Judgment P.K.Deb, J. 1. Both the appeals have been heard analogously as they arise out of the common judgment dated 19.8.1988 passed by Shree Chiranji Singh, 4th Additional Judicial Commissioner, Ranchi, in two probate cases, namely, Probate Case Nos. 134 of 1982 and 69 of 1983 which were also heard together and disposed of by a common judgment. 2. There is chequered history of the case. Once both these appeals were heard by Hon ble Mr. Justice Amir Das as he then was and by order dated 2nd February, 1994 the appeals were allowed and the judgment under appeals was set aside and both the cases were remanded back to the learned court below for coming to a just conclusion of the case after consideration of the different circumstances as enumerated in the remand order itself giving opportunities to both the parties to adduce further evidence in support of their respective claims. Against that remand order, Bibhuti Bhushan Sen Gupta, the respondent in both the appeals, had preferred Letters Patent Appeal Nos. 127 of 1995 (R) and 52 of 1994 (R) and both the Letters Patent Appeals had been disposed of by a common judgment and order dated 17.3.1997. It may be mentioned here that then the Letters Patent Appeals were preferred after the period of limitation with a prayer for condonation of delay under Sec. 5 of the Limitation Act, the original case records of both the aforementioned probate cases were not before this Court as in compliance of the remand order the original case records had been already sent back to the court below and it appears that the Division Bench had heard the Letters Patent Appeals without original records. This should be clarified from the order dated 7.4.1997 passed by this Court when for hearing these appeals again, the Lower Court records had again been called for from the court below. This should be clarified from the order dated 7.4.1997 passed by this Court when for hearing these appeals again, the Lower Court records had again been called for from the court below. The Division Bench had set aside the remand order with the following observations and directions: In this view of the matter, we set aside the judgment and order of the learned Single Judge remanding the appeals to the trial court and we direct that these two appeals be heard by a Single Judge of this Court and disposed of and on the basis of the materials available on record, in our view, remand in a case of this nature is wholly unjustified and not in the interest of justice. Nothing said in this judgment should be construed as expression of opinion on the merits of the case. Since the appeals are old one, with consent of the parties, we direct that those should be listed before an appropriate Bench on 7.4.1997 as a first matter subject to part heard. 3. Thus when the case was placed before this Bench on the basis of the directions and observations of the Division Bench it was found that original records are not before this Court and were not placed before the Letters Patent Appeals Court and the judgment of the Letters Patent Appeal was delivered by the Division Bench without the original records, hence the lower Court records were again called for from the original Court and then appeals were heard analogously. 4. The facts of the case are not very disputed. Suhashini Sen Gupta was the original owner of the suit property and she was the testatrix in respect of two Will which are disputed in the probate cases as mentioned above. She dies admittedly on 2.12.1980 at a very old age while she was more than 80 years old, she left behind two sons namely Shanti Bhushan Sen Gupta and Bibhuti Bhushan Sen Gupta and two daughters, namely, Smt. Sendhaya Roy and Miss. Diba Sen Gupta. After the death of Suhashini Sen Gupta, Probate Case No. 134 of 1982 was filed by the appellant Mirtunjay Ghatak. Advocate, the executor of the Will, alleged to be executed by Suhashini Sen Gupta on 11.10.1974. As per that Will which has been marked as Ext. Diba Sen Gupta. After the death of Suhashini Sen Gupta, Probate Case No. 134 of 1982 was filed by the appellant Mirtunjay Ghatak. Advocate, the executor of the Will, alleged to be executed by Suhashini Sen Gupta on 11.10.1974. As per that Will which has been marked as Ext. 1 in the case, Suhashini Sen Gupta bequeathed more than 19 kathas of land in favour of her eldest son Shanti Bhushan Sen Gupta to the exclusion of other legal heirs i.e., as per that will, Shanti Bhushan Sen Gupta was the only beneficiary under that Will. 5. In Probate Case No. 134 of 1982, Mirtunjay Ghatak, the alleged executor, prayed for letters of administration on the basis