JUDGMENT The Court: The case concerns the grant of probate of a Will of Judistir Dutta, a reasonably wealthy spice merchant of Calcutta. 2. The Will was executed in July 1971. Judhistir died in 1978. 3. In the Court below probate was granted to the propounder being the Executrix Bhanumati Dutt, the second wife of Judhistir. 4. Sometime in the thirties Judhistir's first wife died leaving her surviving a son and a daughter named Rabindra and Anima. In the late thirties Judhistir married his second wife Bhanumati some 15 years younger than him. He had a son and a daughter again by his second wife they are Atanu and Arupa. 5. In the Will Bhanumati was granted life interest and Atanu was granted the rest of the absolute beneficial interest in practically all the properties of the deceased. Rabindra Nath Dutta was specifically mentioned as excluded. Thus the steep mother and the step brother got the property from Judhistir and Rabindra Nath Dutt, the Caveator was totaly excluded. This is as the will would appear to be from the point of view of the Caveator. 6. Rabindra's sister Anima also lodged a caveat but the case of the Caveatrix is much weaker than that of the Caveator because in this traditional North Calcutta Bengali family the daughters knew that they would not get much property and their brothers would get the property. 7. The probate application was made soon after Judhistir's death. The hearing of the probate matter went on from day to day and was concluded in 1984. The judgment in the case by grant of probate was delivered to fewer than five years after the hearing was concluded. Thus, although the hearing was over in 1984 the present judgment under appeal was made known and published in 1989. 8. Twice during this long, unsatisfactory and unexplained span of five years, the matter appeared as For Judgment in the list but those appearances were not fruitful. We are of the opinion that there being no satisfactory explanation of the long gap of five years which occurred between the conclusion of hearing and the delivery of judgment, the judgment itself can be said to be a product, not of the hearing, which was five years old. We are of the opinion that there being no satisfactory explanation of the long gap of five years which occurred between the conclusion of hearing and the delivery of judgment, the judgment itself can be said to be a product, not of the hearing, which was five years old. It might be a product of notes or a re-reading of the papers but in all reasonable human minds a five year old hearing will have last much of its impact. 9. If it were possible for us, we would have remanded the matter for fresh trial as soon as the unexplained gap of five years (which had occurred some three years before the concerned Judge's retirement) was brought to our notice but a re-trial now would be impossible. Why it would be impassible will appear from the facts which are stated below. When Judhistir died in 1978 he was full 70 years of age, as Rabindra said from the box. Therefore, in 1971 he was 63. At that time second wife was somewhere around 50 and Atanu was just under 18 years of age. The Will was attested by one B.N. Dutt, a long standing practising Solicitor and Advocate of this Court; he had known Judhistir for upwards of 40 years. He had also known Rabindra practically from the time of his birth. Unfortunately B.N. Dutta is now dead. He had come before the Court as the first witness called by the propounder. The other attesting witness to the Will was one Samarendra Nath Daw. He was Bhanumati's brother. Atanu has referred to him as his maternal uncle in his evidence. Samarendra Nath Daw did not come to the box but he died in the long span of five years i.e. during the period of reservation of the judgment. The porpounder had called only two witnesses i.e. B.N. Dutt and Atanu. The propounder Bhanumati has died during the pendency of the appeal and Atanu has been substituted in her place and stead. Bhanumati never came to the box. Rabindra Nath Dutt examined himself in support of his caveat He is also no longer alive. He has died some time around the delivery of the judgment, just a little before it actually got pronounced. Two other witnesses came to oppose the Will, one being a private tutor and another being the Caveatrix Anima. 10. Rabindra Nath Dutt examined himself in support of his caveat He is also no longer alive. He has died some time around the delivery of the judgment, just a little before it actually got pronounced. Two other witnesses came to oppose the Will, one being a private tutor and another being the Caveatrix Anima. 10. After this long passage of time and after so many deaths a retrial is out of the question. At this distance of time Judges can but look at the evidence which is recorded, as we have ourselves done. Calling of fresh witnesses who would be relevant and material is no longer possible. Watching the demeanour of the relevant important and material witnesses who have come before the first Court is neither possible for us nor possible on a re-trial because those who came cannot come again. 11. In the impugned judgment there is, understandably, absolutely no assistance to be found in the matter of any remark on the demeanour of the witnesses who came before the Court. 