JUDGMENT B.P. Katakey, J. 1. This appeal by the defendant in Title Suit No. 92/1992 is directed against the judgment of reversal dated 31.7.1998 passed by the learned Addl. District Judge, West Tripura, Agartala, in Title Appeal No. 62/1996 allowing the appeal and decreeing the suit filed by the plaintiff by setting aside the judgment and decree dated 23.8.1996 passed by the learned Civil Judge, (Junior Division), Court No. 1, Agartala, West Tripura, whereby and where-under the suit of the plaintiffs was dismissed. The plaintiffs/respondents instituted the Title Suit No. 92/1992 in the Court of the learned Civil Judge, (Junior Division), Court No. 1, Agartala, praying for a decree declaring that they are the owners and possessors of the land measuring 15 gandas in Jote Nos. 309, 2369 and 2370, Tehshil-Barjala, Sub-Registry-Sadar, Agartala, in the district of West Tripura by dint of the Will executed by late Jagadish Ch. Bhattacharjee (elder brother of plaintiff No. 1) on 15.5.1992, for confirmation of possession and also for perpetual injunction, contending inter alia that the father of the plaintiff No. 1 and the defendant, namely, Bhubaneswar Bhattacharjee, purchased a plot of land measuring 1 kani 10 gandas out of his own income in the name of Kalyan Kr. Bhattacharjee (the defendant), Jagdish Ch. Bhattacharjee (testator) and Ranjit Bhattacharjee, who are the brothers. Ranjit Bhattacharjee, however, left the State of Tripura about 18-20 years back and though for about 1 (one) year thereafter his whereabout was known, he became trace-less thereafter. It has further been pleaded that the property fell in the share of Ranjit Bhattacharjee, who was unmarried, was thereafter divided by two other brothers, namely, Jagadish Ch. Bhattacharjee and Kalyan Kr. Bhattacharjee (defendant) in equal shares. According to the plaintiffs, when Jagadish Ch. Bhattacharjee was ill due to blood cancer, it was the plaintiff No. 1 who took care of him and accordingly on the request of Jagadish Ch. Bhattacharjee, they came and started living in the suit land. The further case of the plaintiffs is that Jagadish Ch. Bhattacharjee while was in G.B. Hospital, Agartala, executed a Will 15.5.1992 in presence of the witnesses bequeathing the suit land in favour of both the plaintiffs out of love and affection and also because of their poor financial condition, who ultimately died on 9.7.1992. The further case of the plaintiffs is that Jagadish Ch. Bhattacharjee while was in G.B. Hospital, Agartala, executed a Will 15.5.1992 in presence of the witnesses bequeathing the suit land in favour of both the plaintiffs out of love and affection and also because of their poor financial condition, who ultimately died on 9.7.1992. According to the plaintiffs, they were in exclusive possession of the suit land measuring 15 gandas, but as the defendant on 21.7.1992 came to the hut constructed by the plaintiffs over the said land and asked to vacate the suit land, the suit has to be instituted. 3. The defendant/appellant contested the suit by filing written statement contending inter alia that he purchased the suit land in the name of three brothers, namely, himself, Jagadish Ch. Bhattacharjee and Ranjit Bhattacharjee from his own income and as such all the three brothers were entitled to 10 gandas of land. In the written statement it has been denied that one of the brothers, i.e., Ranjit Bhattacharjee was traceless and has stated that he is living in Punjab and his whereabout is known. The execution of the Will by Jagadish Ch. Bhattacharjee in favour of the plaintiffs has also been denied, apart from division of the land fell into the share of Ranjit Bhattacharjee between Jagadish Bhattacharjee and the defendant and possession of the same by the said two brothers. 4. The learned Trial Court on the basis of the pleadings of the parties framed the following issues for considerations and decisions : 1. Is the suit maintainable in its present form? 2. Is the suit barred by limitation ? 3. Whether the suit land was purchased with the money of the father of the plaintiff appellant No. 1? 4. Whether the plaintiff appellants are the owner and possessor of the suit land on the strength of the Will executed by Shri Jagadish Ch, Bhattacharjee? 5. Whether the plaintiff appellants are entitled to a decree as prayed for? 6. Whether the Will dated 15.5.1992 executed by Jagadish Ch. Bhattacharjee is valid one? 5. The plaintiffs/respondents in order to prove their case examined 5(five) witnesses, namely, PW-1 Smt. Pratibha Chakraborty (Plaintiff No. 1) PW-2 Shri Gopal Saha (the scribe of the Will), PW-3 Shri Banabehari Goswami, PW-5, Shri Ranjit Debnath Baidya (attesting witnesses to the Will i.e. Ext.- 6) and PW-4 Smt. Lila Chakraborty (Das). Bhattacharjee is valid one? 5. The plaintiffs/respondents in order to prove their case examined 5(five) witnesses, namely, PW-1 Smt. Pratibha Chakraborty (Plaintiff No. 1) PW-2 Shri Gopal Saha (the scribe of the Will), PW-3 Shri Banabehari Goswami, PW-5, Shri Ranjit Debnath Baidya (attesting witnesses to the Will i.e. Ext.- 6) and PW-4 Smt. Lila Chakraborty (Das). They have also proved 6 (six) Nos. of documents and marked as exhibits, which includes the Will executed by Jagadish Bhattarcharjee in favour of the plaintiffs/respondents as Ext.-6. The defendant/appellant has also examined 4(four) witnesses, namely, DW-1 Shri Kalyan Kr. Bhattacharjee (defendant himself), DW-2 Shri Paritosh Dey, DW-3 Smt. Helarani Deb and DW-4 Shri Amal Kanti Chakraborty. No documentary evidence, however, has been adduced by the defendant/appellant. 