of the Will dated 11.10.1974 and made parties to all the heirs of Suhashini Sen Gupta.In that probate case, Bibhuti Bhushan Sen Gupta, second son of Suhashini Sen Gupta filed written statement objecting the execution and geminate of the Will and his contention has been supported by a separate written statement filed by his two sisters, namely, Smt. Sandhaya Roy and Miss. Diba Sen Gupta. The objection was raised that even if any Will was executed by Suhashini Sen Gupta in favour of Shanti Bhushan Sen Gupta on 11.10.1974 the same had already been revoked by another Will executed on 23.4.1978 in which Shanti Bhushan Sen Gupta was the attesting witness. It is the further contention of Bibhuti Bhushan Sen Gupta that ingenuity of the Will dated 11.10.1974 it is clear from the facts that Suhashini Sen Gupta had sold away the major part of the lands included in the Schedule of the Will in favour of two persons long back and the purchasers had taken possession of the same but ignoring those sales and already transferred properties the whole and had been included in the Schedule of the Will dated 11.10.1974. His further contention is that Suhashini Sen Gupta before her death had executed another Will on 19.12.1979 in favour of Bibhuti Bhushan Sen Gupta and other beneficiaries of the Will i.e. the two sisters, namely, Smt. Sandhaya Roy and Miss. Diba Sen Gupta and in this will there is total exclusion of Shanti Bhushan Sen Gupta. His further contention is that Suhashini Sen Gupta before her death had executed another Will on 19.12.1979 in favour of Bibhuti Bhushan Sen Gupta and other beneficiaries of the Will i.e. the two sisters, namely, Smt. Sandhaya Roy and Miss. Diba Sen Gupta and in this will there is total exclusion of Shanti Bhushan Sen Gupta. After the probate case was filed by the executor of the Will dated 11.10.1974, Bibhuti Bhushan Sen Gupta had also filed probate Case No. 69 of 1983 for getting letters of administration in support of the said Will executed by Suhashini Sen Gupta allegedly on 19.12.1979. Thus it appears that there were two rival Wills allegedly executed by the same executrix Suhashini Sen Gupta and as much the cases were tried analogously but the evidence in both the cases had been recorded separately. 6. In probate Case No. 69 of 1983, objections were filed by Mirtunjay Ghatak, the executor of the Will dated 11.10.1974 and Shanti Bhushan Sen Gupta and the contentions of Bibhuti Bhushan Sen Gupta were supported by the other beneficiaries of the Will dated 19.12.1979 i.e. his two sisters as mentioned above. On consideration of the rival contentions of the parties, the learned court below formulated two points for consideration, namely: I. Whether Suhashini Sen Gupta executed her last Will and testament on 11.10.1974 with her free Will and, thus, whether the letters of administration could be issued in favour of the petitioner of the Probate Case No. 134 of 1982? II. Whether Suhashini Sen Gupta executed her last Will and testament on 19.12.1979 with her free will, consent and being in sound mental condition and thus letters of administration could be granted in favour of the petitioner of Probate Case No. 69 of 1983 on the basis of this Will? 7. In Probate Case No. 134 of 1982, three witnesses were examined for and on behalf of the plaintiff Mirtunjay Ghatak, namely, P.W. 1 Narain Chandra Das who happens to be the son of Vijay Chandra Das who had typed the Will dated 11.10.1974. P.W. 2 Mirtunjay Ghatak is the petitioner and the executor of the Will and he has proved the Will and supported his contention in the Probate petition P.W. 3 Hem Chandra Ghosh is the attesting witness of the Will dated 11.10.1974. Two D.Ws. P.W. 2 Mirtunjay Ghatak is the petitioner and the executor of the Will and he has proved the Will and supported his contention in the Probate petition P.W. 3 Hem Chandra Ghosh is the attesting witness of the Will dated 11.10.1974. Two D.Ws. were examined in the case, namely, Samar Ray and D.W. 2 Bibhuti Bhushan Sen Gupta. They denied the execution of the Will dated 11.10.1974 and contended about the Will dated 19.12.1979. They have also proved that on the date of execution of the Will dated 11.10.1974, the testatrix was not having the land measuring 19 Kathas and odd which had been mentioned in the Will. In Probate Case No. 69 of 1983, three P.Ws. have been examined on behalf of the propounder viz P.W. 1 Nityanand Banerjee who is the attesting witness of the Will dated 19.12.1979. P.W. 2 Debesh Ranjan Sen who claimed to be present at the time of execution and registration of the Will and he endorsed the L.T.I. of the