12. The main point of challenge to the Will is the point of its unnaturalness. The point arises in this way. The case of unnaturalness arises, according to Rabindra Nath Dutt because a son of the testator has been totally excluded, Indeed when a son or another person who is bound to succeed on intestate succession is totally excluded from receiving any benefits under a Will, under the Indian Law, it is treated as an unnatural Will. Not that an unnatural will necessarily fail. In many cases it does not. All that is needed, is to explain why the testator changed the normal proportion of succession. How much explanation is needed will depend• upon the facts and circumstances of each case. 13. The further case of Rabindra Nath Dutt is that at the time of making of the Will Judisthir lived with his second wife and Atanu away from the ancestral home. The ancestral home was at Amritalal Bose Street. Until 1968 Judhisthir lived there with his whole family. This family included Rabindra Nath Dutt and Rabindra Nath Dutt's family also, his wifr's name being Rama Dutt. In 1968 Judhisthir shifted to Sitaram Ghose Street. It was the case of both Rabindra and Atanu that at first Rabindra Nath and his wife also went with Judhisthir. Until 1968 Judhisthir lived there with his whole family. This family included Rabindra Nath Dutt and Rabindra Nath Dutt's family also, his wifr's name being Rama Dutt. In 1968 Judhisthir shifted to Sitaram Ghose Street. It was the case of both Rabindra and Atanu that at first Rabindra Nath and his wife also went with Judhisthir. Rabindra said from the box that they lived with Judhisthir for six months and then came away to Amritlal Bose Street, the old residence, Atanu said that Rabindra Dutt and his wife lived for only 2 or 3 days. On a balance of probabilities it appears that when somebody shifted with his wife, the stay, even if temporary was more likely to be of at least a few weeks. Be that as it may, thereafter Judhisthir Dutt, Bhanumati and their children only lived at Sitaram Ghose Street. 14. The situation is, therefore, a classic one where the step mother might well wish to exclude children of the husband by the first wife. It is to be noted that we do not say that this must necessarily be the case. But we do say that it is a practical and a reasonable possibility, of which the probate court should not lose sight altogether. 15. In 1968 Judhisthir prepared a Will for execution but it was not executed. In this Will he left his spice business to Rabindra Nath Dutt and the rest to, if we might use the expression, Bhanumati's group. Then came 1971. Around the month of May, Judhisthir prepared another Will in English but this again was not executed or finalized. This was prepared through B.N. Dutt himself who was the engaged solicitor for the Will in question also. Again in this May 1971 Will Judhisthir left his spice business to Rabindra Nath and the rest to Bhanumati and Atanu. 16. Just six days after this 1971 Will in English had been made ready, Judhisthir Dutt apparently changed his mind. He came to B.N. Dutt's residence on two successive sundays. These visits are noted by B.N. Dutt on the next respective Mondays in his day book. These were exhibited. The instruction of Judhisthir, after the fateful six days were over, was that this time, he wanted to exclude his son Rabindra Nath Dutt altogether. 17. He came to B.N. Dutt's residence on two successive sundays. These visits are noted by B.N. Dutt on the next respective Mondays in his day book. These were exhibited. The instruction of Judhisthir, after the fateful six days were over, was that this time, he wanted to exclude his son Rabindra Nath Dutt altogether. 17. The evidence of B.N. Dutt given from the box is that he suggested that if exclusion of Rabindra is intended the Will should be done in Bengali. To the query whether one could not exclude a natural heir in the English language just effectively as in Bengali or not, B.N. Dutt replied that if the exclusion were made in Bengali there would be no problem of explaining. 18. It should be mentioned here that Judhisthir Dutta was not a matriculate. He read up to Class VI or VII. But the case that he did not know the English language is totally unacceptable. He always signed in English. He has affirmed affidavits and petitions before this Court in English. He has been involved in a lot of litigations. It is impossible to take this view on a reasonable conspectus that if a Will were drafted in English or signed in English he would have had any difficulty or understanding. 19. So, six days after Judhisthir Dutta changed his mind, he gave instructions for drawing of the Will in Bengali, this time excluding Rabindra Nath altogether. B.N. Dutt drew up the Will. The instructions are not separately noted on any contemporaneous sheet of paper. The Bengali typing was done by using the services of a typist sitting on the pavements of the old Post Office Street. The draft was taken away by Judhisthir. Between the taking away of the draft Will and its execution and attestation there elapsed some one month and a half. The draft Will was approved by writing of two Bengali words "MANZUR KARILAM (I approve)". 20. At the time of execution and attestation there came to the office of B.N. Dutt, along with Judhisthir Dutta, his brother-in-law Samarendra Nath Dawn. In spite of B.N. Dutt's previous long association with Judhisthir he had never seen Samarendra Nath Dawn before. In his evidence he consistently referred to him as "the other gentleman". 