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2008 DIGILAW 311 (GAU)

Deepak Kumar Das v. Parbati Das

2008-04-29

T.NANDAKUMAR SINGH

body2008
JUDGMENT T.N.K. Singh, J. 1. This appeal under Section 299 of the Indian Succession Act, read with Order 41, Rules 1 and 2 of the Code of Civil Procedure, 1908 is directed against the judgment and decree dated 18.7.2003 in Title Suit No. 14 of 2001 arising out of Misc. (Probate) Case No. 69/2000 passed by the learned District Judge, Sonitpur, Tezpur, dismissing the application of the appellants for grant of probate of the registered will dated 9.11.1998 executed by their late uncle Kamakhya Das for bequeathing his moveable and Immovable properties and also all service benefits like provident fund dues, gratuity and the bonus etc. and all his money, etc., in favour of the appellants. 2. Heard Mr. T.C. Khetri, learned senior Counsel appearing for the appellants and also Mr. S.C. Biswas, learned Counsel appearing for the respondent. 3. The brief facts, which are necessary to dispose of this appeal, are recapitulated as under: 4. The present case relates to the will dated 9.11.1998 executed by late Kamakhya Das, S/o late Badal Das in favour of the appellants. Late Kamakhya Das expired on 14.11.1999 at the age of 47 years at Ward No. 2, Rangapara Town, Mouza - Balipara, P.O. and PS. Rangapara, District Sonitpur, Assam. Late Kamakhya Das was Hindu by religion and he was serving as Painter under N.F. Railway at Rangapara North, Rangapara. The appellants are the sons of late Jagadish Prasad Das who is the elder brother of late Kamakhya Das and late Jagadish Prasad Das expired on 16.12.1999 at Rangapara. The respondent Smt. Parbati Das married with late Kamakhya Das on 27.5.1996. But after few days of their marriage, the respondent deserted the company of late Kamakhya Das. The respondent also filed the petition under Section 125, Cr.PC being Misc. Case No. 74/97 in the Court of the Additional Chief Judicial Magistrate, Tezpur. The learned Additional Chief Judicial Magistrate, passed an order in the said Misc. Case No. 74/97 directing late Kamakhya Das to pay maintenance for Rs. 400 per month to the respondent. It is also stated that the respondent failed to discharge her duties as wife to her husband late Kamakhya Das. 5. Late Kamakhya Das, after he was deserted by the respondent, Smt. Parbati Das, had resided with the appellants and the members of their family. The members of their family consist of their mother Smt. Sona Devi, alias Sonia Das. It is also stated that the respondent failed to discharge her duties as wife to her husband late Kamakhya Das. 5. Late Kamakhya Das, after he was deserted by the respondent, Smt. Parbati Das, had resided with the appellants and the members of their family. The members of their family consist of their mother Smt. Sona Devi, alias Sonia Das. Late Kamakhya Das executed the said will dated 9.11.1998 according to his free will and consent in favour of the appellants in the presence of two witnesses Shri Deba Brata Bos (PW4) and Shri Rajkumar Das (PW2) in the office of the Sub-Registrar, Tezpur and registered the will being No. 18 for the year of 1998 of Tezpur Sub-Registry Office. In the said registered will dated 9.11.1998, late Kamakhya Das expressed his will that the appellants shall get all his moveable and Immovable properties and all his service benefits like provident fund dues, gratuity and bonus etc. and all his money. Late Kamakhya Das was in good health and mentally sound at the time of execution of the registered will dated 9.11.1998 in favour of the appellants. Late Kamakhya Das also had sworn an affidavit dated 21.11.1998 (Ext-6) in support of the said registered will dated 9.11.1998. In that affidavit late Kamakhya Das expressed his desire that the Railway Department should note about the said will. Late Kamakhya Das under his letter dated 12.4.1999 (Ext-3) informed the authorities of the N.F. Railway, Rangapara North about the execution of the said will dated 9.11.1998 in favour of the appellants and also under the said letter late Kamakhya Das requested the authorities of the N.F. Railway to record the present appellants as his nominees in his service record and that they should get all the service benefits payable to him if he died before his retirement. Hence, the application under Section 276 of the Indian Succession Act, 1925 being Misc. (Probate) Case No. 69 of 2000 in the Court of District Judge, Sonitpur, Tezpur which was subsequently registered as Title Suit No. 14 of 2001 of the Court of District Judge, Sonitpur, Tezpur. 