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2003 DIGILAW 435 (CAL)

TARA SUNDARI GHOSH (DEED. ), RAJENDRA NATH GHOSH v. SADHANA BALA BANERJEE

2003-08-28

ASIT KUMAR BISI

body2003
ASIT KUMAR BISI, J. ( 1 ) THIS suit arises out of an application for grant of probate of the Will dated 25th February, 1972 executed by Tara Sundari Ghosh in favour of the propounder rajendra Nath Ghosh (hereinafter referred to as the plaintiff ). Tara Sundari ghosh (hereinafter referred to as the testatrix) was suddenly found missing on and from 18th March, 1977 from her residence at 16, Rajendra Lai Street, p. S. Narikeldanga, Calcutta-6. The plaintiff is her only son and defendant No. 1 smt. Sadhana Bala Banerjee is her only daughter. As per the case of the plaintiff he spares no efforts and left no stone unturned for finding out her missing mother and inspite of all his searches he failed to find out his mother. The testatrix has not been heard of for seven years or more either by him or by those who would naturally have heard of her if she was alive and she is presumed to be dead in the eye of the law. During her lifetime the testatrix made and published her last Will and testament on 25th February, 1972 whereby she bequeathed her movable and immovable properties to the plaintiff and appointed the latter as executor of the said Will. The plaintiff is entitled to obtain probate of the Will dated 25th February, 1972 left by the testatrix. ( 2 ) DEFENDANT No. 1 Sadhana Bala Banerjee has contested the suit and resisted the application for grant of probate filed by the plaintiff by filing the written statement wherein it has been averred niter alia that Tara Sundari ghosh never executed any Will on 25. 2. 72 or on any date. It has been denied by defendant No. 1 that the alleged Will was made by the testatrix herself and that after hearing the contents of the alleged Will or realising or appreciating meaning, purport or implication of the alleged Will the testatrix executed the alleged Will in presence of the alleged witnesses. It is also denied that the alleged Will was registered on execution by the testatrix. It has been further averred by defendant No. 1 in her written statement that the alleged Will is not the Will of the alleged testatrix and the same is forged, fraudulent and created by the plaintiff in collusion with attesting witnesses in absence of the testatrix. It has been further averred by defendant No. 1 in her written statement that the alleged Will is not the Will of the alleged testatrix and the same is forged, fraudulent and created by the plaintiff in collusion with attesting witnesses in absence of the testatrix. It has been denied by defendant No. 1 that the alleged testatrix published the Will or appointed the plaintiff as executor. Further case of defendant No. 1 as made out in the written statement is that the testatrix had no physical or mental capacity to execute the Will nor she gave her L. T. I, or signature therein and as such there cannot be probate of the alleged Will which is an unnatural one. It has also been alleged by defendant No. 1 in the written statement that due to physical and mental torture perpetrated by the plaintiff on the alleged testatrix she lost complete balance of mind and left the house. The plaintiff caused her disappearance and/or death. ( 3 ) DEFENDANT No. 2 Sri Bomkesh Ghosh has not come to the contest the suit though he has filed the written statement wherein he has alleged inter alia that he is an unnecessary party in this proceeding as he is neither a legatee nor an heir in respect of the property left by the deceased. ( 4 ) ON pleadings of the contesting parties the following issues have been framed for the purpose of trial: 1. Is the plaintiff entitled to get declaration that the testatrix Tara Sundari ghosh has died and/or is presumed to be dead as prayed for in prayer (aa) of the application for grant of probate of the Will? 2. Did the testatrix have testamentary capacity to execute the Will dated 25. 2. 1972? 3. Was the Will made by the testatrix herself out of her own volition? 4. Could the testatrix appreciate the significance of the provisions made in the Will? ( 5 ) WAS the Will forged, fraudulent and created by the plaintiff in collusion with the attesting witnesses in absence of the testatrix as alleged by defendant No. 1 in paragraph 4 of her written statement? ( 6 ) DOES the Will appear to be unnatural as pleaded in paragraph 4 of the written statement filed by defendant No. 1? ( 7 ) IS the plaintiff entitled to get probate of the Will dated 25. 2. ( 6 ) DOES the Will appear to be unnatural as pleaded in paragraph 4 of the written statement filed by defendant No. 1? ( 7 ) IS the plaintiff entitled to get probate of the Will dated 25. 