20. At the time of execution and attestation there came to the office of B.N. Dutt, along with Judhisthir Dutta, his brother-in-law Samarendra Nath Dawn. In spite of B.N. Dutt's previous long association with Judhisthir he had never seen Samarendra Nath Dawn before. In his evidence he consistently referred to him as "the other gentleman". Naturally if somebody has never seen Samarendra Nath Dawn before, and he signs as Samarendra Nath Dawn, the most guarded and accurate way of expressing it would be to say that the other gentleman signed as the other attesting witness. This is exactly what B.N. Dutt said. B.N. Dutt was asked if he knew why Judhisthir was disinheriting Rabindra Nath. He said he did not ask. 21. In the Will it is mentioned that Rabindra Nath is doing his own spice business and is earning quite well. Also that by the behaviour of Rabindra Nath Dutt, Judhisthir feels insulted. That is why he has left nothing to Rabindra Nath Dutt. 22. The point which has troubled us very deeply is why within six days time the same Rabindra Nath Dutt is excluded by the mentioning of all these reasons when he had been the beneficiary of the spice business in two contemplated Wills of 1968 and of 1971. What happened in the six days which altered, the mind of Judhisthir Dutta? 23. We have always had to bear in our minds that Judhisthir Dutta living alone with his second wife and their children. In 1971 Rabindra Nath had gone away. Was Bhanumati influencing Judhisthir's Will by pestering him to exclude Rabindra Nath from getting any benefits? Or was she doing nothing of the sort? Had Judhisthir changed his mind of his own volition within the important six days and Bhanumati had no role to play? 24. If no evidence is given and the situation of the testator living with the second wife alone is left as such then, taking a practical view of the matter, the judicial mind will have to infer that the second wife might very well try to influence the husband and then again she might not actually try to do it. In other words, the judicial mind will be in two minds. 25. In a situation like this, where there is a mystery or a puzzle, the probate court asks for the clarification from the profounder. In other words, the judicial mind will be in two minds. 25. In a situation like this, where there is a mystery or a puzzle, the probate court asks for the clarification from the profounder. There are three important points for the probate court to consider in the matter of a grant. The first is the due execution and attestation of the Will. The second is the testamentary capacity and mental health of the testator at the time of execution. The third is the free agency of the testator, i.e. whether the Will was truly the testator's Will and testament or was it somebody else's Will which the testator was making out as his own. 26. Where there is mystery or suspicion pointing towards the absence of any of these factors, viz. execution capacity or own volition, the probate court asks for a clearing up of the mystery and a removal of suspicion. In our case the execution and attestation are beyond suspicion. Indeed Rabindra Nath Dutt tried to throw doubts on the signature of his father from the box but those doubts are in no way reasonable one. The probate court is not concerned with any and every doubt which might be thrown by the caveator, but only with reasonable ones. 27. The mental health and capacity of Judhistir Dutta in July 1971, is also beyond dispute. He was physically fit and able to go out on his own. He had arthritis, but could climb stairs. He was able to handle money himself, may be with the aid of his driver. He was able to understand usual legal matters very well. He participated in litigation by filing papers for several years after 1971. The capacity of Judhistir Dutta is beyond any suspicion or mystery. 28. The finger of suspicion in this case points towards the involvement of Bhanumati and if it does not point in that direction, it points nowhere at all. 29. The six days we have mentioned above are to be looked at in this light. It is possible that at the instance of Bhanumati, and at the last moment, when the Will was about to reach the stage of finalisation from the stage of mere preparation and contemplation, Judhistir finally had to exclude Rabindranath Dutta. 29. The six days we have mentioned above are to be looked at in this light. It is possible that at the instance of Bhanumati, and at the last moment, when the Will was about to reach the stage of finalisation from the stage of mere preparation and contemplation, Judhistir finally had to exclude Rabindranath Dutta. It might be quite the reverse and Judhistir excluded Rabindra Nath Dutta on his own and because of the reasons given in the Will. Let us examine, what materials the Court has before it to explain away this mystery of the sudden change within six days. 30. A spice business Rabindra Nath Dutta had started, at the earliest in 1970. He called this Company "Krishna Chandra Dutta Cookme Pvt. Ltd." He was a shareholder there and so was his father, Judhistir Dutta, Judhistir's business was, amongst others, carried through the Company of Krishna Chandra Dutta Spice Pvt. Ltd. How much was Rabindra Nath Dutta earning on his own through his Company on the basis of the shares owned by him? How much was Judhistir Dutta earning through his Spice business? We do not really know. Facts and figures have not surfaced. We only know that Rabindra Nath Dutta had started his own business and the business of the father and the son were not, factory-wise and god own wise at totally separate places. 