testatrix before the Sub-Registrar, P.W.3 Bibhuti Bhuashan Sen Gupta is the propounder and applicant in respect of Will dated 19.12.1979. On the defence side, three witnesses have been examined viz. D.W. 1 Mani Chakravarty. D.W. 2 Dasrath Mukherjee and D.W. 3, Shanti Bhushan Sen Gupta, the objectors defendant in Probate Case No. 69 of 1993. After consideration of the evidence on record and the documents produced by the parties, the learned Court below came to the finding that both the wills were genuine and were executed by the executrix Suhashini Sen Gupta but the Will dated 19.12.1979 being a subsequent one it legally revoked the earlier Will dated 11.10.1974 and, as, such, the order has been passed for grant of letters of administration in Probate Case No. 69 of 1983 while Probate Case No. 134 of 1982 has been dismissed. 8. The evidence adduced in both the cases are not up to the mark. It is the bound on duty of the propounders of the Wills to dispute the suspicious circumstances by adducing cogent and reliable evidence but the learned single judge while disposing of the appeals being not clarified of all the suspicious circumstances had remanded the case giving opportunity to both the parties to adduce further evidence in the case. It is the bound on duty of the propounders of the Wills to dispute the suspicious circumstances by adducing cogent and reliable evidence but the learned single judge while disposing of the appeals being not clarified of all the suspicious circumstances had remanded the case giving opportunity to both the parties to adduce further evidence in the case. The said judgment of remand had been set aside by the Division Bench in the letters Patent Appeals and direction has been given that on the evidence on record, the matter should be disposed of as there is no scope of any remand for further evidence in the case but I am still of the view on going through the records that some more evidence are definitely necessary to clarify all suspicious circumstances arising in the case. Be it what it may, I am now duty bound to dispose of the appeals as per the direction of the letters Patent Appeals Court on merits on the materials available on record. 9. Both the Wills are registered documents and admittedly the testatrix had executed the wills while she was living in custody of the propounders/beneficiaries of the Wills at the relevant point of time. This I have mentioned from the admitted facts to the effect that the father of the beneficiaries Indu Bhushan Sen Gupta died in the year 1966 and then the testatrix Suhashini Sen Gupta was residing in her own house alongwith her eldest son Shanti Bhushan Sen Gupta while the other son Bibhuti Bhushan Sen Gupta was in service else where. When Bibhuti Bhushan Sen Gupta came down to Ranchi, he did not stay in the original home and lived in a rented house and while he was provided quarter by the employer i.e. Accountant Generals Office, then he shifted to the quarter. When Bibhuti Bhushan Sen Gupta came down to Ranchi, he did not stay in the original home and lived in a rented house and while he was provided quarter by the employer i.e. Accountant Generals Office, then he shifted to the quarter. Upto 1977 Suhashini Sen Gupta was besiding with Shanti Bhushan Sen Gupta in her original home but when she became seriously ill because of her old age, she was taken by Bibhuti Bhushan Sen Gupta with the permission of Shanti Bhushan Sen Gupta though it appears that both the brothers were not maintaining good relations and it is alleged by Shanti Bhushan Sen Gupta that upto same period he was visiting the house of Bibhuti Bhushan Sen Gupta to see his ailing mother but he was debarred by Bibhuti Bhushan Sen Gupta in meeting his ailing mother and only in the year 1980 he went to the house of Bibhuti Bhushan Sen Gupta for doing the last rites of her mother. So the first Will (Ext. 1) dated 11.10.1974 was executed by Suhashini Sen Gupta while she was in the custody of eldest son Shanti Bhushan Sen Gupta and the second Will (Ext. B) was executed allegedly by her while she was more old and suffering from various old age disease at the custody of her youngest son Bibhuti Bhushan Sen Gupta on 19.12.1979 and then after one year of such execution of the Will, Suhashini Sen Gupta dies in the month of December, 1980. As per Ext. 1, Suhashini Sen Gupta was aged about 82 years in the year 1974 and as such although no specific age was mentioned in Ext. B, she must be aged more than 85 years while executing Ext. 2. So both the wills were allegedly executed by Suhashini Sen Gupta, executrix, while under the custody of her respective sons, so there was ample opportunity of the beneficiaries/propunders, namely, Shanti Bhushan Sen Gupta and Bibhuti Bhushan Sen Gupta to influence their mother the executrix, to make the respective wills at the relevant time. Suhashini Sen Gupta was almost an illiterate lady although it is stated that she knew to sign in Bengali language and she could little read and write Bengali language but both the wills are in English language and typed. These circumstances are very much necessary to be kept in mind while adjudicating the genuineness of the wills in question. 