6. Respondent Smt. Parbati Das filed a written objection to the Misc. (Probate) Case No. 69/2000. The respondent Smt. Parbati Das in her objection stated that she is a legally married wife of late Kamakhya Das with whom she got married on 27.5.96 as per Hindu rites and rituals. 6. Respondent Smt. Parbati Das filed a written objection to the Misc. (Probate) Case No. 69/2000. The respondent Smt. Parbati Das in her objection stated that she is a legally married wife of late Kamakhya Das with whom she got married on 27.5.96 as per Hindu rites and rituals. After marriage, they were leading happily married life which lasted only for a year. Late Kamakhya Das had illicit relation with his sister-in-law Smt. Sona Devi alias Sonai Das, wife of his elder brother late Jagadish Prasad Das. Late Kamakhya Das also residing with his sister-in-law Sona Devi and the appellants in the house of the appellants. Because of illicit relation of late Kamakhya Das with his sister-in-law Sona Devi, he (Late Kamakhya Das) was under compulsion to maintain his sister-in-law Sona Devi and her children, i.e., the present appellants. Smt. Sona Devi with whom Late Kamakhya Das had illicit relation had pressured late Kamakhya Das to execute the said registered will dated 9.11.1998 in favour of the appellants and as such the said registered will dated 9.11.1998 was not executed with the free will of late Kamakhya Das and also that Kamakhya Das was not in good physical condition and also not mentally sound at the time of the execution of the said registered will dated 9.11.1998. The said registered will was executed in a suspicion circumstances. 7. The appellants adduced four (4) PWs i.e. namely - PW-1, Deepak Kumar Das, PW-2, Shri Raj Kumar Das (Attesting witness) of the registered will date 9.11.1998, PW-3, Tapan Paul (scribe of the registered will) dated 9.11.1998 and the PW-4, Deba Brata Bose (attesting witness) of the registered sale deed. The appellants also produced the said affidavit dated 21.11.1998 (Ext.3) sworn by late Kamakhya Das. In support of the registered will dated 9.11.1998 late Kamakhya Das sent the said letter dated 12.4.1999 informing the execution of the said registered will date 9.11.1998 to the authorities of the N.F. Railway, Rangapara North. The respondent adduced four (4) DWs, namely, DW1, Smt. Parbati Das (the respondent herself), DW-2, Smt. Radhika Rajbor, younger sister of the respondent, DW-3, Sri Subhash Ch. Mandal, an employee of the N.F. Railway and DW-4, Shri Biren Ch. Bora, Secretary of Majdoor Union, Rangapara Branch. 8. The respondent adduced four (4) DWs, namely, DW1, Smt. Parbati Das (the respondent herself), DW-2, Smt. Radhika Rajbor, younger sister of the respondent, DW-3, Sri Subhash Ch. Mandal, an employee of the N.F. Railway and DW-4, Shri Biren Ch. Bora, Secretary of Majdoor Union, Rangapara Branch. 8. The learned District Judge, Sonitpur, Teszpur in the impugned judgment anoMecree dated 18.7.2003 made findings that the allegation against late Kamakhya Das for having illicit relation with his sister-in-law Sona Devi, i.e., mother of the appellants are found true and the presumption could be made that influence could have been exerted on ailing Kamakhya Das to execute the said registered will dated 9.11.1998 and under such circumstances it could be inferred that late Kamakhya Das made the said registered will dated 9.11.1998 under influence of Smt. Sona Devi while Kamakhya Das was staying in their house in the last days of his life. After such findings, the learned District Judge, Sonitpur, Tezpur held that said registered will dated 9.11.1998 is not genuine. In the result the suit was dismissed vide impugned judgment and decree dated 18.7.2003. 9. The Apex Court in Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 held that the judgment of the First Appellate Court must display concise application of mind and record findings supported by reasons. The Apex Court is of the similar view regarding the duties of the First Appellate Court in Madhukar and Ors. v. Sangram and Ors. (2001) 4 SCC 756 . 