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2012 DIGILAW 1363 (GAU)

Prabir Chakraborty v. Samir Chakraborty

2012-12-21

S.TALAPATRA

body2012
JUDGMENT S. Talapatra, J. 1. This appeal filed under Section 299 of the Indian Succession Act, 1925 is directed against the judgment and order dated 21.12.2001 passed by the Additional Sessions Judge, West Tripura, Agartala in case No. Misc. (Probate) 01 of 1992 whereby the prayer for grant of probate of the Will or the last testament as executed by Jatindra Kr. Chakraborty, since deceased (Exbt. 1 series) has been rejected. The appellant instituted a petition being Misc. (Probate) 01 of 1992 under Section 276 of Indian Succession Act, 1925 of the Will for grant of probate claimed to have executed by the testator namely Jatindra Kr. Chakraborty on 20.05.1976 bequeathing the properties as described in the schedule appended to the petition to the respondent No. 7. The appellant instituted the said testamentary proceeding in the capacity of the executor. The petition was indisputably instituted after 15 years from the death of the testator. There is no dispute that the executor died on 28.06.1977 and the testamentary proceeding was instituted on 16.03.1992. The said testator was survived by three sons namely Sudhir Kr. Chakraborty (respondent No. 7), Samir Chakraborty (respondent No. 1) and the appellant and two others namely Anjali Bhattacharjee (respondent No. 6) and Putul Choudhury, since deceased represented by the legal heirs namely Madhusudhan Chowdhury (respondent No. 2), Abhijit Chowdhury (respondent No. 3) and Biswajit Chowdhury (respondent No. 4). 2. The Will in question as executed on 20.05.1976 was scribed by Anath Bandhu Chakraborty and attested by the witnesses namely Prabir Chakraborty Dhirendra Chakraborty and Manoranjan Chakraborty. By the said Will, the properties of the executor were bequeathed to the respondent No. 7. Except the respondent No. 1 none resisted the prayer by filing any objection. The respondent No. 1 questioned the locus-standi of the appellant to institute a testamentary proceeding on the basis of the Will in question and also alleged that the Will in question was created fraudulently and the same was never executed by Jatindra Kr. Chakraborty his father. In the objection, the respondent No. 1 categorically contended that the signature of the alleged Will was not of his father. It is also not in dispute that the Will was only disclosed when a suit for partition of the properties of said Jatindra Kr. Chakraborty was instituted being Title Suit (Partition) No. 03 of 1992 by the respondent No. 1. It is also not in dispute that the Will was only disclosed when a suit for partition of the properties of said Jatindra Kr. Chakraborty was instituted being Title Suit (Partition) No. 03 of 1992 by the respondent No. 1. According to the respondent No. 1, the Will has been fraudulently created by the scribe and the respondent No. 7 to deprive the other legal heirs from their right to inheritance over the properties as described in the schedule appended to the said will. The respondent No. 1 further contended that the testator was never a Benamadar as projected in as much as the testator was a government employee and had retired as the Chief Inspector of Food. He categorically denied that the respondent No. 7 had given a fund for purchase of the said property. Apart that, he categorically stated that he had constructed his house on the purported 'bequeathed' land when his father was alive and after the date of the purported will. Therefore, from the pleadings the pertinent issue that emerges requiring to be addressed is whether Jatindra Chakraborty, the testator was competent to execute the Will and whether he executed the Will in question bequeathing the properties as appended to the schedule to the petition to the respondent No. 7 and whether the appellant was appointed as the executor of the said will. The Will on the face of the objection raised by the respondent No. 1 was treated as the questioned document and was sent to the Government Examiner of Questioned Document, Calcutta after recording of the evidence by the order dated 01,08.1998 which runs as under: Learned counsel for the parties are present. Learned counsel for the opposite parties submitted a petition for sending the Will alongwith Exhibit 2 document to the Government Examiner of Question documents, M.H.A. 30 Gora Chand Road, Calcutta-14 for comparing the signatures of the Executants in the Will Ext.-1 with the signature of mutation petition Ext.-2. Before sending the documents it is to be ascertained about the fees of the Govt. Examiner for examination of the documents. Write a letter to the Govt. Examiner of Question documents, M.H.A.-30 Gora Chand Road, Calcutta-14 requesting him to inform the Court about the fees which will be required for examination of the question documents consists of three pages with the signature made in Ext.-2 documents. Fix 17.9.98 for report. 3. Examiner for examination of the documents. Write a letter to the Govt. Examiner of Question documents, M.H.A.-30 Gora Chand Road, Calcutta-14 requesting him to inform the Court about the fees which will be required for examination of the question documents consists of three pages with the signature made in Ext.-2 documents. Fix 17.9.98 for report. 