10. Suhashini Sen Gupta was almost an illiterate lady although it is stated that she knew to sign in Bengali language and she could little read and write Bengali language but both the wills are in English language and typed. These circumstances are very much necessary to be kept in mind while adjudicating the genuineness of the wills in question. 10. Let me first of all take the case of Ext. 2 i.e. the Will dated 19.2.1979 on the basis of which letters of administration has been granted by the impugned judgment. 11. The Will was allegedly executed o., 19.12.1979 and the same was registered on commission at the quarter of one of the beneficiaries Bibhuti Bhushan Sen Gupta on 24.12.1979. There are three attesting witnesses of this Will, namely, Nityanand Banerjee, Santar Ojha and Subhash Chandra Tiwary. Out of them, only one attesting witness Nityanand Banerjee has been examined. Suhashini Sen Gupta was knowing to sing her name in the Bengali language but in this case she has not signed her name but had put her left thumb Impression (L.T.I.). Bibhuti Bhushan Sen Gupta who had examined himself in both the cases had taken different pleas regarding not putting signature by the Executrix of the Will. At one point of time, he had stated that at the time of execution of the Will (Ext. 2), the Executrix had trembling of her hands because of her old age and she was always lying down at her bed and as such she had to put her L.T.I. that too with the help of another. This portion of evidence of Bibhuti Bhushan Sen Gupta has been supported by his elder brother Shanti Bhushan Sen Gupta although adverse party in the case to the effect that their mother was not in a position to understand or to loiter without the help of any body. At different stage of deposition he stated that his mother was not having tremble of hand nor she was bed ridden. This sort of contrary evidence could not be reconciled at any point of time. She could move a little that too with the help of another. At different stage of deposition he stated that his mother was not having tremble of hand nor she was bed ridden. This sort of contrary evidence could not be reconciled at any point of time. She could move a little that too with the help of another. Again the L.T.I. of Suhashini Sen Gupta was endorsed by Satyabrata Das Gupta on 19.12.1979 and it appears by Satyabrata Das Gupta on 19.12.1979 and it appears that he took much interest in the matter when he gave a foot-note in the Will to the effect that the name of the testatrix Suhashini Sen Gupta was wrongly typed as Suhashini Sen Gupta and the said typographical error was corrected. There are in total five L.T.Is. on the body of Ext.2. endorsed by that Satyabrata Das Gupta on 19.12.1979 but on the date of registration this witness was conspicuously absent and the L.T.I. of the testatrix was endorsed by the witness Devesh Ranjan. The execution of the Will relates to dated 19.12.1979 and her L.T.I. was taken by Satyabrata Das Gupta being endorsed by him but the said Satyabrata Das Gupta had not been examined in the case and no explanation has been given from the side of the petitioner as to why the evidence of Satyabrata Das Gupta has been suppressed. Thus the points as to why the testatrix had to put her L.T.I. that too that too with the help of another had not been clarified by the propounder by any cogent and reliable evidence. Regarding the registration of the document, it appears that the L.T.I. of Suhashini Sen Gupta, the executrix was taken behind the back of the Sub-Registrar as he had made an endorsement to the effect that L.T.I. was taken behind curtain (Parda) and the source of knowledge to that effect is from Debesh Ranjanas as is revealed from his endorsement. It was no bodys case that Suhashini Sen Gupta was a pardanasin lady. She might not appear in the Court for giving deposition in any case as there was no necessity for that purpose but she was not a pardanasin lady as it could be found that she had no Parda before the Sub-Registrar at any time as she had gone to the Sub-Registrars Office five years back while registering the other Will (Ext. 1) in 1974. 