2. 1972 executed by the testatrix Tara Sundari Ghosh as prayed for? ( 8 ) TO what other relief, if any, is the plaintiff entitled? issue No. 1: 5. It appears from the application for grant ofprobate of the Will dated 25. 2. 72 left by the testatrix that the plaintiff has sought declaration that the testatrix Tara Sundari Ghosh has died and/or is presumed to be cjead and such declaration has been sought by the plaintiff by insertion of prayer (aa) in prayer portion of the application by way of amendment. 6. Section 108 of the Indian Evidence Act lays down that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it. The materials on record prove in convincing manner that the testatrix who was admittedly missing from her residence on and from March, 1977 has not been heard of for more than seven years by those who would naturally have heard of her if she had been alive and as such the presumption of death of the testatrix in the eye of law as envisaged under section 108 of the said Act obviously arises. The learned Advocate for defendant No. 1 has accepted this fact. Furthermore, prayer (aa) of the application for grant of probate of the Will with regard to death of the testatrix Tara Sundari Ghosh had already been decided on earlier occasion by the order dated 28. 1. 97 passed by Ranojit Kumar mitra, J. as His Lordship then was and the said finding has been accepted by the learned Advocate for the contesting defendant No. 1. This issue is accordingly decided in favour of the plaintiff. Issue Nos. 2 to 6. 7. Being interlinked all these issues are taken up together for consideration for the sake of convenience and brevity. 8. Admittedly the testatrix Tara Sundari Ghosh who left the Will was missing from March, 1977. This issue is accordingly decided in favour of the plaintiff. Issue Nos. 2 to 6. 7. Being interlinked all these issues are taken up together for consideration for the sake of convenience and brevity. 8. Admittedly the testatrix Tara Sundari Ghosh who left the Will was missing from March, 1977. As mentioned hereinabove, she had not been heard of for more than seven years by those who would naturally have heard of her if she had been alive and as such in the eye of law she is presumed to be dead. This fact is admitted by both the contesting parties. ( 9 ) PW. 1 Jyotirmoy Mitra, a solicitor practising in this Court, was one of the attesting witnesses of the Will executed by the testatrix during her lifetime. He has proved the Will which was executed and registered on 25. 2. 72 and marked as Exhibit 'a'. The said Will was written in Bengali. PW. 1 Jyotirmoy Mitra, gourmohan Ghosh and Monoranjan Saha were the attesting witnesses of the will. In answer to question Nos. 1 to 18 put to him in examination-in-chief pw. 1 Jyotirmoy Mitra has proved execution and attention of the Will by the testatrix and the attesting witnesses respectively as required under section 63 of the Indian Succession Act, 1925 and under section 68 of the Indian Evidence act, 1872. ( 10 ) SECTION 63 of the Indian Succession Act, 1925 lays down the legally required formalities to be observed in the execution and attestation of the Will. Those required formalities for the purpose of execution of the Will as prescribed under section 63 of the Indian Succession Act are enumerated as under : (a) The testator shall sign or shall affix his marks to the Will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. ( 11 ) THE mode of proof of execution of such Will is provided in section 68 of the Indian Evidence Act. It is settled law that the mode of proving a Will does not 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 as noted above. This well-settled principle of law which has been enunciated in a catena of reported decisions viz Guro vs. Atma Singh and Ors. , reported in 1992 (2) SCC 507 , Gurudas Chatterjee vs. Bijoy Krishna banerjee and Ors. , reported in 74 CWN 1041, Shashi Kumar Banerjee and Ors. vs. Subodh Kumar Banerjee, since deceased, his Legal Representatives and Ors. , reported in AIR 1964 SC 529 have been pointed out in the case of Srikanta mondal vs. Srikanta Mondal and Ors. , reported in 2003 (2) ICC 957 at page 960 (para 8 ). ( 12 ) MR. Kashinath De the learned Advocate for the plaintiff has contended that PW. 1 Jyotirmoy Mitra who is one of the attesting witnesses has duly proved the Will in accordance with section 63 of the Indian Succession Act and section 68 of the Indian Evidence Act. ( 12 ) MR. Kashinath De the learned Advocate for the plaintiff has contended that PW. 1 Jyotirmoy Mitra who is one of the attesting witnesses has duly proved the Will in accordance with section 