the time of execution of the Will was in his normal state of mind and body and it was also held that the Will was executed in suspicious circumstances inter alia in view of non-examination of the scribe as well as the legatee who obtained a bounty by that Will, and, thus, the propounder is not entitled to get a Probate of the Will annexed with the application made by him under Section 276 of the Indian Succession act. . ( 10 ) THE aforementioned findings were arrievd at, inter alia on the following points:-1. The testator could not execute a will in respect of a property belonging to his wife; 2. As Prasanta had not been examined, execution of the Will had not been proved. 3. The propounder on his own show -. ing did not do anything in connection with the execution of the said will. 4. Saktipada Bandapandhyay (Scribe)having not been examined, the will cannot be said to have been" proved. 5. Draft of the Will was in the hand writing of the testator. 6. No proper reason has been assigned in the Will for depriving the eldest son of the testator. 7. 4. Saktipada Bandapandhyay (Scribe)having not been examined, the will cannot be said to have been" proved. 5. Draft of the Will was in the hand writing of the testator. 6. No proper reason has been assigned in the Will for depriving the eldest son of the testator. 7. Admittedly the testator had been ailing at the time of execution of the Will. ( 11 ) MR. Sudhish Dasgupta, the learned counsel appearing on behalf of the appellant, inter alia, submitted that upon a perusal of the deposition of the witnesses it would appear, that the learned trial Judge has failed to raise proper questions for adjudicating on the question of genuineness of a Will. According to the. learned counsel, the question of title of property bequeathed by reason of a Will is irrelevant and in support of his aforementioned contention reliance has been placed on chiranjilal Sharilal Goenka v. Jasjit Singh and Ors. . ( 12 ) THE learned counsel contends that the draft of the Will being in the own handwriting of the testator the same principles which apply to a photograph shall apply in this case and in support of his aforementioned contention reliance has been placed in Kris to gopal Nath v. Baidya Nath Khan and Ors. . ( 13 ) THE learned counsel submits that motive of the testator cannot be judged inasmuch as motive of one for executing a Will may not be the same so far as others are concerned, and in support of his aforementioned contention reliance has been placed on duvvuri Suryanarayanamurthi v. Duvvuri suramma and. Ors. . ( 14 ) AS regard the question of attestation the learned counsel submits that a Will has to be proved in the same manner as in case of any other document subject of course to proof of attestation thereof in terms of Section 63 of Indian Succession Act. Reliance in this connection has been placed on Sash; Kumar banerjee and Ors. v. Subodh Kumar Banerjee, sibo Sundari Debi v. Hemangini Debi, naresh Charan Dasgupta v. Paresh Charan dasgupta and Ran Lal v. Hari Kishan. ( 15 ) MR. Reliance in this connection has been placed on Sash; Kumar banerjee and Ors. v. Subodh Kumar Banerjee, sibo Sundari Debi v. Hemangini Debi, naresh Charan Dasgupta v. Paresh Charan dasgupta and Ran Lal v. Hari Kishan. ( 15 ) MR. Jyotirmoy Bhattacharya, the learned counsel appearing on behalf of the respondent, on the other hand, submits that when the Will has been executed in a suspicious circumstance and the same is unreliable, it was obligatory on the part of the propounder to remove all suspicions and prove by his own evidence that the Will in question was. genuine. According to the learned counsel for the purpose of adjudication on the question of genuineness of the Will the purpose and idea of execution of Will and the reason as to why the eldest son was deprived of from valuable property has to be considered particularly in view of the fact that at least some property had not been made the subject matter of the Will. ( 16 ) THE learned counsel has drawn our attention to contradictions and inconsistencies in the deposition of the P. Ws. and submits on the basis thereof that the appellant has not been able to prove due attestation of the Will. According to the learned counsel the propound'er arrived in the house of testator at about. 9 A. M. and found 3 persons, viz. Sri banerjee Babu. Saktibabu and Sa'marbabu. P. W. 2, however, had reached the place at about 8 A. M; and he found that the Will had not been written. He only found Saktibabu there and at about 9 A. M. Saktibabu began to write the Will and it took about 1-1/2 hours of time. The learned counsel pointed out that when the writing of the Will commenced, akhil Babu, Samar Babu, Kajal and Pranab and the said witnesses were present. The learned counsel submits that thus, according to P. W. 2 another person namely Kajal was present. The learned counsel also drew our attention to the evidence of P. W. 3 that the talk of the execution of the Will took place in presence of Sushil Babu and Makalesh mukherjee who is now dead. The said witness stated:"i went to Akhil Babu's house on 8th october, at about 8-30/9. The writing of the Will did not begin when I reached there. The said witness stated:"i went to Akhil Babu's