6. The learned trial Court upon appreciation of the evidences on record, both oral and documentary, answered Issue Nos. 1, 2 and 3 in favour of the plaintiffs and Issue Nos. 4, 5 and 6 in favour of the defendant by holding that though the execution of the Will by Jagadish Bhattacharjee in favour of the plaintiffs have been proved by PWs-3 and 5, the attesting witnesses, active participation of the plaintiff No. 2 in the process of execution of the Will gives rise to suspicious circumstances, which the plaintiffs failed to explain satisfactorily and it could not be proved by the plaintiffs that the testator had a sound and disposing state of mind at the time of execution of the Will as he was suffering from acute illness. The learned Trial Court has further held that since the land measuring 1 kani 10 gandas was purchased by the father of the plaintiff No. 1 as well as of the defendant and two other brothers, namely, Jagadish Bhattacharjee and Ranjit Bhattacharjee, the plaintiff No. 1 being the daughter, became the owner of 1/4th share in 1 kani 10 gandas of land. However, no relief has been granted because she had not claim the title in the said suit on the basis of inheritance. 7. Being aggrieved, the plaintiffs/respondents preferred Title Appeal No. 62/1996 in the Court of the learned District Judge, West Tripura, Agartala, which was in due course of time transferred to the Court of the learned Addl. District Judge, West Tripura, Agartala. 7. Being aggrieved, the plaintiffs/respondents preferred Title Appeal No. 62/1996 in the Court of the learned District Judge, West Tripura, Agartala, which was in due course of time transferred to the Court of the learned Addl. District Judge, West Tripura, Agartala. The learned First Appellate Court allowed the appeal by decreeing the suit of the plaintiffs by holding\that the execution of the Will by Jagadish Bhattachargee in favour of the plaintiffs has been duly proved and the testator was not influenced by the plaintiffs for execution of such Will and there was also no inducement or pressure prior to such Will and as such there was no suspicious circumstances. The learned Appellate Court has also held that the whereabout of Ranjit Bhattacharjee, the brother of the plaintiff No. 1 and the defendant is not known for more than 7 (seven) years and the land fell into the share of said Ranjit Bhattacharjee was divided by two other brothers, namely, Jagadish Bhattacharjee and Kalyan Kr. Bhattacharjee (defendant) in equal shares and as such the plaintiffs acquired the right, title and interest over 15 gandas of land (suit land) since they could prove the due execution of the Will by Jagadish Bhattacharjee in their favour. Hence the present appeal. 8. A Single Bench of this Court vide order dated 1.12.1998 admitted the appeal for hearing on the following substantial questions of law : (i). Whether the learned First Appellate Court has committed error in reversing the Judgment and the Decree of the Trial Court on the face of Section 2(a) of the Indian Succession Act and read with Section 66 and 67of the Indian Evidence Act? (ii) Whether the learned First Appellate Court was justified in reversing of the order of the learned Trial Court and decreeing the suit on the face of the records? 9. While hearing the appeal, the substantial questions of law, however, were reformulated vide order dated 29.1.2010 and the appeal thus has been heard on the following substantial question of law : 1. Whether the learned First Appellate Court is right in decreeing the suit of the plaintiff by reversing the judgment and decree passed by the learned Trial Court by holding that the execution of the Will has been duly proved by dispelling suspicious circumstances? 2. Whether the learned First Appellate Court is right in presuming that Ranjit Kr. Whether the learned First Appellate Court is right in decreeing the suit of the plaintiff by reversing the judgment and decree passed by the learned Trial Court by holding that the execution of the Will has been duly proved by dispelling suspicious circumstances? 2. Whether the learned First Appellate Court is right in presuming that Ranjit Kr. Bhattacharjee, one of the brothers of the testator, namely Jagadish Ch. Bhattacharjee and the defendant Kalyan Kr. Bhattacharjee is dead without discussing the evidences on record and in view of Section 108of the Indian Evidence Act, 1872? 3. Whether the testator can bequeath more than the land over which he has the right, title and interest, if not, whether by such bequeath, the beneficiary shall derive title in respect of the land over which the testator had right, title and interest? 10. I have heard Mr. P. Roy Barman, the learned Counsel for the defendant/appellant and Mr. D.R. Chowdhury, the learned Counsel appearing for the plaintiffs/respondents. 