63 of the Indian Succession Act and section 68 of the Indian Evidence Act. He has cited the case of Janki Narayan bhoir vs. Narayan Namdeo Kadam, reported in 2003 (2) SCC 91 , wherein at page 98 (para 10) the Supreme Court has held that if one attesting witness can prove execution of the Will in terms of clause (c) of section 63 of the Indian succession Act viz. attestation by two attesting witnesses in the manner contemplated therein, the examination of the other attesting witness can be dispensed with and the one attesting witness examined, in his evidence has to satisfy the attestation of a Will by him and the other attesting witness in order to prove that there was due execution of the Will. Mr. De has drawn my attention to the specific answers given by PW. 1 Jyotirmoy Mitra to question Nos. 2 to 18 in his evidence and contended that the evidence given by PW. 1 in this regard clearly indicates that execution and attestation of the Will has duly been proved by PW. 1. The answers to those questions given by PW. 1 Jyotirmoy Mitra in his deposition are quoted below :" (2) I am showing you a registered document. Kindly tell me what is this document? This is a Will executed by Tara Sundari Ghosh. (3) Do you find any signature of Tara Sundari Ghosh in this document (shown)?/yes, it is there. (4) Do you find any other signatures in this document (shown)?/my signature is there and the signatures of Gour Mohan Ghosh, brother of Tara Sundari, and Monranjan Saha are there. (5) Where was this document signed?/at my office. (6) Who signed the document first?/tara Sundari Ghosh. (7) And thereafter?/on her instruction I signed on the document and then gour Mohan Ghosh and Monoranjan Saha also signed. (8) Were all these persons at the same sitting?/yes. (9) And signed at the same sitting?/yes. (10) And in presence of each other?/yes. (11) How do you know Tara Sundari Ghsoh?/i was acquainted with her family from my boyhood. I used to go to their house and they used to come to our house. (8) Were all these persons at the same sitting?/yes. (9) And signed at the same sitting?/yes. (10) And in presence of each other?/yes. (11) How do you know Tara Sundari Ghsoh?/i was acquainted with her family from my boyhood. I used to go to their house and they used to come to our house. After I became a Solicitor they took advice from me from time to time. (12) Were all signatures made in the presence of Tara Sundari Ghosh?/yes. (13) And Tara Sundari Ghosh put her signature in the presence of other pesons?/yes. (14) Do you know who prepared this Will?/i prepared this under the instruction of Tara Sundari Ghosh. (15) And the Will has been prepared according to her wishes?/yes, (Will tendered and marked as Ext. A subject to translation in English ). (16) Do you know the second attesting witness Mr. Gour Mohan Ghosh?/ yes, he was the brother of Tara Sundari Ghsoh. (17) Do you know him from beforehand?/i knew him but not of much acquaintance as with the family of Tara Sundari Ghosh. (18) Is this a registered document?/after it was signed it was registered". ( 13 ) MR. De the learned Advocate for the plaintiff has contended that the said evidence of PW. 1 is absolutely unshaken in cross-examination. He has further urged that in cross-examination of PW. 1 the execution and the attestation of the Will and the circumstances under which the said Will was prepared and executed and also attested have been clearly proved. He has drawn my pointed attention to the answer given by PW. 1 to question No. 97 put in cross-examination which indicates how the Will was prepared and executed. It transpires from the answer given by PW. 1 to question No. 97 that prior to making of this Will the testatrix first came to his office and expressed that she wanted to make such a Will. PW. 1 prepared a draft and on the next day the testatrix came. PW. 1 wrote out the draft and asked her whether it was in conformity with her wish. She told him that it was so and thereafter it was prepared and on the next day she came whereupon the Will was executed. The answer given by PW. 1 to question No. 73 coupled with the relevant endorsement made at the bottom of the Will (Ext. She told him that it was so and thereafter it was prepared and on the next day she came whereupon the Will was executed. The answer given by PW. 1 to question No. 73 coupled with the relevant endorsement made at the bottom of the Will (Ext. 