house on 8th october, at about 8-30/9. The writing of the Will did not begin when I reached there. The writing of the Will was commenced shortly after 9 A. M. but I cannot say the exact time. On reaching akhil Babu's house I found there Sakti pada Bhattacharjee and Sushil Babu. None also was present at that time. It. ' took about half an hour time to complete writing of the Will There was discussion before the. writing of the will. After the Will was written the scribe put his signature and then Akhil babu executed it by putting his signature and then we signed. The scribe wrote the Will on a Secreteriate Table writing on a chair. I was then sitting on a bed stead. I cannot remember Susil babu was sitting or where the other persons were sifting. That bedstead was used by Akhil Babu for sleeping. Akhil Babu was then sitting on a chair. At about 10 I left Akhil Babu's house after the entire work was done. The registry office was open on that date. I have no personal knowledge who had gone to the Registry office. I know prasanta Babu, I keep information about. Prosanta Babu after Akhil Babu's death. " ( 17 ) MR. Bhattacharya, therefore, submitted that different stories have been introduced by the different witnesses and, thus, a suspicion arises as. regard due execution, and attestation of the Will. The learned counsel submitted that there has been a contradiction as to when the execution and attestation was completed i. e. whether the same was at 10 or 10 -. 30 a. m. which has a relevance in asmuch as admittedly the Will was presented before the registrar at 10-45 a. m. , as would appear from Exbt. 4. The learned counsel further submits that suspicion in the matter of execution of the Will would be evident from the following factors :-1. All the witnesses including the attesting witnesses were outsiders. 2. No reason has been assigned as to why no family members participated therein. 3. All the attesting witnesses become acquinted with the testator only 1 or 1-1/2 years from prior to the. execution of the Will. 4. The draft was not signed. 5. All the witnesses including the attesting witnesses were outsiders. 2. No reason has been assigned as to why no family members participated therein. 3. All the attesting witnesses become acquinted with the testator only 1 or 1-1/2 years from prior to the. execution of the Will. 4. The draft was not signed. 5. An absurd story has been made, out by P. W. 2 that the said draft was made in June, 1964 and then the witness stated in 1963. According to the learned counsel, it was obligatory on the part of the appellant to prove the ingredients of Section 59 of the Indian Succession Act to show that the Will was. made out of the testator's own free will upon proving all ingredients thereof. ( 18 ) THE learned counsel has drawn our attention to the documentary evidences on records and submits that at least from Exbt. 7 it would appear that the inter-caste marriage of the first respondent cannot be said to be a ground for depriving him from the properties in question. It is submitted that in the Will itself the testator has admitted his illness and it is in this connection the examination of the beneficiary viz. Prasanta, the second son of the testator was relevant as he was the only person who could state the nature of illness of his father. The learned counsel in support of his aforementioned contention strongly relied upon Smt. Indu Bala Bose and Ors. v. Manindra chandra Bose and Anr. and Ramachandra rambux v. Chainpabai and Ors. ( 19 ) IN view of the aformentioned contentions, the only question which arises for consideration is as to whether the findings of, the learned court below that the execution and attestation of the Will had not been proved for the reasons stated therein are correct. ( 20 ) BEFORE proceeding to deal with the said contention, certain basic facts may be noticed:-1. The draft Will was in the hands of the testator. The same has not been questioned. A comparison of the draft Will (Exbt, 12) and the will in question (Exbt. 4) would show that the latter almost replica of the former'. 2. The wife of the testator died in 1965. 3. The draft Will was in the hands of the testator. The same has not been questioned. A comparison of the draft Will (Exbt, 12) and the will in question (Exbt. 4) would show that the latter almost replica of the former'. 2. The wife of the testator died in 1965. 3. The land with some structures standing thereupon stood in the name of the wife of the testator but, complete renovation thereof was made in the year 1972 upon obtaining a proper sanction of the. plan by the Municipal Authorities. 4. The first respondent contacted an inter-caste marriage as has been admitted by D. W. 2 himself. ( 21 ) NOTHING has been brought on records to show that the wife of the testator had an independent income. The first respondent after his marriage stayed for some time with his father but admittedly he started living separately in the old house of the testator. It may be placed on records that it is not necessary for us to consider a disputed question: as to whether the said house belonged to the testator or merely a rented one. ( 22 ) ON 11. 7. 