11. Mr. Roy Barman, relating to the first substantial question of law, has submitted that it is apparent from the averments made in the plaint as well as the evidences adduced by PW-1 (Plaintiff No. 1) that Jagadish Bhattacharjee was not in disposing state of mind at the time of alleged execution of the Will and was under pervasive control of the plaintiffs, as the PW-1 in her deposition has stated that owing to his illness Jagadish had physical and mental breakdown. Mr. Roy Barman further submits that the fact that the testator was not in the disposing state of mind, is also apparent from the evidences of DWs, who have stated that on 14th and 15th May, 1992 blood had to be given to the testator and he was not in a disposing state of mind. It has further been submitted that it is also apparent from the evidence of PW-1 as well as the PW-2 (the scribe of the Will) that one of the beneficiary of the said Will, namely, the plaintiff No. 2 actively participated in the preparation of the Will as well as its alleged execution. It has further been submitted that it is also apparent from the evidence of PW-1 as well as the PW-2 (the scribe of the Will) that one of the beneficiary of the said Will, namely, the plaintiff No. 2 actively participated in the preparation of the Will as well as its alleged execution. The learned Counsel, therefore, submits that there are suspicious circumstances surrounding the purported execution of the Will, which could not be dispelled by the propounder i.e. the plaintiffs by leading any evidence about his disposing state of mind as well as his physical condition by examining the doctor. The propounder's active participation in execution of the Will though also amounts to suspicious circumstances, the plaintiff could not demonstrate by adducing evidence why such participation was necessary, although, the burden lies on the propounder to dispel such suspicious circumstances by leading evidence so as to satisfy the conscience of the Court about due execution of the Will by the testator. 12. Relating to the second substantial question of law, referring to the provisions contained in Section 108 of the Evidence Act, it has been submitted by Mr. Roy Barman that since the plaintiffs claimed that Ranjit Bhattacharjee, one of the brother of the plaintiff No. 1 and the defendant, has not been heard for more than 7 (seven) years, the burden lies on the plaintiffs to prove that he has not been heard for more than 7 (seven) years by those who would naturally heard of him, if he had been alive, so as to draw the presumption that Ranjit Bhattacharjee is not alive and such burden according to the learned Counsel could not be discharged by the plaintiffs by adducing cogent and reliable evidence. Referring to the averments made in the plaint as well as the evidences adduced, it has been submitted that the plaintiffs nowhere stated about any specific date or year from which Ranjit Bhattacharjee has not been heard. On the other hand, the defendant by examining DW-3 could prove that Ranjit Bhattacharjee came to Agartala in the year 1992 and he has been staying in Punjab and hence the learned Court below ought not to have presumed that Ranjit Bhattacharjee is dead and consequently pass a decree in favour of the plaintiffs in so far as the area of land fell in the share of Ranjit Bhattacharjee. 13. Mr. 13. Mr. Roy Barman, relating to the 3rd substantial/question of law, has submitted that since the plaintiffs could not prove by adducing any cogent and reliable evidence that Ranjit Bhattacharjee has not been heard for more than 7 (seven) years, the learned First Appellate Court, at the most could have decreed the suit of the plaintiffs only in respect of the land fell in the share of Jagadish Bhattacharjee. 14. In support of his contention, Mr. Roy Barman has placed reliance on the decisions of the Apex Court in H. Venkatachala lyenger v. B.N. Thimmajamma and Ors. reported in AIR 1959 SC 443 , Surendra Pal v. Saraswati Arora reported in (1974) 2 SCC 600 , Seth Beni Chand v. Kamla Kunwar reported in (1976) 4 SCC 554 , Jaswant Kaur v. Amrit Kaur reported in (1977) 1 SCC 369 , Rabindra Nath Mukherjee v. Panchanan Banerjee reported in AIR 1995 SC 1684 , Joyce Primrose Prestor v. Vera Marie Vas reported in (1996) 9 SCC 324 , Gurdial Kaur v. Kartar Kaur reported in (1998) 4 SCC 384 , Meenakshiammal v. Chandrasekaran reported in (2005) 1 SCC 280 , Adivekka v. Hanamavva Kom Venkatesh 'D' reported in AIR 2007 SC 2025 , Apoline D'Souza v. John D'Souza reported in AIR 2007 SC 2219 and K. Laxmanan v. Thekkavil Padmini reported in AIR 2009 SC 951 . 15. Mr. Chowdhury, the learned Counsel appearing for the plaintiffs/respondents, on the other hand, has submitted that it is evident from the judgment passed by the learned Trial Court that though the plaintiffs could prove the due execution of the Will by examining the scribe as well as the attesting witnesses, the learned Trial Court refused to pass the decree solely on the ground that the active participation of the plaintiff No. 2 in the process of execution of the Will gives rise to a suspicious circumstance, which could not be dispelled by the plaintiffs, though the evidences adduced by the plaintiffs do not suggest the active participation of the plaintiffs and what the plaintiffs did was as per the desire of the testator. It has further been submitted that the learned trial Court has also doubted the disposing state of mind of the testator at the time of execution of the Will as he was ill and in the hospital. It has further been submitted that the learned trial Court has also doubted the disposing state of mind of the testator at the time of execution of the Will as he was ill and in the hospital. According to the learned Counsel, it is not always necessary to examine the doctor to prove that the testator was in a disposing state of mind and in the instant case as there are ample evidences on record adduced by the plaintiffs that the testator was in disposing state of mind, hence, the learned First Appellate Court has rightly decreed the suit of the plaintiffs by holding that the plaintiffs could prove the due execution of the Will and there are no suspicious circumstances surrounding the execution of the Will. 16. It has further been submitted by Mr. Chowdhury that the plaintiff No. 1 (PW-1), who is the sister of Ranjit Bhattacharjee by adducing evidence could prove that the whereabouts of her brother Ranjit Bhattacharjee for last more than 7 (seven) years was not known and he has not been heard. PW-1 being the person, who would naturally have heard of Ranjit Bhattacharjee, her brother, had he been alive, the learned First Appellate Court has rightly presumed that Ranjit Bhattacharjee is not alive and accordingly passed the decree, there being proof of amicable partition of land fell in the share of Ranjit Bhattacharjee, between Jagadish Bhattacharjee (testator) and Kalyan Kr. Bhattacharjee (defendant), in equal shares. 