3. It further appears from the order dated 05.10.2001 that purpose of obviating the difficulties as faced by the hand writing experts more admitted documents were asked to be filed by the parties. The relevant part of the said order dated 05.10.2001 is excerpted hereunder: Ld. Counsel for the petitioner and the objector are present. It is submitted by the Ld. Counsels of both sides that the Hand Writing Expert has returned the original Will and the admitted document with signature of the testator which was forwarded to the Hand Writing Expert and it is reported that only examining one admitted signature the Hand Writing Expert could not give any opinion about the signature of testator in the Will and therefore, demanded some more admitted signatures preferably the writing during the period 1975-78. Both sides are therefore, directed to submit admitted hand writing and signature of testator Jatindra Kr. Chakraborty for sending the same afresh for comparison with the signature of the testator in the alleged Will. This is a case of the year 1992. So both sides must submit the documents within 7 days. 4. From the order dated 24.11.2001 it appears further that the respondent No. 1 informed the Court that he had no document to furnish for comparison by the Government Examiner of Question Documents. In the context of the order dated 05.10.2001 the appellant also made similar submission. As a result the reference as made to the Government Examiner of Question Documents was aborted and the matter was heard on merit. 5. It appears from the record that the appellant examined himself as the PW 1 and the scribe as the PW 2 and the respondent No. 1 examined himself as the O. PW 1. 6. The appellant (PW 1) stated that his father died on 28.06.1997 and he was survived by three sons and two daughters and his wife. After 5 years his mother also died. His father (the testator) was the owner of the homestead land. 6. The appellant (PW 1) stated that his father died on 28.06.1997 and he was survived by three sons and two daughters and his wife. After 5 years his mother also died. His father (the testator) was the owner of the homestead land. On 20.06.1976 he executed a Will in respect of the said homestead land and at the time of execution he was present in the place of execution. Anath Bandhu Chakraborty scribed the will. Dhirendra Kr. Chakraborty, Manoranjan Chakraborty (now deceased) and himself were the attesting witnesses of the will. His father executed the Will in his residence at Joynagar and in the Will he appointed the appellant as the executor. He identified the Will and the signatures of his father respectively as Exbt. 1 series and Exbt. 1/1. He also stated that his father was the Food Inspector of Government of Tripura and his father purchased the property from the fund as made available by his brother, Sudhir Kr. Chakraborty. From the cross examination as carried out by the respondent No. 1 it appears that the respondent No. 7 was placed under suspension once but he denied to have any knowledge of the period of such suspension. He admitted that the respondent No. 1 (Samir Chakraborty) constructed his house on the said land but he clarified that the construction was made prior to execution of the Will. He denied the suggestion that the signatures in the Will (Exbt. 1 series) were not the signatures of his father. He however, denied that the respondent No. 1 had no knowledge of the will. He admitted that the respondent No. 1 instituted a partition suit relating to the same homestead land when they had produced the Will in the Court. He also denied the suggestion that Manoranjan Chakraborty did not put his signature in the Will or that the Will is a manufactured one. Later on, by way of reexamination the appellant stated that he submitted one application of his father dated 08.08.1972 for mutation of the land and that contained the signature of his father which was marked as Exbt. 2. 7. The scribe, the PW 2 supported the case of the appellant and stated that the Exbt. 1 series document was written by him and he identified his signature as Exbt. 1/3. 2. 7. The scribe, the PW 2 supported the case of the appellant and stated that the Exbt. 1 series document was written by him and he identified his signature as Exbt. 1/3. He categorically stated that after writing of the Will he read over the same to Jatindra Kr. Chakraborty (the testator) who on being satisfied executed the same in his presence and in presence of witnesses. He also vouched in the Court that the testator was aged about 75 years old and on that time he was having good health. He also identified the signature of the testator as available on the Will. In the cross examination he stood by all the questions without even wavering. 8. The respondent No. 1, in support of his contention as raised in the objection, stated that he constructed a hut in the southern viti of the homestead land and he paid the municipal tax of the said house in the name of his father. He admitted one receipt of tax as Exbt. A. He further stated that the respondent No. 7 was placed under suspension on several occasions since 1972. He stated that he instituted the suit for partition of the homestead land of his father and in the said proceeding for the first time the appellant and the respondent No. 7 disclosed the existence of the purported Will in the Written Statement. He admitted in the examination in chief that in the tax receipt his name was not appearing. He also failed to state when questioned what was the salary or the quantum of pension his father was drawing during service and after retirement. The respondent No. 1 with reference to the pension book stated that his father was drawing a pension of Rs.76/- per month form 08.11.1966. He identified the title deed of the scheduled land (Exbt. 3). However, he denied that the he was not residing in that homestead land since 1968 and the constructions on the homestead were made by the respondent No. 7. However, in the re-examination he stated that in the year 1968 the consideration money was paid by his father to the husband of Manada Sundari for purchasing the scheduled land. He categorically stated that the signatures as appearing in the Will are not the signatures of his father. 