74 Susanta in a note addressed to his father categorically stated that he. had no claim or demand over the property whether belonging to him or his mother and he would abide by the decision of the testator and would not raise any objection thereto. The said note has been marked as Exbt. 6. The Will was executed on 8. 10. 75. ( 23 ) A letter (Exbt. 8) was written by testator to Sri Bimal Kumar Chowdhury, father-in-law of the first respondent, from a perusal whereof it appears that the testator had appreciated the melancholy and pathetic tone of the writer. He stated that he had not intended to bother him over the dowry and if he wants to present some furniture, he may do so when an opportunity and occasion arise. He categorically stated that if for that reason he was not in a position to come to the residence of his daughter, he felt ashamed therefor. He implored the addressee to come to see his daughter. He categorically stated that if for that reason he was not in a position to come to the residence of his daughter, he felt ashamed therefor. He implored the addressee to come to see his daughter. Even as regard the furniture proposed to be given to the couple he stated that he need not send the furniture but he would get the same for them and he can send the necessary expenses therefor which would be round about Rs. 500/- in 2 or 3 instalments and not at a time but for this he should not feel disturbed. ( 24 ) ON 12th November, 1977 the testator wrote a letter to the prospective father-in-law of his second son wherein he stated that his elder son is a Dental Surgeon and he stays: separately in his old house. and earn sufficiently. His second son is an employee of food Corporation of India being a science graduate and having received training in the quality Control at Delhi. ( 25 ) IN the house, he, his youngest son and a grand-daughter reside. He had shown his modesty stating that although there is not much affluence in his family, there are not many wants either. According to him his. second son out of his salary of Rs. 850/- pm. pays a sum of Rs. 600/- pm. to him, and his own income from house rental is Rs. 900/-a'nd, thus, the total family income is Rs. 1,. 500/ -. ( 26 ) THE aforementioned Exbt. clearly show that the testator was a man of amiable, nature. He although was hurt by the inter-caste marriage of his eldest son which would be evident from the fact that he did not attend the same, when his father-in-law wrote him a latter after a few years, in Exbt. 8 he had shown due courtesy to him. Exbt. 7 also depicts modesty of. the testator. ( 27 ) IT has to be have in mind that a Hindu is free to make a testamentary disposition of all the properties in respect whereof he could enter into a contract. Section 59 of the Indian succession Act provides that every person of sound mind and who is not being minor may dispose of his property by Will. ( 28 ) FOR the purpose of execution of a will no particular form is prescribed. Section 59 of the Indian succession Act provides that every person of sound mind and who is not being minor may dispose of his property by Will. ( 28 ) FOR the purpose of execution of a will no particular form is prescribed. The wish of the testator as regard his disposition which would take place after his death may be construed to be a Will. Will may be formal or informal, oral or in writing. It may be registered or unregistered. In the instant-case the draft Will (Exbt. 12) has not been questioned. It is tfue that one of the witnesses stated that the same had been executed in June, 1964 or june, 1963 but it appears that some mistake had occurred therein. The witness stated :"the petition for Probate of the Will was written according to the instruction of Akhil Babu. I told my lawyer of this draft in June, 1964,' (Then says) in 1963," ( 29 ) EVEN the first sentence reproduced hereinbefore does not make any sense. The second sentence, in our opinion, also contain a mistake as it may be the year 1983' was stated instead and place of 1963. ( 30 ) A Registered Will although does not absolve the propounder from proving the genuineness of valid attestation thereof, registration of a Will is a strong circumstance that the proper parties had appeared before the registering Officer and the latter had attested the same after ascertaining the identities. It is true that registration of a Will itself would not be a proof of sound diposing mind of the testator nor thereby. the court shall unhesitantly come to the conclusion that the same had been duly executed. ( 31 ) IT is also worth noticing that the first respondent did not question the signature of the testator put on the reverse side, of the first page of the registered Will before the Registering Authority or his left thumb impression therein. the court shall unhesitantly come to the conclusion that the same had been duly executed. ( 31 ) IT is also worth noticing that the first respondent did not question the signature of the testator put on the reverse side, of the first page of the registered Will before the Registering Authority or his left thumb impression therein. ( 32 ) THE circumstances as would appear from the documents hereinbefore would clearly suggest that although with some hesitation the testator allowed the first respondent to live with his wife for some time but in the year 1974 there had been a talk as regards disposition of the property by him whether standing in his name or in the name of his wife as otherwise there does not appear to be any earthly reason as to why the first respondent had issued that note to his father. ( 33 ) P. W. 1 in his evidence did not dispute the said note but merely stated:"i cannot remember then in what condition I had written this. " He, therefore, did not deny his writing," ( 34 ) THE Will in question was executed on 8. 