17. Mr. Chowdhury further submits that since the land fell in the share of Ranjit Bhattacharjee has been divided by other two brothers, namely, Jagadish Bhattacharjee (testator) and Kalyan Kr. Bhattacharjee (defendant) in equal proportion, Jagadish Bhattacharjee acquired right, title and interest in respect of 15 gandas of land out of 1 kani 10 gandas of the land purchased by their father, namely, Bhubaneswar Bhattacharjee. In any case according to Mr. Bhattacharjee (defendant) in equal proportion, Jagadish Bhattacharjee acquired right, title and interest in respect of 15 gandas of land out of 1 kani 10 gandas of the land purchased by their father, namely, Bhubaneswar Bhattacharjee. In any case according to Mr. Chowdhury, since both the learned Courts below have held that the land measuring 1 kani 10 gandas was purchased by Bhubaneswar Bhattacharjee, the father of the plaintiff No. 1 and the defendant as well as Jagadish Bhattacharjee and Ranjit Bhattacharjee, out of his own income, after the death of their father, all the four heirs would acquire right, title and interest over the said land in equal proportion by right of inheritance and as such plaintiff No. 1 is entitled to 7-1/2 gandas of land being her share in the property left behind by her father. An equal amount of land i.e. 7-1/2 gandas also fell in the share of Jagadish Bhattacharjee, who executed the Will (Ext.-6) and as such the plaintiffs are entitled to 15 gandas of land in total for which the decree has been passed. The learned Counsel, therefore, submits that the decree passed by the learned First Appellate Court needs no interference in second appeal. 18. Mr. Chowdhury, the learned Counsel for the plaintiffs/respondents, in support of his contention has placed reliance on the decision of the Apex Court in E. Madhavi Pallikkarammma v. K.V. Prabhakaran Nair reported in (2001) 9 SCC 726 , Madhukar D. Shende v. Tarabai Aba Shedage reported in (2002) 2 SCC 85 and Daulat Ram v. Sodha reported in (2005) 1 SCC 40 . 19. I have considered the submissions of the learned Counsel for the parties and also perused the materials available on record, including the judgment and decree passed by the learned Courts below. 20. The case of the plaintiffs, as noticed above, it that Bhubaneswar Bhattacharjee, the father of the plaintiff No. 1, defendant, Jagadish Bhattacharjee and Ranjit Bhattacharjee purchased a plot of land measuring 1 kani 10 gandas in the name of three brothers, namely, Kalyan Kr. Bhattacharjee, the defendant, Jagadish Bhattacharjee and Ranjit Bhattacharjee and since the whereabouts of Ranjit Bhattacharjee was not known for 18 to 20 years, the land fell in his share was divided between the two other brothers, namely, the defendant and Jagadish Bhattacharjee in equal shares and they were occupying their shares of land. Bhattacharjee, the defendant, Jagadish Bhattacharjee and Ranjit Bhattacharjee and since the whereabouts of Ranjit Bhattacharjee was not known for 18 to 20 years, the land fell in his share was divided between the two other brothers, namely, the defendant and Jagadish Bhattacharjee in equal shares and they were occupying their shares of land. the further case of the plaintiffs is that Jagadish Bhattacharjee executed the Will (Ext.-6) on 15.5.1992 bequeathing 15 gandas of land which includes the share of Ranjit Bhattacharjee, in favour of the plaintiffs. The defendant, however, has denied the execution of the Will and also the contention of the plaintiffs that the whereabouts of Ranjit Bhattacharjee is not known for more than 7 (seven) years, so as to presume that he is not alive. 21. The learned Trial Court, though, held that the plaintiffs could prove due execution of the Will (Ext.-6), according to the learned Trial Court, there being suspicious circumstances surrounding the execution of the Will, which the plaintiffs could not dispel, their right, title and interest on the basis of the Will cannot be decreased. The learned First Appellate Court, however, has decreed the suit of the plaintiff by holding that there is no suspicious circumstances surrounding the execution of the Will and the whereabouts of Ranjit being not known for more than 7 (seven) years, his share in the land was divided by two other brothers, namely, Jagadish and the defendant in equal shares even before the execution of Will (Ext.-6) and they were possessing their respective shares of land and Jagadish bequeathed the property measuring 15 gandas in favour of the plaintiffs. 22. In the backdrop of the pleaded case of the plaintiffs and the defendant as well as the findings recorded by the learned Courts below, I shall now proceed to deal with the substantial questions of law framed for hearing of the appeal. A. Whether the learned First Appellate Court is right in decreeing the suit of the plaintiff by reversing the judgment and decree passed by the learned Trial Court by holding that the execution of the Will has been dully proved by dispelling suspicious circumstances? 