1) in 1974. Further it could be found from the evidence of Bibhuti Bhushan Sen Gupta that before preparation of the Will, she alongwith her daughter being accompanied by Bibhuti Bhushan Sen Gupta had gone twice to her Advocate Mr. Mazumdar and a draft of the Will was prepared by Mr. Mazumdar but neither the draft had been proved nor Mr. Mazumdar had been examined in the case although Bibhuti Bhushan Sen Gupta had given an undertaking that he would produce Mr. Mazumdar as his witness in the case. Thus from the evidence it appears that her mother Suhashini Sen Gupta was never a pardanasin lady. Moreover when she had appeared before the attesting witnesses at the time of execution of the Will on 19.12.1979 there was no earthly reason as to why her L.T.I. had been taken behind the screen when the Sub-Registrar was present. Moreover there was no endorsement of the Sub-Registrar that the contents of the Will was explained to the executrix but such endorsement was given by Devesh Ranjan along who had also given the same certificate on 19.12.1979. Thus this suspicious circumstances of taking L.T.Is. of Suhashini Sen Gupta behind the screen could not be explained by the propounder nor it was explained as to why knowing to sing her name in Bengali, she had to put her L.T.I. on the Will. 12. It is a settle law that all suspicious circumstances are to be explained by the propounder and the burden very much lies on him and that burden has not been discharged in the present case. Moreover, this Devesh Ranjan and Satyabrata Das Gupta are not the relatives of the executrix or the propounderer but they took all initiatives in getting the Will executed but while they were not made the attesting witnesses, the reason has not been explained. Even Satyabrata Das Gupta has been withheld by the propounder in deposing in the case. Again the suspicious circumstances of taking of L.T.I. before the Sub-Registrar behind the screen could be well explained if the Sub-Registrar was called as a witness but he was not been brought for the reasons best known to the propounder. 13. Another circumstances appears from the Will on the fact of it that this Will has not made any mention regarding the earlier Will. 13. Another circumstances appears from the Will on the fact of it that this Will has not made any mention regarding the earlier Will. Only it was mentioned as is done in usual course the effect that the Will cancelled all provisions wills and codicils but no specific mention was there regarding the previous Will dated 11.10.1974. There was also no mention as to why the eldest son being an heir apparent had been deprived. Deprivation of heir-apparent may not be a ground of suspicion alone unless other grounds are there but it is a natural phenomenon to mention so when the testatrix is none but the mother. Diba Sen Gupta the spinster daughter of the testatrix who is also one of the beneficiaries under this Will (Ext. 2) had filed a partition suit regarding the disputed house property and she demanded her 1/4th share for partition and in that case both Shanti Bhushan Sen Gupta and Bibhuti Bhushan Sen Gupta were made parties. It appears that when the partition suit was filed Mirtunjay Ghatak for and on behalf of Shanti Bhushan Sen Gupta filed the other probate case on the basis of the Will dated 11.10.1974 and after the summons in that case were received by Bibhuti Bhushan Sen Gupta then he filed this probate case namely probate Case N0. 69 of 1983 for getting the letters of administration on the basis of the Will dated 19.12.1979, so the suspicion arises when one of the heirs of Suhashini Sen Gupta came up with partition suit then the two brothers came up with probate cases on the basis of their respective wills. What plea was taken by Bibhuti Bhushan Sen Gupta or Shanti Bhushan Sen Gupta in the partition suit filed by Diba Sen Gupta had not been stated by either of them. This fact of filing of partition suit by Diba Sen Gupta has come from the evidence of Shanti Bhushan Sen Gupta and the same has not been denied by Bibhuti Bhushan Sen Gupta. It really the Will dated 19.12.1979 was in existence on the date of filing of partition suit, them there was no necessity of filing the same. This fact of filing of partition suit by Diba Sen Gupta has come from the evidence of Shanti Bhushan Sen Gupta and the same has not been denied by Bibhuti Bhushan Sen Gupta. It really the Will dated 19.12.1979 was in existence on the date of filing of partition suit, them there was no necessity of filing the