10. 75. As the question of genuineness of the said Will was raised, the disputed signature in Exbt. 4 was sent to a hand-writing expert. The said hand-writing expert examined himself as P. W. 4. Nothing has been elicited in his cross-examination nor any argument has been advanced before us by Mr. Bhattacharya that he is not a reliable witness or his report (Exbt. 9) is an unreliable one. He has also proved the negatives of the enlarged. photographs which were marked as Exbts. 11 and 11/1 and 10 series respectively. ( 35 ) THE witness in answer to a question that the signature very often very according to the age and the physical strength of the writer answered that although the. same was correct but the fundamental habit of the writing of the writer would remain unaltered. Furthermore, as noticed hereinbefore, the writing of the testator in the draft Will had not been questioned. ( 36 ) IT is true that the propounder was his mother-in-law's uncle and, thus, he was his natni Jamai (grand-son-in-law ). He stated in details as regard execution of the Will and the attestation thereof. He was called by Akhil chandra Das's servant. He stated that three persons, viz. ( 36 ) IT is true that the propounder was his mother-in-law's uncle and, thus, he was his natni Jamai (grand-son-in-law ). He stated in details as regard execution of the Will and the attestation thereof. He was called by Akhil chandra Das's servant. He stated that three persons, viz. scribe (Sakti'pada Bhattacharya)and two attesting witnesses, P. W. 2 (Sushil kumar Bandopadhyay) and P. W. 3 (Samere'ndra prosad Ghosh) were present. He also proved that the scribe wrote the Will after a draft was read over to him and described. The said draft was in the testator's own hand-writing. It may be true that he did not do anything in connection, with said Will besides presenting the same in the court for Probate but he was not required to do anything further. He is not a beneficiary under the Will. Nothing has been pointed out that he bears any grudge against the respondent. He denied the suggestion that the testator was seriously ill' till he died and he had not the capacity to. execute the. Will. He proved draft of the Will. From the said draft it appears that even the name of the writer of the Will and the names of the attesting witnesses had also been mentioned and to that effect P. W. 1 has also deposed. He stated that Saktipada, Bhattacharya is dead but despite the same the learned trial Judge has considered the said fact as one of the circumstances to show that the Will was not properly executed and attested. No evidence to the contrary namely, that the scribe is alive has been adduced by the defence witnesses. ( 37 ) P. W. 2 is one of the attesting witnesses. He proved due execution and attestation of the Will. He also appears to be an uninterested witnesses he also stated that he had not taken any initiative in respect of the will apart from being an attesting witness. Although according to him, on that date he did not take any leave and he used to leave burdwan by Coal-Field Express, there is nothing to show that he deposed falsely. He might have attended his office later. He knew the scribe as he got his deeds also scribed by him. His evidence, as referred to hereinbefore, shows that the attestation of the Will was in. accordance with law. He might have attended his office later. He knew the scribe as he got his deeds also scribed by him. His evidence, as referred to hereinbefore, shows that the attestation of the Will was in. accordance with law. He denied the suggestion that Akhil Babu was bed-ridden or he had not the capacity to execute the Will. ( 38 ) P. W. 3 also proved the due attestation. He categorically stated that Akhil Babu was completely aware of the nature of the document which he had executed and which he did on his own accord. He further stated that Akhil Babu was physically fit to execute the Will. ( 39 ) IT appears that the criticism of Mr. Bhattacharya to the effect that P. W. 2 had stated about the presence of another person kajal is not correct as upon perusal of the original deposition it appears that he stated kajal @ Pranab Sen and not Kajal and Pranab sen. Thus, no fourth person was present. ( 40 ) THERE may be certain discrepancies as regard the timing of the completion of the writing, execution and attestation of the Will i. e. whether any formalities were completed by 10/10-30. but in our opinion the same is not very material in view of the fact that the will was executed in the year 1975 whereas the death occurred in 1987. Such small inconsistencies or contradictions are very natural as it is not possible for all persons to remember the events which had taken place 12 years back rather had there been