'a') indicates in clear terms that the contents of the said Will had been explained by PW. 1 Jyotirmoy Mitra to the testatrix. The evidence of PW. 1 further indicates that the propounder was not present at the time of execution of the Will. The answer given by PW. 1 to question No. 58 can be referred to in this context. It has been suggested to behalf of the defendant no. l to PW. 1 that the Will was prepared at the instance of the propounder and the evidence which has been given by PW. 1 was not acceptable. PW. 1 has totally denied it and categorically stated that the Will was prepared at the instance of the testatrix and the plaintiff Rajen Ghosh was nowhere then. In this context the answer given by PW. 1 to question No. 105 which was the last question put to him in cross-examination can be referred to. It appears from the evidence on record that Gour Mohan Ghosh who was one of the attesting witnesses of the Will was the brother of the testatrix. In answer to question No. 56 PW. 1 has stated that the testatrix along with her brother came to his office and approached him to prepare the Will. The answers given by the plaintiff (PW. 2) to question Nos. 133 to 135 indicate in clear terms that his maternal uncle Gour Mohan Ghosh is dead. As stated by PW. 1 Jyotirmoy Mitra in answer to question No. 102, Monoranjan Saha who is another attesting witness of the will is his clerk. ( 14 ) MR. Jyotish Ghosh the learned Advocate for defendant No. 1 has contended that a prepared Will was placed before the testatrix for her signature and PW. 1 was trying to shield the propounder by saying that he was not there at the material point of time. Mr. Ghosh has drawn my attention to the respective answers given by PW. 1 to question Nos. 56 to 59 wherefrom it appears that pw. 1 was trying to shield the propounder by saying that he was not there at the material point of time. Mr. Ghosh has drawn my attention to the respective answers given by PW. 1 to question Nos. 56 to 59 wherefrom it appears that pw. 1 has deposed that the testatrix along with her brother came to his office and visited his office in between 12 noon and 2 p. m. and the plaintiff Rajen ghosh was not present there. PW. 1 could not say how the testatrix knew his office address. Mr. Ghosh has drawn my attention to the fact that the Will marked as Ext. 'a' shows that it was registered at 1 p. m. on 25. 2. 72. He has urged that the above fact is to be considered along with the answer given by pw. 1 to question No. 99 where he admitted that he did not know Gour Mohan ghosh well but the testatrix told him that he was Gour Mohan Ghosh. He has further drawn my attention to the answer given by PW. 1 to question No. 60 wherefrom it appears that when PW. 1 was asked how long before this Will was executed the testatrix had come to his office, he replied 'no, never'. But on careful perusal of the evidence of PW. 1 in its entirety coupled with the other materials on record I find that the testatrix along with her brother Gour Mohan ghosh approached PW. 1 who is a veteran solicitor of this Court in the matter of preparation of the Will whereupon the Will-was prepared by PW. 1 according to the instruction of the testatrix and after preparation of the said Will at the instance of the testatrix the same was explained by him to the testatrix who duly executed it in presence of the attesting witnesses including PW. 1 and registered the same. The materials on record leave no room for scepticism that pw. 1 has duly proved execution and attestation of the said Will marked as ext. 'a'. The discrepancy in the evidence of PW. 1 which Mr. Ghosh the learned advocate for defendant No. 1 had endeavoured to point out cannot affect legality and validity of the said Will which was duly executed by the testatrix with full knowledge. ( 15 ) MR. 'a'. The discrepancy in the evidence of PW. 1 which Mr. Ghosh the learned advocate for defendant No. 1 had endeavoured to point out cannot affect legality and validity of the said Will which was duly executed by the testatrix with full knowledge. ( 15 ) MR. Ghosh the learned Advocate for defendant No. 1 has drawn my attention to the corrections made in two places of the Will and urged that such correction which is tantamount to alternation is required to be executed in like manner as is required for the execution of the Will in terms of section 71 of the indian Succession Act. Mr. De the learned Advocate for the plaintiff, on the other hand, has contended that the corrections in the two places of the Will (Ext. 'a') have been countersigned by the testatrix and in fact the Will remains unaltered even if those corrections are omitted. He has further argued that section 71 of the Indian Succession Act applies if any alternation is made in such Will after execution thereof and in the facts and circumstances of the case it has not been proved nor it has been suggested to PW. 1 that those corrections were made after execution. On consideration of the rival contentions raised by mr. Ghosh and Mr. De on this score I find sufficient force in the contention raised by Mr. De the learned Advocate for the plaintiff. It has rightly been pointed out by Mr. De that the Will (Ext. 