10. The will is required to be attested by two or more, witnesses under Section 63 of the Indian Succession Act, 1925. Section 68 of the Indian Evidence Act, 1872 mentioned the requirements of the document required by the law to be attested to be fulfilled for using it as evidence. v. Sangram and Ors. (2001) 4 SCC 756 . 10. The will is required to be attested by two or more, witnesses under Section 63 of the Indian Succession Act, 1925. Section 68 of the Indian Evidence Act, 1872 mentioned the requirements of the document required by the law to be attested to be fulfilled for using it as evidence. For ready reference, Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872 are quoted hereunder: Section 63 of the Indian Succession Act, 1925: Execution of unprivileged Wills - Every testator, not being a soldier employed in an expedition or engaged in actual warfare or an airman so employed or engaged or a mariner at sea, shall execute his will according to the following rules: (a) The testator shall sign or shall affix his mark 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. (c) This will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will for 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 acknowledgment 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. Section 68 of the Indian Evidence Act, 1872: Proof of execution of document required by law to be attested - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied. Under Clause (c) of Section 63 of the Indian Succession Act, 1925, will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will and the witness shall sign 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. Therefore, two attesting witnesses shall not be necessary to be present at the same time. 11. Hon'ble Mr. Justice S.B. Sinha in Benga Behera and Anr. v. Braja Kishore Nanda and Ors. (2007) 9 SCC 728 observed that- 40. It is now well settled that requirement of the proof of execution of a will is the same as in case of certain other documents, for example gift or mortgage. The law requires that the proof of execution of a will has to be attested at least by two witnesses. At least one attesting witness has to be examined to prove execution and attestation of the will. Further, it is to be proved that the executant had signed and/or given his thumb impression in presence of at least two attesting witnesses and the attesting witnesses had put their signatures in presence of the executant. See Madhukar D. Shende v. Tarabai Aba Shedage, Janki Narayan Bhoir v. Narayan Namdeo Kadam and Bhagat Ram v. Suresh. 12. The Apex Court in Bhagat Ram and Anr. v. Suresh and Ors. See Madhukar D. Shende v. Tarabai Aba Shedage, Janki Narayan Bhoir v. Narayan Namdeo Kadam and Bhagat Ram v. Suresh. 12. The Apex Court in Bhagat Ram and Anr. v. Suresh and Ors. (2003) 12 SCC 35 held that a will has to be proved as required by the main part of Section 68 of the Indian Evidence Act, 1872 inasmuch as under proviso to Section 68 it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will. Para, 12 of SCC in Bhagat Ram and Anr. (supra) reads as follows: 12. According to Section 68 of the Evidence Act, 1872, a document required by law to be attested, which a will is, shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if available to depose and amenable to the process of the court. The proviso inserted in Section 68 by Act 31 of 1926 dispenses with the mandatory requirement of calling an attesting witness in proof of the execution of any document to which Section 68applies if it has been registered in accordance with the provisions of the Indian Registration Act, 1908 unless its execution by the person by whom it purports to have been executed is specifically denied. However, a will is excepted from the operation of the proviso. A will has to be proved as required by the main part of Section 68. It is true that Section63 of the Succession Act does not specifically speak of codicils and that omission has prompted the learned Counsel for the appellants to urge that the applicability of Section 63 above said should be treated as confined to the execution of wills only. A codicil need not necessarily be attested and, therefore, a codicil need not be proved in the manner contemplated by the main part of Section 68 of the Evidence Act; a codicil will attract