31. What about the insult by Judhistir? There is absolutely no believable incident which took place in the six days which could generate this statement in the will. About embitterment of relationship between father and son at or around this time, Atanu had an explanation to offer from the box. He gave this answer in cross-examination and not in his examination-in-chief. It is a long answer, about two pages in the typewritten Paper Book. He mentioned that near the god own at 8, Kashipur Road, there was an incident and he saw Rabindra Nath Dutta about to assault Judhistir Dutta. One Banerjee Babu came and intervened. There is not a word of this incident to be found in any of the contemporaneous documents or affidavits. When Rabindra Nath Dutta was put a question about this incident, he said "what a lie it is!" We are absolutely unable to believe this incident related on the spur of the moment by Atanu Dutta. 32. There is not a word of this incident to be found in any of the contemporaneous documents or affidavits. When Rabindra Nath Dutta was put a question about this incident, he said "what a lie it is!" We are absolutely unable to believe this incident related on the spur of the moment by Atanu Dutta. 32. What is the finding of the Court below in regard to the possible embitterment between Judhistir Dutta and Rabindra Nath Dutta which might have led to the exclusion? It has been remarked in the judgment that, that embitterment is quite clear because there is a criminal complaint made by Judhistir against Rabindra Nath Dutta. Also there is acrimonious correspondence showing embitterment of relationship between Judhistir and his daughter-in-law, Rama. We are sorry to mention that these alleged facts were invented by the Judge during the five years judgment was reserved. There was no criminal complaint of which we have seen any evidence. There was no correspondence acrimonious or otherwise disclosing the relationship of embitterment between Judhistir and Rama. Affidavits and petitions there were, but correspondence there was none. We pointedly asked about this singular lapse contained in the judgment again and again. We have been very ably assisted by the learned Advocates of both sides and although the Paper Books were searched and researched, the non-existent criminal complaint and the non-existent bunch acrimonious correspondence, could not be unearthed. The simple reason is that those are not there. 33. On behalf of the propounder, it was stated that after 1971, the relationship between judhistir Dutta and Rabindra Nath Dutta went on worsening. In 1973, Judhistir even filed a Contempt Petition against Rabindra nath Dutta for unauthorized use of the name "Cookme". There was other litigation also in which Rabindra Nath Dutta and Rama were adversaries. On behalf of Rabindra Nath Dutta, it was submitted that some of this litigation at least, especially one regarding a room in a piece of property at Maharshi Devendra Road was alleged by the 'same-generation-co-sharers' of Judhirtir as being collusively maintained by Rabindra Nath Dutta and Rama as against Judhisthir for helping him. These co-sharers are Gangadhar and Bibhuti Bhusan who were also residing at the ancestral home at Amritalal Bose Street. 34. The propounder's case was that Judhistir came away from the ancestral home to be away from these persons. These co-sharers are Gangadhar and Bibhuti Bhusan who were also residing at the ancestral home at Amritalal Bose Street. 34. The propounder's case was that Judhistir came away from the ancestral home to be away from these persons. Rabindra Nath Dutta's case was that Judhistir came away with Bhanmati and Bhanmati caused the poisoning of Judhistir's mind against the children by his first wife. 35. So do we yet get the explanation for the change of mind in six days? The answer must be, not yet. Surely the best person able to explain away the mystery would be Bhanumati Dutta herself, but she chose not to come to the box at all. An application for her examination on Commission was opposed and then rejected. The hearing was concluded in 1984. Bhanumati would be above 60 years of age then. She died 13 years later in 1997. In anywar to one question, Atanu said that Bhanumati is ill. Of the sort of illness, how long has it gone on for, whether she is unable to attend Court on the basis of medical reports and certificates,-the matter did not reach this degree of detailed inquiry. We are of the opinion that Bhanumati chose not to come to the box in open Court. That she chose not to explain away points of dissatisfaction, mystery or suspicion, must go against her. 36. The next point requiring explanation is the knowledge of Bhanumati and Atanu about the Will from 1971 to 1978. The case which has been run is that the will became known to them after the death of the teastaor, and therefore, no suspicion can attach to the beneficiary of the ground of his or her being involved in the matter of preparation, execution or registration of the will. 37. Bhanumati and Atanu were absent from B.N. Dutta's office. The will was registered the same day as it was executed. B.N. Dutta did not go to the Registry office. Judhistir Dutta took away the receipt from B.N. Dutta and collected the will back from the registry himself. There is no sign of Bhanumati or Atanu at the office of the Registrar also. So their case was that they were ignorant of the will and they have no explanation to make regarding their involvement with its execution or registration. 