'a') in fact remains unaltered even if those corrections countersigned by the testatrix are omitted. Since there is no alternation in the said Will after execution thereof, I find no merit in the contention raised by Mr. Ghosh the learned Advocate for defendant No. 1 in this regard. ( 16 ) IT appears that by the Will dated 25. 2. 72 marked as Ext. 'a' the testatrix bequeathed all her properties, movable or immovable, to her only son the plaintiff rajendra Nath Ghosh who has been appointed as executor of the said Will. The contents of the Will further indicate that defendant No. 1 Sadhana Bala Banerjee who was the only married daughter of the testatrix had received her share of the assets and properties and as such she was not given anything further. Mr. The contents of the Will further indicate that defendant No. 1 Sadhana Bala Banerjee who was the only married daughter of the testatrix had received her share of the assets and properties and as such she was not given anything further. Mr. Ghsoh has strenuously contended that the Will is the handiwork of the plaintiff and the testatrix did not have memory and intelligence to form a proper judgment regarding her disposition in the Will. He has drawn my attention to the answers given by DW. 2 Sadhana Banerjee to question Nos. 140, 141 and 142 wherefrom it appears that DW. 2 has stated that she had very cordial relationship with her mother and after her second marriage she herself, her husband and her children resided with her mother. In answer to question No. 146 DW. 2 has stated that her parents told her that the properties would be shared between her and her brother on 50 : 50 basis. Mr. Ghosh has further drawn my attention to the fact that when DW. 2 was shown the portion of the will wherein it was written that she was not given anything further since she received her share of the assets and properties to her satisfaction, her answer was that her mother could not do this. She has further stated that her mother knew that she had no place to stay. Mr. Ghosh has drawn my attention to the answer given by DW. 2 to question No. 83 in this regard. He has further referred to the relevant portion of the evidence of DW. 3 Kishorimohan Ghosh and pointed out that in answer to question Nos. 72 and 73 DW. 3 has stated that her niece dw. 2 did not have any place of her own to stay and the testatrix knew the situation. ( 17 ) IT has been argued by Mr. Ghosh the learned Advocate for defendant no. 1 that the plaintiff as son of the testatrix already had 2/3rd shares in 16 and 16/1 Rajendra Lal Street and half of more or less 13 cottahs and 13 chittaks in kankurgachi property and if the mother had given her daughter defendant No. 1 at least a flat in the 3-stroyed building at 16, Rajendra Lai Street the Will would not have been unnatural. ( 18 ) MR. ( 18 ) MR. De the learned Advocate for the plaintiff on the other hand, has contended that in the Will (Ext. 'a') defendant No. 1 being the daughter of the testatrix had been excluded on the ground that she had already got her share in the property. He has further drawn my attention to the admitted fact that the testatrix, her daughter and the propounder inherited the properties to equal share and the daughter sold her share and the propounder being the only son was given the share of the testatrix and as such there is nothing wrong in the statement made in the Will which is absolutely natural. In this context Mr. De has drawn my attention to the answer given by the plaintiff (PW. 1) to question no. 153 wherefrom it transpires that by virtue of the partition deed which had been executed by his mother on his behalf when he was 13 years old in the year 1958 he got 1/3rd share, his mother got 1/3rd share and his sister defendant No. 1 sadhana Banerjee got 1/3rd share of the properties and soon after execution of the partition deed for lack of money defendant No. 1 sold her 1/3rdshare in respect of 16 and 16/1 Rajendra Lal Street and the testatrix purchased the same on behalf of her son when the latter was minor. ( 19 ) ON hearing the rival contentions raised by Mr. De the learned Advocate for the plaintiff and Mr. Ghosh the learned Advocate for defendant No. 1 and considering the materials on record I find that the testatrix had testamentary capacity to execute the Will and the Will Ext. 