same. It is in evidence that Diba Sen Gupta was residing alongwith her brother at the relevant time at the quarter of Bibhuti Bhushan Sen Gupta, then there cannot be any scope to imagine that Diba Sen Gupta was totally ignorant about the execution of the Will. It is very natural and general in middle class family that when a spinster daughter resides with her old mother then that daughter remains very close to her mother and helps in doing her normal avocation that too when the mother is old and ailing. Bibhuti Bhushan Sen Gupta submitted that he was not present at the time of registration of the Will or execution of the same. This may be a plea to show that he was having any influence in the execution of the Will but again he had to admit that he had accompanied his mother and sister Diba Sen Gupta for making of draft of the Will to their Advocate Mr. Mazumdar. So Diba Sen Gupta was in complete knowledge of the Will and as such there was no cause for her to file partition suit rather she could had filed a probate case for the purpose of getting letters of administration as she is one of the beneficiaries to get 1/3rd share on bequeath in the suit property, while by partition and without the existence of any Will, she has to get only 1/4th share. This very strong circumstances regarding the execution and genuinity of the Will has not been explained in any way whatsoever. 14. Again it appears that the testatrix Suhashini Sen Gupta while in custody of Bibhuti Bhushan Sen Gupta gave a notice through her Advocate Mr. Mazumdar to Shanti Bhushan Sen Gupta for vacating the suit house as he alone was possessing the same. Nowhere in that notice she has stated anything about this Will (Ext. 2) or the previous Will (Ext. 1) regarding its revocation. The notice and the reply to it had been admitted in the case and exhibited. Mazumdar to Shanti Bhushan Sen Gupta for vacating the suit house as he alone was possessing the same. Nowhere in that notice she has stated anything about this Will (Ext. 2) or the previous Will (Ext. 1) regarding its revocation. The notice and the reply to it had been admitted in the case and exhibited. It appears from the notice and the reply given by Shanti Bhushan Sen Gupta that there is not a iota of mention of any of the wills from either side. This creates a grave doubt regarding the existence of the wills or even if such wills were made to be executed by Suhashini Sen Gupta, an old and illiterate lady, that was done by coercion and influence of the son. with whom she was residing. Such suspicious circumstance regarding the execution of the Will (Ext. 2) has not been clarified by the propounder and when such circumstance creates suspicion regarding execution of the Will (Ext. 2) as mentioned above, a Court of law must no tact on it when there is clear deprivation of one of the heirs-apparent without reasons whatsoever. Thus the following suspicious circumstances have not been explained by the propounder with regard to Will dated 19.12.1979 which has been marked as both Exts. B and 2 in the case: (1) Why the testator Suhashini Sen Gupta had put L.T.I. that too with the help of two different persons on two different dates although she was knowing to sing her name? (2) Why she was made to put her L.T.I. behind the scree? (3) Why two other attesting witnesses had been with-held? (4) Why Satyabiata Das Gupta and the Sub-Registrar were not produced? (5) Why the draft prepared for the Will has not been produced nor the typist who typed the same on the basis of draft had been withheld? (6) Why Diba Sen Gupta had filed partition suit for her 1/4th share even with the knowledge of the Will? (7) Why Mr. Mazumdar, Advocate, although undertaken to be examined has not been examined in the case? (8) Why Whole fact of 1st Will was totally suppressed in this Will? (6) Why Diba Sen Gupta had filed partition suit for her 1/4th share even with the knowledge of the Will? (7) Why Mr. Mazumdar, Advocate, although undertaken to be examined has not been examined in the case? (8) Why Whole fact of 1st Will was totally suppressed in this Will? When the these question marks go to the root of evidence and genuinity of the Will have not been explained by the propounder and the suspicious could not be dispelled from the mind of the Court, then the said Will cannot be enforced by a Court of law. 15. Now let me discuss about the 1st Will dated 11.10.1974 on the basis of which Probate Case No. 134 of 1982 had been filed. The applicant Mrityunjay Ghatak is an Advocate and he has been appointed an executor of the Will. He admitted that he had made the draft of the Will