applicability of the provision, submitted the learned Counsel for the appellants. In our opinion, such a submission cannot be countenanced. Williams states in The Law of Wills, Vol. I (1987 edn.): Codicils which in form and execution are similar to a will are useful for the purpose of making slight alterations to a will, such as a change of executors or deleting some specific gift. In our opinion, such a submission cannot be countenanced. Williams states in The Law of Wills, Vol. I (1987 edn.): Codicils which in form and execution are similar to a will are useful for the purpose of making slight alterations to a will, such as a change of executors or deleting some specific gift. Codicils may be used for making any alteration in a will, but it is so easy to fail to see that a substantial alteration so made will affect parts of the will other than that intended to be affected, that it is a wise practical rule to execute a new will whenever any substantial alteration is intended. It may, in cases of urgency, be more practical to execute a codicil than to prepare a new...the codicil is executed and attested in the same way as a will. Execution of codicil - The same rules apply as in the case of wills, (at p. 161) 13. PW-2, Rajkumar Das (attesting witness) deposed that he knows the appellant. He and late Kamakhya Das first approached the petition writer/deed writer and asked the deed writer to write a will for late kamakhya Das. Late Kamakhya Das was a healthy person and his mental condition was sharp at the time of the execution of the said registered will dated 9.11.1998. The scribe drafted the said will as per dictation of late Kamakhya Das. He introduced late Kamakhya Das to the Sub-Registrar. Late Kamakhya Das put his signature on the said registered will in his presence and he also put his signature on the said will in the presence of late Kamakhya Das. He also further deposed that the said registered will dated 9.11.1998 was executed by late Kamakhya Das at his own volition and none put pressure on him for execution of the said registered will. Kamakhya Das died after one year of the execution of the will. In his cross-examination, he stated r that he was the lone attesting witness to the said will. After marriage, Kamakhya Das lived with his wife Parbati Das for about 2/3 months. PW-4 Deba Brata Bose (attesting witness) deposed that on 9.11.1998 Kamakhya Das executed the said registered will dated 9.11.1998 bequeathing all his moveable and Immovable properties and the service benefits in favour of the appellants and the will was registered at Tezpur Sub-Registrar Office. After marriage, Kamakhya Das lived with his wife Parbati Das for about 2/3 months. PW-4 Deba Brata Bose (attesting witness) deposed that on 9.11.1998 Kamakhya Das executed the said registered will dated 9.11.1998 bequeathing all his moveable and Immovable properties and the service benefits in favour of the appellants and the will was registered at Tezpur Sub-Registrar Office. Late Kamakhya Das in his presence put his signature in the said registered will. He further deposed that Shri Raj Kumar Das, PW-2 was also the attesting witness of the said registered with deed. He also further stated that before executing the said registered will dated 9.11.1998, late Kamakhya Das had have consultation with him 2/3 times in his house at Rangapara stating that his wife Parbati Das (respondent) had deserted him as such he wanted to execute the will in favour of the appellants. He further stated that after writing the said will dated 9.11.1998 late Kamakhya Das himself had gone through the will and thereafter he put his signature on the will in his presence. At the time of executing the will Kamakhya Das was both mentally and physically fit to execute the will and after execution of the will dated 9.11.1998, Kamakhya Das also informed the execution of his will dated 9.11.1998 to the authorities of the N.F. Railway, under his letter and also on 21.11.1998. Late Kamakhya Das also sworn an affidavit dated 21.11.1998 before the Magistrate First Class and he signed as identifier in the said affidavit dated 9.11.1998 (Ext-6). He also identified his signature, i.e., Ext-6(3) on the said affidavit and also the signatures of late Kamakhya Das on the said affidavit dated 21.11.1998, i.e., Ext-6(1), 6(2) and 6(3) which