'a' cannot be said to be an unnatural one. As mentioned hereinbefore, the evidence on record indicates that after obtaining 1/3rd share of the properties defendant No. 1 sold her share. It is settled law that the onus of proving the Will lies on the propounder and in absence of suspicious circumstances surrounding execution of the Will proof of testamentary capacity of the testator or testatrix, as the case may be, and the signature of the testator or testatrix as required by law is sufficient to discharge such onus. Reference can be made in this context to the case of Alok Kumar aich vs. Ashoke Kumar Aich and Ore. , reported in AIR 1982 Calcutta 599. Reference can be made in this context to the case of Alok Kumar aich vs. Ashoke Kumar Aich and Ore. , reported in AIR 1982 Calcutta 599. In the instant case I find that the said onus has been discharged by the plaintiff propounder. Even at the risk of repetition I may point out that PW. 1 Jyotirmoy mitra who is one of the attesting witnesses of the Will has duly proved execution and attention of the Will and his evidence remains unshaken in cross- examination. ( 20 ) MR. Ghosh the learned Advocate for defendant No. 1 has contended that the testatrix was lady of a little education and she had cordial relationship with her daughter defendant No. 1 and as such it was not natural for the testatrix to deprive her daughter of any share of her properties. He has further argued that since there was no provision for defendant No. 1 in the Will (Ext. 'a'), it can be said that the testatrix having a little education did not appreciate the significance of the provisions made in the Will. He has drawn my attention to the answers given by DW. 2 Sadhana Banerjee to question Nos. 20 to 28,79,81,192, 208 to 210 to show that the testatrix was taken out of the house by the plaintiff on the pretext of going to the doctor and thereafter the plaintiff forced her to put signature in the Will. My attention has also been drawn by mr. Ghosh to the answers given by DW. 4 Mira Dutta the younger sister of the testatrix to question Nos. 11, 12 and 13 where she has stated that when she asked her sister the testatrix where she was going, she replied that she was going to the doctor's place and subsequently when she visited her sister and enquired where she was going she replied that she was taken to a red house and made to sign some documents. It has been urged by Mr. Ghosh that such circumstances are suspicious in nature and go to show that no such Will was executed by the testatrix on her own volition with full knowledge of the contents thereof. Mr. It has been urged by Mr. Ghosh that such circumstances are suspicious in nature and go to show that no such Will was executed by the testatrix on her own volition with full knowledge of the contents thereof. Mr. De the learned Advocate for the plaintiff has contended, on the other hand, that in the course of her evidence defendant No. 1 has made out a new case which is contrary to the case made out in the written statement. On going through the contents of the written statement filed by defendant No. 1 and the evidence on record I find sufficient force in the above contention raised by Mr. De. It is curious to note that in para 4 of the written statement it has been specifically averred inter alia by defendant No. 1 that the testatrix had no physical or mental capacity to execute the Will nor she gave her LTI or signature therein. It has been further pleaded that the alleged Will is forged, fraudulent and created by the plaintiff in collusion with the attesting witnesses in absence of the testatrix. Nowhere in the four corners of the evidence of defendant No. 1 dw. 2 there is anything to indicate that the testatrix did not put her signature in the Will or the Will was created in absence of the testatrix. It has rightly been pointed out by Mr. De the learned Advocate for the plaintiff that in answer to question No. 28 defendant No. 1 (DW. 2) has stated that her mother told her that she had not been taken to the doctor but had been taken instead to a red building where she had been coerced to put signature on some documents whereas in answer to question No. 148 she has stated that her mother did not execute any Will, whatever Will has been produced in the Court is a handiwork of her brother. On careful perusal of the evidence of defendant No. 1 DW. 2 in its entirety I find that her evidence suffers from inherent contradictions and she has tried to make out a case in her evidence which has not been pleaded in her written statement. It is well-settled that particulars of fraud, coercion, misrepresentation or undue influence, as the case may be, must be pleaded in the plaint. In the case of Bishundeo Narain and Anr. vs. Seogeni Rai and Ors. It is well-settled that particulars of fraud, coercion, misrepresentation or undue influence, as the