23. A. Whether the learned First Appellate Court is right in decreeing the suit of the plaintiff by reversing the judgment and decree passed by the learned Trial Court by holding that the execution of the Will has been dully proved by dispelling suspicious circumstances? 23. As noticed above, both the Courts below have held that the plaintiffs could prove the due execution of the Will (Ext.-6) by Jagadish Bhattacharjee, bequeathing 15 gandas of land in their favour, by examining the scribe (PW-2) and also the attesting witnesses (PWs-3 and 5). The only ground on which the right, title and interest on the basis of such Will had not been decreed by the learned Trial Court was that the plaintiffs could not dispel the suspicious circumstances surrounding the due execution of the Will, which, however, has been set aside by the First Appellate Court by holding that there is no suspicious circumstances surrounding the execution of the Will. Much argument has been advanced by the learned Counsel for the parties, on the question of suspicious circumstances. 24. Section 63 of the Indian Succession Act, 1925 provides how an unprivileged Will is to be executed. It provides that to constitute a valid Will the testator/testatrix shall have to sign of affix his or her mark to the Will in presence of two or more witnesses, each of whom has seen the testator/testatrix signing or affixing his or her mark to the Will or signed by some other person in his presence and by his direction and each of the witnesses shall have to sign the Will in presence of testator/testatrix. It shall, however, not be necessary that more than one witness must be present at the same time. There is also no particular form of attestation. 25. Section 68 of the Indian Evidence Act provides how the execution of a document, required by law to be attested, is to be proved. It provides that such a document 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. It provides that such a document 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. Hence, in order to prove the execution of a Will, at least one attesting witness has to be called for the purpose of proving its due execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence. 26. Will being a document it has to be proved by adducing primary evidence except where the Court permits proving of the same by secondary evidence. In order to assess as to whether a Will has been validly executed and the document is genuine, the propounder is also required to prove that the thumb impression or the signature was put by the testator/testatrix in the said testament out of his/her own free Will and at the relevant point of time he/she was in sound disposing state of mind and also understood the nature and affect of the disposition. The onus is also on the propounder of the Will to remove any suspicion, by adducing cogent and reliable evidence, if the execution of the Will is surrounded by any suspicious circumstances. Once these elements are established, the onus, which rests on the propounder, is discharged. In case, there is any allegation that a Will was forged or was obtained by undue influence or by coercion or by playing fraud, the burden lies on the person, to prove the same, who makes such allegation. 27. As in the case of proof of other documents, so in the case of proof of the Will, it would be idle to expect poor with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. However, since in the case of Will it operates after the death of the testator, when it is propounded or produced before a Court, the testator cannot say it is his Will or not, and as such it introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and testament of the departed testator. In cases whether the execution of the Will is shrouded in suspicion, its proof ceases to be a simple lis between the parties. The Court is required to consider whether the evidence led by the propounder of the Will is such as to satisfy the conscience of the Court that the Will was duly executed by the testator. Unless the propounder of the Will leads cogent and convincing explanation of the suspicious circumstances surrounding the making of the Will, it is not possible on the part of the Court to reach such satisfaction. 28. The aforesaid position of law has been enunciated by the Apex Court in H. Ventakachala Iyenger (supra), Surendra Pal and Ors. (supra), Seth Beni Chand, (supra), Smt. Jaswant Kaur, (supra), Rabindra Nath Mukherjee and Anr. (supra), Joyce Primrose Prestor, (supra), Gurdial Kaur and Ors. (supra), Meenakshiammal, (supra), Adivekka and Ors. (supra), Apoline D'Souza, (supra), K. Laxmanan, (supra), E. Madhavi Pallikkaram-ma, (supra), Madhukar D. Shende (supra) and Daulat Ram, (supra) and hence those decisions of the Apex Court have not been discussed individually. 29. In the instant case, both the learned Courts below have found that the plaintiffs could prove the due execution of the Will by the testator, namely, Jagadish Bhattacharjee by examining the scribe of the Will (PW-2) as well as the two attesting witnesses, namely, Shri Banabehari Boswami and Shri Ranjit Debnath Baidya (PW-3 and PW-5). Such finding recorded by the learned Trial Court had not been challenged by the defendant either by filing any appeal against such finding or under Order XLI, Rule 22 of the Code of Civil Procedure in the appeal preferred by the plaintiffs before the learned First Appellate Court against the judgment passed by the learned Trial Court refusing to pass a decree on the ground of the plaintiffs' inability to dispel the suspicious circumstances surrounding the making of the Will. It also appears from the evidence as adduced by the plaintiffs i.e. the scribe (PW-2) and also the attesting witnesses (PWs-3 and 5) that the plaintiffs could prove that Ext.