were signed in the presence of the Magistrate. PW-4 also identified the signature of Kamakhya Das, which was signed on the said registered sale deed Ext-2 in his presence. PW-3, Shri Tapan Paul (scribe of the registered will dated 9.11.1998) deposed that in the year 1998 he was working as petition writer in the Tezpur Court. He had drafted the will dated 9.11.1998 as per instruction of late Kamakhya Das. After writing the will dated 9.11.1998, (Ext-2), he read over the same to Kamakhya Das in the presence of the attesting witnesses. He had drafted the will dated 9.11.1998 as per instruction of late Kamakhya Das. After writing the will dated 9.11.1998, (Ext-2), he read over the same to Kamakhya Das in the presence of the attesting witnesses. Kamakhya Das put his signature on the will dated 9.11.1998 in his presence and also the two attesting witnesses also signed on the will in his presence. At the time of executing the will dated 9.11.1998, the state of mind of late Kamakhya Das was fit for executing the will. In the cross-examination, he stated that he cannot state the time when he took Kamakhya Das and the said two attesting witnesses to the Sub-Registrar Office for registration of the will dated 9.11.1998. PW-1, Deepak Kumar Das (appellant No. 1) deposed that late Kamakhya Das is his uncle and he is the younger brother of his father late Jogendra Prasad Das. Late Kamakhya Das was an employee of the N.F. Railway, Rangapara as Painter in the PWD Department of the N.F. Railway, Rangapara. His uncle late Kamakhya Das used to stay along with him and the members of his family prior to his marriage. He married in the year 1996 and after two months of his marriage, he started living separately as his wife Smt. Parbati Das (respondent) left him. After his wife left his uncle late Kamakhya Das his uncle started living with them in their house. Late Kamakhya Das does not have any issue out of his marriage with Smt. Parbati Das. Late Kamakhya Das executed the will dated 9.11.1998 in his favour and his younger brother Prakash Kumar Das (appellant No. 2). At the time of executioner the will, late Kamakhya Das was healthy and made the will at his own accord. After executing the will dated 9.11.1998, Kamakhya Das informed the authorities of the N.F. Railway about the execution of the will dated 9.11.1998 in their favour. He also exhibited the letter dated 12.4.1999 written by late Kamakhya Das informing the execution of the will dated 9.11.1998 in their favour to the authorities of the N.F. Railway, Rangapara North. 14. DW-1, Smt. Parbati Das (respondent) deposed that late Kamakhya Das was her husband. She married with Kamakhya Das on 27.5.1996 as per Hindu rites and rituals. She lived with Kamakhya Das in the Railway quarter for about one and half years. 14. DW-1, Smt. Parbati Das (respondent) deposed that late Kamakhya Das was her husband. She married with Kamakhya Das on 27.5.1996 as per Hindu rites and rituals. She lived with Kamakhya Das in the Railway quarter for about one and half years. After marriage, he found that her husband late Kamakhya Das used to take alcoholic drink. After-taking drink, he used to ill-treat her and also that her husband sister-in-law Smt. Sona Devi also ill-treated her. Her husband late Kamakhya Das did not stay with her and his sister-in-law' also prevented him from staying with her. Late Kamakhya Das died on 14.11.1999. She also filed maintenance case under Section 125, Cr.PC against her husband late Kamakhya Das. The learned court also passed order directing late Kamakhya Das to pay maintenance in her favour. But he did not give the maintenance to her in spite of the court's order. She also stated that she is drawing the pension benefit of late Kamakhya Das. Later on, she came to know that late Kamakhya Das executed the will dated 9.11.1998 in favour of her husband's nephews i.e. the present appellants. Both mental and physical condition of her husband fate Kamakhya Das was not good and her husband was not physically fit to know what he sighed on the will dated 9.11.1998. PW-1, i.e., respondent herself in her statement before the Court never stated that late Kamakhya Das had illicit relation with his sister-in-law, i.e., Smt. Sona Devi. She also did not state that the will dated 9.11.1998 was executed by her late husband under the influence