no such trivial contradictions the court could have assumed that they are turtored witnesses. ( 41 ) THE submissions of Mr. Bhattacharya to" the effect that Exbt. 8 clearly shows that the will was executed as that respondent contacted inter-caste marriage is not correct but the said document has to be considered keeping in view the other materials on record. As indicated hereinbefore, there must have been a dispute which arose as regard to the property or other family affairs between the first respondent and the testator as otherwise. There was absolutely no reason why admittedly the respondent was living separately and had written his intention not to claim his right over any property whether standing in the name of the. testator or his wife. There was absolutely no reason why admittedly the respondent was living separately and had written his intention not to claim his right over any property whether standing in the name of the. testator or his wife. Such a dispute might have a nexus or indirect connection with the intercaste marriage of the respondent. ( 42 ) THE participation of the family member in the matter of genuineness of the Will is not relevant inasmuch the testator might not have intended to disclose to his family members the reasons for execution of the Will. Probably only with that view of the attesting witnesses are persons who are outsiders and not near relatives. The contention of Mr. Bhattacharya to the effect that the draft Will has not been signed by the testator is of no consequence inasmuch as had that been signed, the same itself would have become a Will. The very, fact that the testator could draft the contents of the Will is by itself of pointer to the fact that he was physically and mentally fit. ( 43 ) IF the testator was not physically and mentally fit to execute the Will, the respondent although a Dental Surgeon, but having some knowledge about the subject of medicine would have certainly known at least the nature of disease he was suffering from and the treatment given to him therefor. Furthermore, the fact that he did not intend to deprive his eldest son altogether is also a pointer to the fact that the Will is natural. Had the Will been executed under influence of the second son, the entire property belonging to the testator could have been bequeathed in his -favour. Possibly at that juncture the testator did not want to divulge the contents of the Will to anybody and as from the evidence' on records it does not transpire that the second son of the testator had played any. role whatsoever at the time of drafting the Will, the execution and registration thereof. In that view of the matter the non-examination of the second son of testator might not be very material as he played no role whatsoever. ( 44 ) WE do not also accept the submission of Mr. Bhattacharya to the effect that the will should be treated with suspicion as therein itself the testator had stated about his illness. In that view of the matter the non-examination of the second son of testator might not be very material as he played no role whatsoever. ( 44 ) WE do not also accept the submission of Mr. Bhattacharya to the effect that the will should be treated with suspicion as therein itself the testator had stated about his illness. The law does not require that a person, in order to be capable of making a Will, must be possessed of his mental powers at their best, and unimpaired in any degree by old age or disease. On the other hand, the mental capacity and the physical capacity of the testator is evident from Exbts. 6, 7 and 8. Exbt. 6 shows that he was thinking of disposition of his property and it is in that context he had a talk with respondent pursuant whereby theaforementioned note (Ex. bt. 6) has been written. Furthermore, Exbt. 7 is a document of 1977. The said document clearly shows that the testator even in the year 1977 was physically and mentally fit. We had examined the original at Exbt. 7 which is in Bengali vernacular and are satisfied with the same had been written by a person having a natural mental faculty and as the contents of the said letter are completely in tune with the conduct of a natural person on such occasion, namely negotiation of marriage of the second son, ( 45 ) IT is expected that an aged person would remain ill but that does not mean that he would not have a mental faculty and loose his testamentary capacity. There are various decisions of different High Courts where from it would appear that in cases of even a testator dying on the next day of execution of the Will was held to be good. See Gordhandas Nathalal patel v. Bal Sura; and Chhanga Singh indar Singh v. Dharam Singh. Even inability on the part of the testator, to put his signature and putting a thumb impression or writing in his mother-tongue has been held to be good. See. Mst. Gullan Devi. v. Mst. Puna @ Puran Devi. ( 46 ) IT may further, be noticed that admittedly the testator died in the year 1982 i. e. after 8 years from the date of execution of the will. See. Mst. Gullan Devi. v. Mst. Puna @ Puran Devi. ( 46 ) IT may further, be noticed that admittedly the testator died in the year 1982 i. e. after 8 years from the date of execution of the will. It is also evident from the