-6 was the testator's last testament and he puts his signature in presence of the attesting witnesses, who have also put their signatures in presence of the testator. The plaintiffs could also prove that the document (Ext.-6) was read over to the testator, who accepted the same as correct. 30. The plaintiffs could also prove that the document (Ext.-6) was read over to the testator, who accepted the same as correct. 30. The question, therefore, which requires determination, is whether there is any suspicious circumstances surrounding the making of the Will, as it has been contended by the learned Counsel for the appellant/defendant that there are suspicious circumstances as the plaintiffs, who are the beneficiaries, took active part in its due execution and the testator was not in a disposing state of mind, he at the relevant point of time being seriously ill and as such did not understand the nature and affect of the disposition. 31. Whether there is any suspicious circumstances surrounding the making of the Will and whether the plaintiffs could discharge their burden of removing such suspicion by leading cogent and reliable evidence, is a question of fact and depends on facts of each case. There cannot be any rule of general application in that regard. 32. According to the appellant/defendant, since the testator (Jagadish Bhattacharjee) was under pervasive control of the plaintiff and was extremely ill at the relevant point of time, he was not in sound disposing state of mind and did not understand the nature and affect of the disposition. It is also the case of the appellant/defendant that the plaintiffs, who are the beneficiaries of the Will, actively participated in its execution, which is also a suspicious circumstance. The contention of the appellant/defendant is that the plaintiffs could not adduce any cogent and reliable evidence to remove such suspicion, as they did not even examine the doctor or any staff of the hospital to prove the physical and mental condition of the testator (Jagadish Bhattacharjee) and also could not adduce any evidence as to why they participated actively in making of the Will, though they were the beneficiaries of such Will. On the other hand, according to the plaintiffs/respondents, they could by leading cogent and reliable evidence remove such suspicions, if any. 33. To appreciate such contentions of the parties, the evidences as adduced as well as the findings recorded by the learned Courts below are perused, though the Second Appellate Court need not scrutinize the evidences on record, unless perversity in recording any finding is alleged. 33. To appreciate such contentions of the parties, the evidences as adduced as well as the findings recorded by the learned Courts below are perused, though the Second Appellate Court need not scrutinize the evidences on record, unless perversity in recording any finding is alleged. Plaintiff No. 1 Smt. Pratibha Chakraborty (PW-1) in her evidence has categorically stated that the testator was in sound health and mind at the time of execution of the Will and he could also sit up and speak well though he was in hospital. The circumstances under which the plaintiff No. 2 had arranged the scribe of the Will have also been explained, as the testator was in the hospital because of his sufferings from blood cancer and not in a position to move out. It is also in evidence that the testator had no issue. During cross-examination, PW-1 reiterated her statement relating to the sound disposing state of mind and his capability to understand the nature and affect of the disposition. PW-2 Shri Prangopal Saha, who is the scribe of the Will has also depose about the sound disposing state of mind of the testator as well as his capability to understand the nature and affect of such disposition. PWs-3 and 5, namely, Shri Banabehari Goswami and Shri Ranjit Debnath Baidya, who are the attesting witnesses to the Will, have also supported such version. PW-2, the scribe, has also proved that the Will was written as per direction of the testator. PW-2, PW-3 and PW-5 also have proved that the contents of the Will was read over to the testator, which was accepted by him as correct and thereafter in presence of PWs-3 and 5 he puts his signature in the said Will The factum of putting signature by PWs-3 and 5 in the Will in presence of the testator, as attesting witnesses, has also been proved. DW-1 Shri Kalyan Kr. Bhattacharjee (defendant) though in his examination-in-chief has stated that the condition of the testator (Jagadish Bhattacharjee) deteriorated from 13.5.1992 and on 15.5.1992 his condition was very critical and was not in a sound disposing state of mind as well as not capable to understand the nature and affect of disposition, it has come out from the evidence of DWs-2 and 3 that DW-1 (Kalyan Kr. Bhattacharjee). was not present in the hospital on those days though he claimed to have present. Bhattacharjee). was not present in the hospital on those days though he claimed to have present. The version of DW-1 in that respect does not inspire the confidence of the Court as it has come out in the evidence that he did not take any care of his brother Jagadish, the testator, and even did not visit him in the hospital. DW-2 also did not support DW-1 about visiting Jagadish, the testator, in the hospital so also by the DW-3, The version of DW-4 that blood was given on 14.5.1992 and he was in the hospital on 14th and 15th are also not believable