38. When did they come to know of the will? There is no sign of Bhanumati or Atanu at the office of the Registrar also. So their case was that they were ignorant of the will and they have no explanation to make regarding their involvement with its execution or registration. 38. When did they come to know of the will? Atanu said that after Judhistir's death, Samarendra Nath Daw, said that the will must be in Judhistir's room; then a trunk was pointed out in which Judhistir kept all his papers. The will came out of the trunk. Before the will came out of the trunk Bhanumati and Atanu never knew about it. 39. We feel deeply suspicious about this case run by the propounder and her son. There are two main reasons for this suspicion. Samarendra Nath Dawn knew of the will in 1971. He attested the will and he was also present at the registry. He was the maternal uncle of Atanu and Bhanumati's brother. We have absolutely no evidence, why neither Bhanumati nor Atanu came to know of the will from Samarendra Nath dawn. If the propounder were to maintain her case of absolute ignorance of the will until it was found out after her husband's death; and if she wanted to maintain this case inspite of the heavy involvement of her own brother at the stage of execution and registration of the will, she had some explanation to offer. The smooth relationship existing between Atanu, Bhanumati and Samarendra Nath Dawn has come out in evidence. Samarendra Nath Dawn knew that the will was at least very probably in the trunk of Judhistir. Why should Samarendra Nath Dawn keep silent for seven years over the matter which was important to Bhanumati and Atanu? If Samarendra Nath Dawn had been called to the box, he might have explained by saying that Judhistir wanted him to keep it a secret. But Samarendra Nath Dawn never came to the box. Bhanumati never came to the box. She might have explained too why the secret kept by Samarendra Nath Dawn was the most natural and the most expected thing to happen in the circumstances of their household. But she never came to the box. The Court therefore is left with an unexplained mystery on an important point. Bhanumati never came to the box. She might have explained too why the secret kept by Samarendra Nath Dawn was the most natural and the most expected thing to happen in the circumstances of their household. But she never came to the box. The Court therefore is left with an unexplained mystery on an important point. It is important because if Bhanumati and Atanu knew of the will from Samarendra nath Dawn, then they have run a very wrong case before the Probate Court and cannot get probate. 40. Another pointer to the possible knowledge of Bhanumati and Atanu prior to Judhistir's death of the Will is Ext. 'E'. It is a document signed by Judhisthir in March 1978. It is a most peculiar document. This is addressed to nobody. It states that Judhisthir has no connection with his children by the first wife. The lack of connection is so much that after Judhisthir's death the children by the first wife will not even be able to utter Judhisthir's name. The document also says that there will be no alteration in the Will. 41. This document come from the custody of the propounder. It was proved by Atanu. Only one question was asked in examination-in-chief. That proved the document. No question was asked on this document in Atanu's cross-examination. This exhibit 'E' was not shown to Rabindra Nath Dutt at all. 42. The court is left in this most unsatisfactory state of mystery in regard to Ext. 'E'. If the propounder had known of exhibit 'E' when it was signed, that is in March 1978, she would have read about a Will. She might have asked Judhisthir about the Will. Why Judhisthir should be inimically disposed towards his daughter by the first wife as much as towards his son by the first wife is also not explained. Again that is the tenor of the document. The court might well suspect on a practical and ordinary view of the matter that the step-mother wanted a written declaration of animosity against her two step-children by Judhisthir before his demise. The facts might be otherwise also. But no explanation has come from the propounder in this regard. 43. The caveatrix, Anima came to the box. Although Rabindra was not shown Ext. 'E', Anima was. The facts might be otherwise also. But no explanation has come from the propounder in this regard. 43. The caveatrix, Anima came to the box. Although Rabindra was not shown Ext. 'E', Anima was. She vehemently denied that there was any reason why her father should declare that she has no connection with him and should not even utter his name after his death. We have found no cogent reason why Ext. 'E' should be taken as a voluntary writing of Judhisthir, Judhisthir expressing his own hatred against his daughter Anima. Since the document mentions a Will, we feel a mystery to be existing as to whether this document gave Bhanumati and Atanu and idea that there was a Will and whether they got this idea quite a few months before Judhisthir's death. 