at the instance of the testatrix Suhashini Sen Gupta. But he is really an advocate of Shanti Bhushan Sen Gupta. He gave reply to the notice of Suhashini Sen Gupta on behalf of Shanti Bhushan Sen Gupta. The testatrix had no litigation as no such fact is there from either side and as such there was no need of her engaging a lawyer. From the above facts, it is clear that it was Shanti Bhushan who had engaged the Advocate to create the Will and at his instance, the Will was drafted, typed and then the Advocate concerned was made to be an executor so that Shanti Bhushan Sen Gupta could remain in safe side if dispute arises in future. In this Will also, there is deprivation of all the heirs-apparent seva and Shanti Bhushan Sen Gupta. The signature of the testatrix in the Will had not been denied and also its registering but at that time she was completely under the influence of her eldest son Shanti Bhushan Sen Gupta whom she had bequeathed. The Advocate concern was knowing that the testatrix had no title over the rest of thee property besides 8.5 Kathas at that time but he had included the property of others with motive or ill intention as alleged. The Advocate concern was knowing that the testatrix had no title over the rest of thee property besides 8.5 Kathas at that time but he had included the property of others with motive or ill intention as alleged. But this suspicion has not been explained from the side of propcunder Shanti Bhushan Sen Gupta who also wanted to conceal this fact of Will, when in reply to the notice he totally suppressed this factum of Will. The propounder also was a direct party to such concealment. There was a plea from the side of objectors that this Will was revoked in the year 1979 but that fact had not been proved nor any denial evidence is also there. But when a second Will was made then legally this Will has been revoked. But the second Will also is not found to be genuine and hence natural revocation is not there. But if Suhashini Sen Gupta had consciously and free Will had executed this Will, then she should have mentioned of its revocation in her notice given afterwards. Her definite desire was not there that the house property should exclusively go in favour of Shanti Bhushan Sen Gupta. At the time of execution and registration of this Will also, she was an old lady of 82 years having various diseases admittedly, she was then dependent on Shanti Bhushan Sen Gupta alone. There was no reason as to why she should deprive her spinster daughter or the widowed one. There is no explanation to it. Rather from her action afterwards could very well disclose her mind that she not inclined to bequeath the property in favour of Shanti Bhushan Sen Gupta alone. In this Will also, except one attesting witness, other has not been examined for the best reason known to the propounder. Deprivation of heirs-apparent had not been explained which creates grave doubt about the genuinity of the Will. 16. At the time of argument, Mr. B.P. Teterbe, appealing for and on behalf of the appellant submitted that Shanti Bhushan Sen Gupta is very much agreeable to get the property divided amongst the heirs of the executrix Suhashini Sen Gupta which means that he does not want to lay his claim more on the basis of this document (Ext. 1) to get the whole of the property in his favour. 1) to get the whole of the property in his favour. I have already mentioned that there is also suspicion regarding this document as in this document Suhashini Sen Gupta, the executrix, had mentioned her property on 11.10.1974 as 19.1/2 Kathas while admittedly on that date, Suhashini Sen Gupta had no more property more than 8.1/2 Kathas. This shows non-application of mind of the testatrix or by her mentor, the executor Mirtunjay Ghatak or his client-beneficiary Shanti Bhushan Sen Gupta. 17. It has been argued by Mrs. M.M. Pal, appearing on behalf of Bibhuti Bhushan Sen Gupta and her two sisters that this Ext. 1 is nothing but a colorable exercise of power by the executrix and it was definitely under the influence of Shanti Bhushan Sen Gupta. That Suhashini Sen Gupta did not want the whole property to be bequeathed in favour of Shanti Bhushan Sen Gupta afterwards can be very well found from the notice given by her asking Shanti Bhushan Sen Gupta to vacate her house/property. According to Mrs. Pal, this intention as revealed in the notice in be construed as a revocation of the Will (Ext. 1). Hence from the above discussion, even if it is found that Ext. 1 was executed by Suhashini Sen Gupta, yet she did not want to rely on it and her last wishes and desire is otherwise. Hence such Will cannot be acted upon as a last Will/desire of the testatrix. 