as no other defendant witnesses supported his version about his presence in the hospital and transfusion of blood to Jagadish, not even by DW-1 (Kalyan, defendant) who claimed to be present in the hospital all through out. From the deposition of the DWs it also transpires that it was the plaintiffs who took care of Jagadish when he fell ill and also during the period when he was in hospital and also after he was brought to his house from the hospital. Merely because the doctor or any other staff of the hospital has not been examined by the plaintiffs to demonstrate the physical and mental condition of the testator at the relevant point of time, cannot be the ground to discard the other positive evidences adduced by the plaintiffs relating to the sound disposing state of mind and the testator's capability to understand the nature and affect of disposition. This is basically the question of fact, which has already been recorded by the learned First Appellate Court, on the basis of the evidences adduced by the parties. 34. In view of the aforesaid discussion, I am of the view that the plaintiffs could prove the due execution of the Will by dispelling all the suspicious circumstances surrounding the making of such Will as held by the learned First Appellate Court. B. Whether the learned First Appellate Court is right in presuming that Ranjit Kr. Bhattacharjee, one of the brothers of the testator, namely Jagadish Ch. Bhattacharjee and the defendant Kalyan Kr. Bhattacharjee is dead without discussing the evidences on record and in view of Section 108 of the Indian Evidence act, 1872? 35. B. Whether the learned First Appellate Court is right in presuming that Ranjit Kr. Bhattacharjee, one of the brothers of the testator, namely Jagadish Ch. Bhattacharjee and the defendant Kalyan Kr. Bhattacharjee is dead without discussing the evidences on record and in view of Section 108 of the Indian Evidence act, 1872? 35. The learned First Appellate Court upon appreciation of the evidences on record has recorded the finding that the plaintiffs could prove that Ranjit has not been heard of for more than 7 (seven) years and the land fell in his share was mutually divided and occupied by Jagadish (testator) and Kalyan (defendant) in equal shares. 36. Section 107 of the Evidence Act provides that if a person is alive within 30 years, the burden of proving that he is dead on the person who affirms it. The principle of Section 107 is that when once a state of things is shown exist, there is in law a presumption of its continuance for a period for which such state of things ordinarily lasts. If a person is shown to have been alive within 30 years of the date on which the question whether he is alive or dead arises, there is a presumption of his being alive, and the burden of proving that he is dead lies on the person who asserts that he is dead. If it is shewn that he is not been heard of for 7 (seven) years by those who, if he had been alive, would naturally have heard of him, such presumption is rebutted. Once such fact is proved, the burden of proving that such person is still alive is upon the person, who asserts that he is alive (Section 108 of the Evidence Act). The presumption embodied in Section 108 of the Evidence Act is like a proviso to Section 107 of the said Act. 37. In the case in hand, according to the plaintiffs, Ranjit Bhattacharjee abut 18 to 20 years back left the house and thereafter he has not been heard of by anyone including those who would naturally have heard of him had he been alive. 37. In the case in hand, according to the plaintiffs, Ranjit Bhattacharjee abut 18 to 20 years back left the house and thereafter he has not been heard of by anyone including those who would naturally have heard of him had he been alive. On the other hand, the contention of the defendant in the written statement is that Ranjit Bhattacharjee, who is the younger brother of the defendant had left the house about 7 (seven) years back and was living at Guwahati for a period of about 3 (three) years and thereafter left for Punjab and is in Punjab working in a Guruduwara in Amritsar and he had written letters to the defendant, the last being in the year 1992. The stand of the defendant, therefore, is that, no presumption under Section 108 of the Evidence Act can be drawn about the death of Ranjit Bhattacharjee. 38. To substantiate the plea, the plaintiff No. 1 examined herself (PW-1) as well as one of the cousin sisters of both the plaintiff No. 1 and the defendant, who has been examined PW-4. That apart, the plaintiffs relied upon the contents of the Will (Ext.-6). It is evident from the contents of Ext.-6 that Jagadish Bhattacharjee, the testator, who is one of the brothers of Ranjit as well as of the plaintiff No. 1 and the defendant, in the Will has stated that Ranjit Bhattacharjee who was unmarried left Tripura in the year 1973 and thereafter though both the other two brothers made frantic efforts to trace him out, it did not yield any result. PW-1 who is the sister of Ranjit, in her deposition has stated that the whereabouts of Ranjit is not known for about 18 to 20 years. PW-4 a cousin sister of Ranjit as well as the plaintiff No. 1 and the defendant has also supported such version of the plaintiffs. As against such evidence, as adduced by the plaintiff, the defendant (DW-1) in his deposition has stated that Ranjit used to write letters to him, the last being in the year 1992 and as such it is not that his whereabouts is not known and hence it is not that he has not been heard of for more than 7 (seven) years. The defendant, however, did not produce any of such letters allegedly written by Ranjit to him. The defendant, however, did not produce any of such letters allegedly written by Ranjit to him. The plaintiff No. 1 Smt. Pratibha Chakraborty (PW-1) and Smt. Lila Chakraborty (Das) (PW-4), who are the sister and cousin sister, respectively, of Ranjit and are the persons who would naturally have heard of Ranjit, had he been alive, could prove that Ranjit has not been heard of for more than 7 (seven) years. The contents of the Will (Ext.