44. The case law regarding grant of probate is reasonably well settled. Mr. Bachwwat appearing for respondent relied on the judgment of Visount Haldane delivered in the case of Craig vs. Lamoureux AIR 1919 P.C. 132. He said so on that basis that once it is proved that a Will has been executed with due solemnities by a person of competent understanding and apparently free-agent, the burden of proving that it was executed under undue influence rests on the party who alleges this. Mr. Bachawat submitted that execution and mental capacity being beyond challenge Rabindra Nath had to show indue influence of Bhnumati. Mr. Bachawat said that there was absolutely no positive evidence in this regard. He gave us also two Supreme Court cases, those of Beni Chand and Smt. Sushila Devi, respectively reported at AIR 1977 SC 63 and AIR 1971 SC 2236 . In first of these two cases the aged testatrix had totally disinherited her son and her grandsons through her son's third wife and left everything to others in the group of the first two wives of the son, the very first one being dead. From first of the two cases, Mr. Bachawat placed paragraphs 9 and 10 and from the second he placed paragraph 5. We find from these portions the statement of law that if a Will is prima facie unnatural and there are gravely suspicious circumstances, even there, the propounder by giving an explanation can obtain a probate. The court is not to insist on mathematical proof or be obdurate in disbelief. We find from these portions the statement of law that if a Will is prima facie unnatural and there are gravely suspicious circumstances, even there, the propounder by giving an explanation can obtain a probate. The court is not to insist on mathematical proof or be obdurate in disbelief. The court can have a reasonable skepticism about an unnatural Will and be vigilant, cautious and circumspect, but that is all. Also the court has to scrutinize the evidence in support of execution to a greater degree where the Will is unnatural, but in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and signature of the testator as required by law may be sufficient to discharge the onus of the propounder. If there are suspicious circumstances the propounder would have to explain those. Relying, amongst others, on these cases Mr. Bachawat emphasized due execution, attestation and the unchallengeable mental capacity of Judhisthir. He submitted that when these are proved, the machinations of Bhanumati must be shown to be present by the caveator and the caveator has shown nothing in this regard at all. 45. Mr. Ghosh for appellants gave us first the case of Carapiet reported at AIR 1960 Cal 359 and showed the paragraph where it has been said that the probate court will jealously examine and scrutinize the circumstances of execution of a Will. He then gave as the root case of Tyrrell 1891-4 All E.R. 1120 and placed the judgment of Lindely L. J. He said that the ratio and the guidance laid down here has been followed again and again, the rule is that wherever circumstances exist which excite the suspicion of the court and whatever their nature may be, it is for those who propound the Will, as to which the suspicion arises, to remove such suspicion or doubt, and to prove affirmatively that the testator knew and approved of the contents of the document. We have noted passages from Tristram and Coots's Probate Practice relied upon by Mr. Bchawat to the effect that the Will cannot be said to be a voluntary Will if the mind of the testator runs in this way, like, I do not want to do this, but I must. 46. Mr. We have noted passages from Tristram and Coots's Probate Practice relied upon by Mr. Bchawat to the effect that the Will cannot be said to be a voluntary Will if the mind of the testator runs in this way, like, I do not want to do this, but I must. 46. Mr. Ghosh cited several other cases and then last of all a judgment of Sir Asutosh Mukherjee delivered in the case of Prasannamoyee reported at 25 CWN 779. Again, in this judgment, there are indications here that, unless a well-grounded suspicion of the Probate Court is dispelled, probate cannot be granted. 47. Applying these cases and also drawing upon our own experience we might say a few words about the practical law of grant of probate in the Probate Court. In a contested Will case it is usually seen that facts run into very great details. From this mass of facts the Court has to find out reasonable answers to three points which we have already mentioned above. These three points are, was there due execution and attestation, did the testator have sufficient mental capacity and health and did the testator make the will on his own volition as his last Will and Testament. To these three questions the Court must give an affirmative answer in each case. The Court must give this answer according to the Court's conscience. This conscience is brought to bear upon the facts and circumstances of each different case. The Court has to take a practical view of the facts. The Court should not shut its eyes to practical realities which are well-known or even reasonable to assume. It is on this reasonable basis that courts have asked for explanations in regard to unnatural Wills which exclude expected heirs on intestacy. The witnesses first go into the box on behalf of the propounder. The grounds of challenge are known from