9. On appreciation of the evidence and the directions contained in the questioned Will (Exbt. He categorically stated that the signatures as appearing in the Will are not the signatures of his father. 9. On appreciation of the evidence and the directions contained in the questioned Will (Exbt. 1 series), the Additional District Judge, West Tripura, Agartala has returned the finding as under: A right of inheritance is a most valuable right and that is a natural right. For curtailment of such right valid and cogent reason would require. The Testator definitely had the authority to execute Will and to give his property to anybody on his desire but that would definitely for some reason to be mentioned in the written document. Even if no such reason given the document has to be proved in a sound and reasonable manner. The present Will was executed, as alleged, on 20.5.1976. The Testator died on 28.6.1977 and the petition presented for Probate on 16.3.1992 and that is also after institution of the Partition Suit by the objector. In the Will it is stated that it was purchased on the payment of the amount being made by the beneficiary Sudhir Chakraborty. But, in the cross-examination of the petitioner it has come out that after 1972 Sudhir Chakraborty was sometimes placed under suspension. Anyway, there is no evidence at all that the amount was exclusively paid by opposite party No. 7 for the purchase of bequeathed property and the alleged Testator Jatindra Kumar Chakraborty was a Benamdar. Had it so that the payment was made by the beneficiary Sudhir Chakraborty then the beneficiary and the petitioner ought adduce evidence in that respect. The objector seriously disputed the signature of Jatindra Kumar Chakraborty. In the given circumstances no witness who were related to Jatindra Kumar Chakraborty and even the alive daughter of Jatindra Kumar Chakraborty, i.e., opposite party No. 6 examined to prove it. The petitioner stated that attesting witness Manoranjan Chakraborty died but the attesting witness Dhirendra Chakraborty who is alive he is also not examined. So practically no independent and trustworthy witness examined to prove that Jatindra Kumar Chakraborty actually executed the Will bequeathing the property to opposite party No. 7 depriving the other legal heirs. Hence prayer for granting Probate stands rejected. 10. Mr. So practically no independent and trustworthy witness examined to prove that Jatindra Kumar Chakraborty actually executed the Will bequeathing the property to opposite party No. 7 depriving the other legal heirs. Hence prayer for granting Probate stands rejected. 10. Mr. A.K. Bhowmik, learned senior counsel appearing for the appellant severely criticised the said judgment and order dated 21.12.2001, hereafter referred to as the impugned order contending that the Additional District Judge, West Tripura, Agartala has given a decent burial of the legal propositions so far evolved in this country as regards the Will or the last testament. He submitted that there is no requirement at law to provide a valid and cogent reason in the Will why the testator sought to curtail the right of inheritance or to regulate the succession of the properties. However, he supported that part of the judgment that it would be the obligation of the beneficiaries of the Will for whom the probate is sought to establish before the Court that the execution of the said Will or the last testament was carried out while the testator was in sound 'testamentary capacity or in the sound disposing mind'. He further contended that if the execution is proved to its hilt the Court has to presume that the testator at the time of execution of the Will or the last testament was in the sound testamentary or disposing mind. He further contended that it was never the claim of the respondent No. 7 or the appellant as the executor that the testator was a Benamdar and the Will is a usual document of transferring the right of the properties to its original owner who made the fund available at the time of purchase. Therefore, there was no requirement of law to give evidence to that aspect of the matter and as such the finding as returned by the Additional District Judge, West Tripura, Agartala is absolutely un-called for. Further he criticised the finding of the Additional District Judge for the observation that since the related witnesses did not identify the signatures of the testator, the execution has become doubtful or for such non-examination of 'so called independent trustworthy witness' the payer for granting probate warranted rejection by the Court. 11. Mr. Further he criticised the finding of the Additional District Judge for the observation that since the related witnesses did not identify the signatures of the testator, the execution has become doubtful or for such non-examination of 'so called independent trustworthy witness' the payer for granting probate warranted rejection by the Court. 