of his sister-in-law Smt. Sona Devi or under compulsion because of his illicit relation with his sister-in-law. DW-2. Smt. Radhika Rajbor who is the younger sister of the respondent Smt. Parbati Das stated that her brother-in-law late Kamakhya Das had a habit of alcoholic drinks. After taking drinks late Kamakhya Das and his sister-in-law used to torture her sister, i.e., (respondent) both mentally and physically. She further stated that she was told by her sister that late Kamakhya Das hadillicit relation with his sister-in-law. Prior to the death of her brother-in-law late Kamakhya Das, he was suffering from ailment due to his excessive drinking and his liver was damaged. The registered will dated 9.11.1998 was executed by late Kamakhya Das under pressure from the present appellants, their mother Sonai Devi. DW-3 Subhas Ch. Prior to the death of her brother-in-law late Kamakhya Das, he was suffering from ailment due to his excessive drinking and his liver was damaged. The registered will dated 9.11.1998 was executed by late Kamakhya Das under pressure from the present appellants, their mother Sonai Devi. DW-3 Subhas Ch. Mandal deposed that nominee of the deceased is entitled to service benefit, any will execute by the deceased will have no bearing on the service benefit of the deceased. The respondent Smt. Parbati Das has been drawing pensionary benefit after the death of her husband. DW-4, Biren Ch. Bora stated that he was a Secretary of the Majdoor Union, Rangapara Branch and also that Parbati Das used to tell his wife that her husband Kamakhya Das had illicit relation with his sister-in-law Sona Devi. 15. On the careful perusal of the statement of the PWs, it is clear that the appellants had successfully discharged their burden of proving the registered will dated 9.11.1998.and also that late Kamakhya Das was healthy and his mental condition was sound at the time of the execution of the registered will dated 9.11.1998, The requirement of proving the will dated 9.11.1998 under main part of Section 68 of the Indian Evidence Act were fulfilled by the PW-2, Rajkumar Das (attesting witness) PW-3, Tapal Paul scribe of the will and PW-4, Deba Brata Bose (attesting witness of the will) and also requirements for proving the attestation contemplated in Section 63 of the Indian Succession Act, 1925 are also fulfilled by the PW-2, PW-3 and PW-4 inasmuch as statement of PW-2, Rajkumar Das (attesting witness) in his cross-examination stated that he was lone witness at the time of execution of the said registered will dated 9.11.1998 by late Kamakhya Das will be of no consequence as under Section 63(3) of the Indian Succession Act, it shall not be necessary that more than one witnesses be present at the time of attestation of the will. The only requirements are that will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will and each of the witnesses shall sign the will in the presence of the testator. 16. The only requirements are that will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will and each of the witnesses shall sign the will in the presence of the testator. 16. The respondent had utterly failed to prove her case that late Kamakhya Das executed the will dated 9.11.1998 under compulsion because of his illicit relation with his sister-in-law inasmuch as the respondent when she was examined as PW-1 did not even state that late Kamakhya Das had illicit relation with his sister-in-law. The respondent also further failed to prove her case that the said will dated 9.11.1998 was executed by late Kamakhya Das in the suspicion circumstances. The Apex Court in Niranjan Umeshchandra Joshi v. Mridula Jyoti Rao and Ors. (2006) 13 SCC 433 held that there is a distinction where the suspicions are well founded and the cases where there are only suspicions alone, The existence of suspicious circumstances alone cannot be sufficient. The court may not start with a suspicion and it should not close its eye to find the truth. The Apex Court in B. Venkatamuni v. C.J. Ayodhya Ram Singh and Ors. (2006) 13 SCC 449 held that while arriving to a finding as to whether the will was duly executed, the court must satisfy its conscious having regard to the totality of the circumstances of the particular case. This Court, having regard to the totality of the circumstances of the present