records that the respondent had not been looking after his father whereas from Exbt. 7 it appears that the second son out of his salary of Rs. 850/ was offered a sum of Rs. 650/- to his father and, has also been bearing' his medical expenses. The learned trial Judge unfortunately did not consider this aspect of the matter. As indicated hereinbefore, D. W. 1 could not explain Exbt. 6. He even in his deposition could not state as to whether his father had been admitted in Park Nursing Home, Calcutta. He in his deposition stated that the Will was manufactured by the appellant in collusion and conspiracy with his friends and well wishers. He, neither pleaded the said fact nor proved the same. He also did not state in details as to who the friends and well wishers of the petitioner were. Furthermore, as the petitioner is not a beneficiary, the question of his colluding with somebody to manufacture a will does not arise. ( 47 ) HE admitted that his father had retired on 1. 1. 71. Although he relies on Exbt. 8. he did not disclose what was the mental and physical condition of the testator in 1975 although he has not been stated as to why he had started his practice as Dental Surgeon in 1969 and had been paying Income Tax from 1972-73 and had a chamber from 1970, he had not been making any contribution for maintenance of his father. He made out an absurd case that he lives in the said house although from Exbt. 7 it is evident that he had not been living in the house for a long time. He, however, admitted that the house in question was made habitable in 1974-75 and his father started living in the house with his younger brother separately. . In answer to a question that he never lived in the said house, he merely stated he did not reside there permanently but he stayed there but he had no document to show that he partly lived there. No such document had been filed. . In answer to a question that he never lived in the said house, he merely stated he did not reside there permanently but he stayed there but he had no document to show that he partly lived there. No such document had been filed. As regard the purchase of the house, he stated that the same was done in 1949 and 1951 although from his deposition it appears that he was born in 1943 and, thus, he could not have known about incidents occurring in 1949 and 1951. He had not been able to prove his mother's separate income although he stated that his mother had Rs. 70,000/- in her account in Allahabad Bank. He admitted that his father used to collect rent from the tenant during his life time The said fact also goes to show the mental and physical fitness of the testator. Although he stated. that he paid bills in the nursing home when his father was admitted but he did not file the same. Although he stated that his father was a patient of chronic disease, he did-not file any document to prove the same. ( 48 ) D. W. 2 is the maternal uncle of D. W. 1 whose evidence is of no consequence as he categorically admitted that he had been deposing in the case as he had been told by the respondent. It is interesting to note that in answer to a question, he stated "i do not know when he has executed the Will". Thus, this witness does not state that the Will is a fabricated one. ( 49 ) THE learned trial Judge, in our opinion, committed a serious error of law in so far as he took into consideration the question of title in respect of the property in question. ( 50 ) IN Chiranjilal Shrilal Goenka v. Jasjit Singh and Ors. (supra), the Apex Court clearly states that Probate court does not decide any question of title or the existence of the property itself. In fact, the respondent has already filed a partition suit on 3rd July, 1985 wherein, such a question can be gone into ( 51 ) SO far as the finding of the learned trial Judge to the effect that the scribe has not been examined, evidently he being dead could not have been examined. In fact, the respondent has already filed a partition suit on 3rd July, 1985 wherein, such a question can be gone into ( 51 ) SO far as the finding of the learned trial Judge to the effect that the scribe has not been examined, evidently he being dead could not have been examined. It was also not necessary for the propounder to do anything in respect of the Will. ( 52 ) THE learned trial Judge, in our opinion, also committed an error in holding that the Will is not genuine, as taking into consideration that the draft thereof was in the handwriting of the testator which, in our opinion, clearly goes to show that the testator had the mental capacity. ( 53 ) IN Ajit Ch. Majmudar v. Akhil Ch. Majrnudar, P. B. Mukharji, (as the learned chief Justice then was) states that law makes a great presumption in favour of genuineness of a holograph Will. Although the Will in ' question is not a holograph, the draft being in the hand-writing of the testator himself; We are of the opinion that the same also shows the mental capability of the testator. The learned Judges held:"the function of the Court of Probate is to see if the Will proposed by the propounder was duly made and executed by a capable testator. The onus probandi lies upon the party propounding a Will who must satisfy the conscience of the court that the instrument so