18. Mr. Tetarbe has referred to the various judgments in his favour. According to him, when a Will has got no reference of the earlier Will, then that Will must be looked with suspicions. He has referred to the case of Brahampal Singh V/s. Smt. Ram Dulari and Ors., AIR 1981 NOC 32 A, Vijayben Vashram V/s. Stare of Gujarat and Ors. AIR 1982 Karnataka 198. Regarding giving of L.T.I. even with the knowlege of signing the Will must be construed to be suspicious one. He has referred to the case of Smt. Suro V/s. Sri Atma Singh and Ors. BBCJ 1992 (SC) 132. His further submission is that when challenge is there regarding the genuineness o the L.T.I. and execution of the Will itself then propounder must adduce evidence of expert to prove the execution and in absence of such experts evidence, the Will must be looked with suspicions. In Mrs. BBCJ 1992 (SC) 132. His further submission is that when challenge is there regarding the genuineness o the L.T.I. and execution of the Will itself then propounder must adduce evidence of expert to prove the execution and in absence of such experts evidence, the Will must be looked with suspicions. In Mrs. Sumangala T. Pax V/s. S. Sundareesa Pax and Ors. AIR 1991 Kerala 259, it has been held that only registration of the Will does not make the Will genuine, it must be that the executrix or the testatrix had the full knowlege about the execution of the document and that she was not influenced or incapable of understanding. As to the happenings of the matter in issue regarding the soundness of the mind of the testatrix during the course of execution of both the Will had not been proved by any of the parties by adducing proper medical evidence. Shanti Bhushan Sen Gupta had also admitted that his mother was lying ill because of old and she was under the treatment. He went to the extent or saying that his mother was hard of hearing and she had lost eye sight and not understood anything without the help of others and since how long her such conditions were prevailing has also not been mentioned by him which goes to create dobut regarding the execution of the Will (Ext. 1) also. This Will also suffers from the following dubious and suspicious circumstances: (1)The applicant Mritunjay Ghatak, being the lawyer of Shanti Bhushan Sen Gupta is the mentor of the Will. (2) The Will includes properties not owned by the testator and no explanation is there. (3) The testatrix did not have the knowlege of the Will as is revealed from the subsequent notices. (4) The testatrix was not in sound health and mind as is revealed from the evidence of Shanti Bhushan Sen Gupta and she was bereft of understanding. (5) The intention of testatrix was never to bequeath the whole property to Shanti Bhushan Sen Gupta as is revealed from subsequent facts. (6) No explanation is there for deprivation heirs-apparent. 19. (4) The testatrix was not in sound health and mind as is revealed from the evidence of Shanti Bhushan Sen Gupta and she was bereft of understanding. (5) The intention of testatrix was never to bequeath the whole property to Shanti Bhushan Sen Gupta as is revealed from subsequent facts. (6) No explanation is there for deprivation heirs-apparent. 19. Hence from all the circumstances as mentioned above and the evidence adduced, discussed above, I come to the finding that the two brothers, namely, Bibhuti Bhushan Sen Gupta and Shanti Bhushan Sen Gupta were at the draggers drawn to each other and taking advantage of the old age of their mother, they tried to grab the property on creation of the wills either by influence or by coercion. Regarding the Will (Ext. 2) the execution of the same is in total doubt and hence the learned Court below has wrongly held that both the wills were genuine rather, in my opinion, as per discussions made above, both the wills were in genuine and were created even if executed by testatrix not be free Will and mind and only by influence and as such none of those be acted upon as last desire of the testatrix according to law. 20. Hence Miscellaneous Appeal No. 84 of 1988(R) arising out of Probate Case No. 134 of 1982 is hereby dismissed while Miscellaneous Appeal No. 18 of 1989 (R) arising out of Probate Case No. 69 of 1983 is hereby allowed and both the Wills are hereby held to be in genuine and not fit to be acted upon. The property of the testatrix Suhashini Sen Gupta should be devolved in normal course to her legal heirs as per Dayabhag School of Hindu Succession Act. In the nature and circumstances of the case, there will be no order as to costs.