case, is of the considered view that the mere suspicion circumstances alleged by the respondent is not sufficient for coming to the finding that the will dated 9.11.1998 was executed in the suspicion circumstances which will persuade that late Kamakhya Das did not execute the registered will deed dated 9.11.1998 at his own accord and his will in the said registered will dated 9.11.1998 is not his free will. 17. The Apex Court in Gurdev Kaur and Ors. v. Kaki and Ors. (2007) 1 SCC 546 held that the contents of the will have to be appreciated in the context of his circumstances and not vis-a-vis the rules for intestate succession, the court does not substitute its own opinion for what was the testator's the will or intention as manifested from a reading of the written instrument. v. Kaki and Ors. (2007) 1 SCC 546 held that the contents of the will have to be appreciated in the context of his circumstances and not vis-a-vis the rules for intestate succession, the court does not substitute its own opinion for what was the testator's the will or intention as manifested from a reading of the written instrument. Para 2, 78 and 79 of the SCC in Gurdev Kaur and Ors. (supra) are quoted hereunder: 2. Judges must administer law according to the provisions of law. It is the bounden duty of judges to discern legislative intention in the process of adjudication. Justice administered according to individual's whim, desire, inclination and notion of justice would lead to confusion, disorder and chaos. 78. The learned Single Judge of the High Court has not even properly appreciated the context of the circumstances. The contents of the will have to be appreciated in the context of has circumstances, and not vis-a-vis the Rules for intestate succession. It is only for this limited purpose that the court examines the nature of bequest. The court does not substitute its own opinion for what was the testator's will or intention as manifested from a reading of the written instrument. After all, a will is meant to be an expression of his desire and, therefore, may result in disinheritance of some and grant to another. In the instant case, wife of the testator Bhagwan Kaur alone had lived with the deceased and only she had looked after him throughout his life. The other daughters were all happily married a long time ago and in their weddings the testator had spent huge amount of money. In his own words, he had spent more than what they would have got in their respective shares out of testator's property. 79. If a will appears on the face of it to have been duly executed and attested in accordance with the requirements of the statute, a presumption of due execution and attestation applies. 18. In the application under Section 276 of the Indian Succession Act, 1925 filed by the present appellant for granting of probate of the registered will dated 9.11.1998, it is clearly mentioned that the appellants would be entitled in law for Rs. 18. In the application under Section 276 of the Indian Succession Act, 1925 filed by the present appellant for granting of probate of the registered will dated 9.11.1998, it is clearly mentioned that the appellants would be entitled in law for Rs. 1,03,36 (Rupees one lakh three thousand three hundred thirty-six) only in view of the said registered will dated 9.11.1998 executed by late Kamakhya Das inasmuch as the Divisional Railway Manager (P) Ajipurduar Junction vide his letter No. FS/22-E/99 dated 18.4.2000 informed the final settlement of dues of late Kamakhya Das as under: (i) RF. Amount Rs. 26,000.00 (Approx) (ii) Death Gratuity Rs. 72,336.00 (Approx) (iii) Leave Salary Rs……. (iv) Any other unpaid amount if any Rs. 5,000.00 Total Rs. 1,03,336.00 (Rupees one lakh three thousand three hundred thirty six) only- The above amount which would be entitled in law in view of the registered will dated 9.11.1998 was not disputed by any of the parties. 19. For the reasons above, the impugned judgment and decree dated 18.7.2003 passed by the learned District Judge, Sonitpur, Tezpur is hereby set aside. The appeal is allowed accordingly. 20. In the result, the present Misc. (Probate) Case No. 69 of 2000 of the Court of District Judge, Sonitpur, Tezpur is allowed and, thus, granting probate of the will dated 9.11.1998. The parties shall bear their own cost. Appeal allowed.