case may be, must be pleaded in the plaint. In the case of Bishundeo Narain and Anr. vs. Seogeni Rai and Ors. , reported in AIR 1951 Supreme Court 280 at page 283 (para 25), the Supreme court has held that if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. Particulars of fraud, misrepresentation or undue influence must be pleaded in the plaint in accordance with the mandatory requirements of Order 6 Rule 4 of the Code of Civil Procedure and there cannot be any departure from them in evidence. In the instant case I find that particulars of fraud, coercion and undue influence have not been pleaded by defendant No. 1 in her written statement and her evidence is glaringly divergent from the case pleaded in the written statement. ( 21 ) MR. Ghosh the learned Advocate for defendant No. 1 has laid much emphasis on deprivation of the daughter defendant No. 1 by her mother testatrix and made endeavour to show suspicious circumstances from the said fact. But such deprivation of the daughter by the testatrix should not raise any suspicion, because the whole idea behind execution of the Will is to interfere with the normal line of succession. Reference need be made in this context to the case of rabindranath Mukherjee and Anr. vs. Panchanan Banerjee (dead), by LRs. and ors. , reported in AIR 1995 Supreme Court 1684. In Ajit Chandra Majumdar vs. Akhil Chandra Majumdar, reported in AIR 1960 Calcutta 551 at page 556 (para 36), the Division Bench of this Court observed as under :"now in this case the testator had full physical and mental powers. He had a sound disposing mind. He had ample opportunities of independent advice of a Solicitor, a draft of a Will and also enough time to consider his disposition. We have also held that he was under no undue influence from Ajit. The disposition in the Will, and circumstances both antecedent and subsequent to the Will show that he deliberately chose the propounder. He had ample opportunities of independent advice of a Solicitor, a draft of a Will and also enough time to consider his disposition. We have also held that he was under no undue influence from Ajit. The disposition in the Will, and circumstances both antecedent and subsequent to the Will show that he deliberately chose the propounder. Therefore, he comes within the rule of the Privy Council that the injustice of the exclusion of other sons would not affect the validity of the disposition". ( 22 ) SUSPICION cannot take the place of legal proof. The law of evidence, as held by the Supreme Court in Madhukar D. Shende vs. Tarabai Aba Shedage, reported in AIR 2002 Supreme Court 637 at page 640 (para 8), does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. It has been further held by the Supreme Court in Madhukar D. Shende (supra) at page 640 (para 9) that if there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving a Will, the Court would not return a finding of 'not proved' merely on account of certain assumed suspicion or supposition. ( 23 ) HAVING regard to the principles of law enunciated in the decisions cited above and the facts and circumstances of the instant case emerging from the materials on record I find that the testatrix had testamentary capacity to execute the Will dated 25. 2. 72 and she herself executed the same on her own volition with full knowledge of the contents thereof. There is nothing credible on record to indicate that the said Will is not genuine or is an unnatural one. All these issues are decided accordingly in favour of the plaintiff. Issue Nos. 7 and 8 : ( 24 ) FOR the foregoing reasons I hold the plaintiff is entitled to get probate of the Will dated 25. 2. 72 executed by the testatrix Tara Sundari Ghosh in his favour. The suit is liable to be decreed in terms of prayer (a) of the application treated as plaint. Both the issues are accordingly decided in favour of the plaintiff. ( 25 ) IN the result the suit succeeds. 2. 72 executed by the testatrix Tara Sundari Ghosh in his favour. The suit is liable to be decreed in terms of prayer (a) of the application treated as plaint. Both the issues are accordingly decided in favour of the plaintiff. ( 25 ) IN the result the suit succeeds. ( 26 ) THE suit is accordingly decreed in terms of prayer (a) of the application for grant of probate of the Will. The probate of the Will dated 25th February, 1972 executed by the testatrix Tara Sundari Ghosh be granted to the plaintiff rajendra Nath Ghosh on payment of requisite Court-fees. Copy of the Will be annexed to the probate. In view of the facts and circumstances of the case I am disinclined to pass any order as to costs of the suit against the contesting defendant. Decree be drawn up expeditiously. Suit succeeds.