propounded is the last Will of a free and capable 'testator 'and also that if a party writes and prepares a Will, under which he takes a benefit, that is a circumstance which ought generally to excite the suspicion of the court and calls upon it to be vigilant and zealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce unless the suspicion is removed and it is judicially satisfied that the paper propounded does express the true Will of the deceased. It is only when the propounder has succeeded in removing such suspicion and in proving affirmatively that the testator knew and approved all the contents of the Will, that the onus would be on those who opposed the will. to prove fraud and undue influence to displace the case for proving the will. It is only when the propounder has succeeded in removing such suspicion and in proving affirmatively that the testator knew and approved all the contents of the Will, that the onus would be on those who opposed the will. to prove fraud and undue influence to displace the case for proving the will. The burden of proving undue influence is not discharged by merely establishing that the person had power unduly to overbear the Will of the testator. It must be shown that in any particular case that power was, in fact, exercised and that it was by means of exercise of that power that the Will was obtained. " ( 54 ) IN the instant case we do not find any material of suspicious nature. ( 55 ) IT is also well known that it would be open to the court to consider circumstances brought out in evidence or which appeared from the nature and contents of the document itself the court can look into the surrounding circumstances as well as inherent impossibility of the case to reach a proper conclusion on the nature of evidence adduced by the parties. ( 56 ) IN Naresh. Charan Das Gupta v. Paresh Charan Das Gupta and Anr. (supra), the Apex Court has held. "and if the testator retains his mental capacity and there is no element of fraud or coercion-it has often been observed that undue influence may in the last analysis be brought under one or the other of these two categories-the Will cannot be attacked on the ground of undue influence. "furthermore, it is not a case where the Will: has not been put for Probate for a long time. ( 57 ) IN Smt. Indu Bala Bose and Ors. v. Man indra Chandra Bose and Anr. (supra) upon which Mr. Bhattacharya himself relied upon, the Apex Court has held that it did not find any suspicious circumstances. It lays down the lay in the following term:-"the mode of proving a Will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Succession Act. It lays down the lay in the following term:-"the mode of proving a Will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Succession Act. 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. " ( 58 ) IN Ramachandra Rambux v. Champabai and Ors. (supra), the Supreme Court was dealing with a case whereby, reason of a will substantial benefits had been conferred upon the propounder and he had taken a prominent part in execution of the Will and that led to a conclusion that the same by itself is generally treated as a suspicious circumstances attending the execution of the Will. ( 59 ) IN the instant case the propounder does not derive any benefit under the Will nor as noticed hereinbefore, he has taken any active part. The Supreme Court also following its earlier decision in H. Venkatachala Iyengar v. B. N. Thimmaiamma and Shashi Kumar banerjee v. Subodh Kumar Banerjee (supra)held 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 63 of the Indian succession Act. ( 60 ) IN Sibo Sundari Debi v. Hemangini debi (supra), this court has held that the strict affirmative proof of due attestation is absolutely not necessary in all circumstances. ( 61 ) IN Kristo Gopal Nath y. Baidya nath Khan and Ors. (supra), a division bench of this court held that non-examination of writer does not make their evidence unworthy of credit. It has further been held that what may be an adequate motive to one man may not be so to another and it could never be a wide or sound role to start speculating as to what might have been the motive which impelled the testator to make the alleged Will subject of course to the prove that the Will was in fact executed. ( 62 ) IN Duvvuri Suryanarayanamurthi v. Duvvuri Suramma and Ors. ( 62 ) IN Duvvuri Suryanarayanamurthi v. Duvvuri Suramma and Ors. (supra), the Privy council as regard the mental capacity even did not accept the evidence of Doctor or the testator after two days of the execution of the will against the positive testimony of competent and disinterested witnesses who proved testamentary capacity at the time of execution of the Will. ( 63 ) KEEPING in view the facts and circumstances of this case we are of the considered opinion that the learned trial Judge erred in passing the impugned judgment; The appeal is, therefore, allowed. The impugned judgment and decree are, therefore, set aside and it is held that the propounder appellant was entitled to grant of probate of the Will as prayed for. In the facts and circumstances of this case, however, the parties shall bear their own costs of this appeal. Bhaskar Bhattacharya, J.-I agree. Appeal allowed. Probate granted.