the caveat. The propounder must satisfy the Court about execution, mental capacity and free volition. The propounder must see to it that the Court in its conscienced is made free and able to grant probate when the case is over. The Court must not be left with any reasonable and sufficient mystery or suspicion on any of the three points. If capacity and free volition are proved and yet there is a mystery or suspicion about due execution, probate has to be refused. The Court must not be left with any reasonable and sufficient mystery or suspicion on any of the three points. If capacity and free volition are proved and yet there is a mystery or suspicion about due execution, probate has to be refused. Similarly, if there is due execution and mental capacity and yet a reasonable suspicion is entertained about the free volition of the testator, even in that case probate has to be refused. 48. In our case, execution and mental capacity are beyond question. We therefore are compelled to ask ourselves whether in good conscience we can grant probate by ruling out the challenge of Rabindra Nath that Judhisthir did not freely and voluntarily bring about the Will of 1971 but that it was a result of poisoning of his mind by Bhanumati. If we are in two minds, if we think that Bhanumati might well have done it by her persuasions and pressure during the six days which elapsed between the previous contemplated Will and the Will in question which is sought to be probated, if we think that we can reasonably suspect on the basis of presence of Samarendra Nath Dawn and the peculiar exhibit being Ext. 'E' that Bhanumati and Atanu knew of the Will from the very beginning but only pretended ignorance of it so that the burden of involved beneficiaries is not cast upon them, if we are in two minds about these points of major importance, then we cannot say that the mystery and suspicion attendant upon the Will sought to be probated have been completely explained away or removed. If we are in two minds, in short, as to whether Bhanumati did or did not influence the mind of Judhisthir in the matter of bringing about the Will propounded, if the possible involvement, persuasion or pressure of Bhanumati might reasonably be suspected to be present and not explained away as absent altogether, then and in that event we cannot in good conscience grant probate, In our opinion, in this case we cannot in good conscience grant probate. 49. Mr. 49. Mr. Bachawat also argued that as Judhisthir Dutta made his Will in 1971, and he had lived quite an active life for 7 years thereafter; had the Will not been Judhisthir Dutta's own wish, and the expression of his own wish, Judhisthir would surely have altered the Will in this long period of time. That he did not do so is a positive and strong indication of the conclusion that Judisthir's Will of July 1971 expressed his own wish and desire. 50. Mr. Bachawat repeated this argument and place a lot of emphasis on it. In support of this argument, he showed us a Supreme Court Case being that of a Will probate, reported on AIR 1985, Supreme Court 500 (Satya Pal's case). There in the judgment of O. Chinnappa reddy J. at pate 503, right cloumn, bottom, there is indeed a line to the effect that (in the facts and circumstances of that case) the fact that the testator did not alter the will for some 4 years or so, should have dispelled the suspicion in the mind of the court. 51. Indeed, here, the non-alteration of the Will for 7 years, is a factor in favour of Mr. Bachawat's client. But whether it is a conclusive or a swaying factor or not, must be judged only by means of weighing this factor along with other special features and circumstances of the particular case which we have in hand. 52. Although the making of a secret will, and thereby cancellation of all previous will, is the easiest of things to a lawyer who knows the details and complications of the law of will, yet to a layman, the matter is not so simple. To a non-matriculate like Judisthir Dutta, who always approached a solicitor for the making of his will, any alteration of the will or revocation of it by making a later will, would also have to be done by a fresh approach to a solicitor, or an advocate. It would not then any longer necessarily remain a secret will. May be, the registered will would be altered on advice by a later registered will again May be not. It would not then any longer necessarily remain a secret will. May be, the registered will would be altered on advice by a later registered will again May be not. If the Court's suspicion is, that Judhisthir Dutta's second wife Bhanumati Dutta dominated his will, then that suspicion is not much removed by the non-making of a later will by Judhisthir; this is because, if the domination of Bhanumati was there in 1971, it continued to be there in 1978 also. As between Judhisthir and Bhanumati things did materially after in the seven years. 53. The Court might well labour under the apprehension, that such domination, if present seven years before Judhisthir Dutt's death, could only increase as the time of Judhisthir's death approached and he necessarily became weaker and more dependent on his wife. Of course, this is in the realm of conjecture and suspicion. In a commercial Court, such arguments to watch jealously over the circumstances surrounding the will and the Judges have to scrutinize those circumstances. If on scrutiny, reasonable suspicion, or reasonable apprehension of domination of the testators' will by another is present, the Judge of the Probate Court must ask for dispelling of all suspicion by he propounder. 