-6), as discussed above, executed by the eldest brother Jagadish also supports the version of the plaintiffs, as it has been mentioned that Ranjit has not been heard since the year 1973 i.e. for about 19 years from before the date of execution of such Will. The defendant has not challenged the contents of the Will. The plaintiffs could, therefore, discharge the burden under Section 108 of the Evidence Act. The burden, therefore, shifted to the defendant to prove that Ranjit is alive, as he claims that he is alive. The defendant, as discussed above, though has claimed that Ranjit used to write letters, the last being in the year 1992, he could not produce any of such letters. The version of the defendant, in the absence of such letters and in view of the evidence of the plaintiffs, as discussed above, therefore, cannot be accepted. 39. In view of the aforesaid discussion,I am of the view that the learned First Appellate Court has rightly drawn the presumption about Ranjit's death under Section 108 of the Evidence Act. C. Whether the testator can bequeath more than the land over which he has the right, title and interest, if not, whether by such bequeath, the beneficiary shall derive title in respect of the land over which the testator had fight, title and interest? 40. The learned First Appellate Court has recorded the finding of fact that the land fell in the share of Ranjit i.e. 10 gandas out of 1 kani 10 gandas purchased by the father of Jagadish, Kalyan and Ranjit, was partitioned and possessed by Jagadish (testator) and Kalyan (defendant) in equal shares and with definite boundaries. The finding of fact has also been recorded relating to the mutual partition of land between Jagadish (testator) and Kalyan (defendant). It is also in evidence that Ranjit was unmarried. 41. The finding of fact has also been recorded relating to the mutual partition of land between Jagadish (testator) and Kalyan (defendant). It is also in evidence that Ranjit was unmarried. 41. Section 8 of the Hindu Succession Act, 1956 lays the general rules of succession in the case of males. It provides that the property of a male Hindu dying intestate shall devolve firstly, upon the heirs, being the relatives specified in Class I of the Schedule; secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the Schedule; thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and lastly, if there is no agnate, then upon the cognates of the deceased. 42. Section 11 of the said Act provides the distribution of the property among the Class-II heirs.' It provides that the property of an intestate shall be divided between the heirs specified in any one entry in Class II of the Schedule so that they share equally. 43. In the instant case, it is not in dispute that there is no Class I heir to inherit the property of Ranjit. It is also not in dispute that the parents of Ranjit died before he left the State of Tripura. Ranjit being unmarried, his brothers and sisters would inherit Ranjit's property being the Class II heirs and in equal proportion they being clubbed together in entry II. The plaintiff No. 1 being the sister of Ranjit, the property left behind by him would be divided amongst Jagadish (testator), Kalyan (defendant) and the plaintiff No. 1, they being the brothers and sister of Ranjit and they would be entitled to 3 gandas 1 kara 1 kranta of land each out of 10 gandas of land fell in the share of Ranjit. Jagadish (testator), therefore, entitled to 13 gandas 1 kara 1 kranta of land, which includes the 10 gandas of land fell in his share and consequently he could by the Will bequeath 13 gandas 1 kara 1 kranta of land, though he bequeathed by the Will (Ext. -6) 15 gandas of land. Jagadish (testator), therefore, entitled to 13 gandas 1 kara 1 kranta of land, which includes the 10 gandas of land fell in his share and consequently he could by the Will bequeath 13 gandas 1 kara 1 kranta of land, though he bequeathed by the Will (Ext. -6) 15 gandas of land. The plaintiff No. 1 in the plaint having not claimed declaration of any right, title and interest on the basis of the inheritance in respect of the Ranjit's property, no decree in respect of plaintiff No. 1'st share can be passed. Since Jagadish acquired the right, title and interest in respect of 13 gandas 1 kara 1 kranta of land only, his Will would have to be treated as to the extent of his share only, even if, by such Will he bequeathed more land than his share. The plaintiffs, therefore, would be entitled to a decree for declaration of right, title and interest in respect of 13 gandas 1 kara 1 kranta of land only, by virtue of the Will (Ext.-6) and also the confirmation of possession, as prayed for. 44. In view of the aforesaid discussions and findings, the judgment and decree passed by the learned First Appellate Court is modified to the extent as indicated above. 45. The appeal accordingly stands allowed to the extent indicated above. However, keeping in view the facts and circumstances of the case, the parties are directed to bear their own cost. Appeal allowed.

Kalyan Kumar Bhattacharjee v. Pratibha Chakraborty