54. If, as in our case, the propounder merely says by argument that Judhisthir Dutta did not make a later will and therefore, his earlier will must be his own wish and volition, the Probate Judge will immediately think that is not a necessarily a sufficient answer at all; during seven years, Bhanumati remained as much the second wife of Judhisthir Dutta as she was, when the will was made; circumstances did not change at all. On the other hand, about a year before Judhisthir Dutta's death, Judhisthir Dutta, Bhanumati and their children again shifted residence. They went from Sitaram Ghosh Street to Bagbazar. Atanu married some time in the month of December, 1977. This time Judhisthir Dutta was not shifting away from residence with his brothers Gangadhar and Bibhutibhusan. He was shifting residence with his second wife, the propounder and her son, all by themselves. 58. It is at the Bagbazar residence that Ext. 'E' was executed. Exhibit 'E' does not show that Judhisthir Dutta was doing everything on his own volition. Why should he then make out that his relationship with Anima was embittered beyond repair? It must. He was shifting residence with his second wife, the propounder and her son, all by themselves. 58. It is at the Bagbazar residence that Ext. 'E' was executed. Exhibit 'E' does not show that Judhisthir Dutta was doing everything on his own volition. Why should he then make out that his relationship with Anima was embittered beyond repair? It must. therefore, be concluded, that if Judhisthir was under Bhanumati's domination in 1971, which might well have been the case, he was under the same domination of his second wife in 1978, the year of his death. Thus, domination in the usual course (suspectedly) went on increasing, as the years passed. If the case is otherwise, the propounder should have shown it to Court or at least given enough indication of it by adducing cogent evidence. Instead of doing this, she herself stayed away from the box. The Court was not given an opportunity to asses if her personality was of a domineering type in the witness box, where she was not seen by anybody. However, we must also remember that had Mrs. Padma Khastagir (as now) seen the personality of Bhanumati and yet reserved her Judgment for five years, not much impression of it would remain with her in any event. 55. Mr. Bachawat raised a point about limitation. He said that at the time of presentation of the Memorandum of Appeal it was undertaken that within the period of limitation the certified copy of the judgment and decree would also be filed. On the Original Side of our Court we accept a Memorandum of Appeal for the purpose of hearing a stay of application allowing the filing of the certified copy of the judgment and decree later on. We find that the certified copy of the decree has not been filed though the judgment has been. It is a technical point but a point all the same. We accept Mr. Ghose's explanation that the settlement of the decree took place upon notice to the erstwhile Advocate-on-Record of the Caveator, Mr. R.N. Ghose deceased, and no notice came from the Department to the present Advocate on Record Mr. Sujit Basu. It is also an unfortunate fact that the entire documents relating to this case are untraceable at present. We accept Mr. Ghose's explanation that the settlement of the decree took place upon notice to the erstwhile Advocate-on-Record of the Caveator, Mr. R.N. Ghose deceased, and no notice came from the Department to the present Advocate on Record Mr. Sujit Basu. It is also an unfortunate fact that the entire documents relating to this case are untraceable at present. Just one or two days before we started hearing the appeal, the room containing documents and papers relating to Will cases was handed over by the outgoing Hon'ble Chief Justice to the Bar Association and a room in the Centenary Building which is in our court, an annexure, was allotted for storing probate case records. We wanted to look at the Will and the original documents but none of the documents is traceable. A photocopy of the Will, as handed up by Mr. Bachawat, be kept on record countersigned. In this state of the records, undesirable though such state might be, we cannot dismiss an otherwise sound appeal on the technical point of the certified copy of the decree not being filed in time. 60. We direct that the certified copy of the decree be filed hereafter as and when available. In the meantime the judgment will have to serve the purpose. We dispense with the undertaking regarding filing of decree and list of dates hereafter expecting for the above direction for filing of the certified copy of the decree. 61. The case was heard in the Court below for some 20 days. We have heard the appeal for six days. The appellants will be entitled to the costs in the Court below and before us compendiously assessed at Rs. 1,25,000/-. The appeal is allowed. The judgment and decree appealed from are set aside probate is refused. Letters of Administration are also refused. The application for probate shall stand dismissed. 62. Stay of operation of this judgment and decree is prayed for but the prayer is refused. Appeal allowed.