11. Mr. A.K. Bhowmik, learned senior counsel appearing for the appellant with sufficient vehemence submitted that the Will, which is an unprivileged Will, was executed by the testator in presence of two attesting witnesses. At the direction of the testator the content of the Will was disclosed to them and the same was scribed by the PW 2. He submitted further that the appellant being one of the attesting witnesses identified the signatures of the testator and his signature on the Will or the last testament and thus the onus of Section 68 of the Evidence Act has been adequately discharged by the appellant who prayed for probate of the Will. Apart that the scribe (PW 2) has also supported the case of the appellant in the Court and stated in no uncertain term that "the executant Jatindra Kr. Chakraborty was approximately 75 years old at that time having a good health". The scribe also elaborated how the Will was executed. He stated that he scribed the Will in the house of the testator and after writing he read over the same to the testator, "on being satisfied executed the same in my presence and in presence of the witnesses". 12. To buttress his contentions Mr. A.K. Bhowmik, learned senior counsel appearing for the appellant referred a decision of the Apex Court in H. Venkatachala Iyengar v. Thimmajamma and others, as reported on AIR 1959 SC 443 where the Apex Court held as under: 18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and 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. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. 19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally 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. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. 20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. 20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter. 21. Apart from the suspicious circumstances to which we have just referred in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. 21. Apart from the suspicious circumstances to which we have just referred in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English Courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical Courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'conscience' in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the Court is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive. 22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson, 50 Cal WN 895 : AIR 1946 PC 156 "where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth". It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect. 13. He also relied on another decision of the Apex Court in Indu Bala Bose and Others v. Manindra Chandra Bose and another, as reported in (1982) 1 SCC 20 where the Apex Court elaborated on the meaning of 'suspicious circumstances' holding that: The mode of proving a Will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Succession Act. The onus of proving the Will is on the proponder and in the absence of suspicious circumstances surrounding the execution of the Will, proof surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the Will as genuine. Even where circumstances give rise to doubts, it is far the propounder to satisfy the conscience of the Court by completely removing all legitimate suspicions. (emphasis added) 14. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the Will as genuine. Even where circumstances give rise to doubts, it is far the propounder to satisfy the conscience of the Court by completely removing all legitimate suspicions. (emphasis added) 14. The Apex Court in the following passage as excerpted in Indu Bala Bose (supra) held that: The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testator's mind was not free. If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account. If the prepounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations. 15. The Apex Court further elaborated in Indu Bala Bose (supra) by holding that: 8. Needless to say that any and every circumstance is not a 'suspicious' circumstance. A circumstance would be 'suspicious' when it is not normal or is not normally expected in a normal situation or is not expected of a normal person. 16. From the other side, Mr. D.K. Biswas, learned counsel appearing for the respondent No. 1 submitted that the Additional district Judge, West Tripura, Agartala did not commit any illegality by rejecting the prayer for probate in as much as there are serious circumstances which are not normal and suspicious in nature. He curved out such circumstances as under: Even though the testator has given some reasons why he has not provided any part of the bequeathed properties to his sons and daughters except the propounder namely Sudhir Chakraborty but a statement appears in the testament (the Will in question) that his elder son, the propounder has been maintaining him properly and carefully. From the fund earned by the said propounded the testator purchased the said land as described in the Will and appended as the schedule. 17. Mr. From the fund earned by the said propounded the testator purchased the said land as described in the Will and appended as the schedule. 17. Mr. D.K. Biswas, learned counsel appearing for the respondent No. 1 submitted further that pursuant to direction as made, the appellant could not adduce any evidence to remove the suspicion from the mind of the Court. Mr. D.K. Biswas, learned counsel also relied the decision in Indu Bala Bose (supra) to hold that the propounder is under obligation to remove the suspicious surrounding as attended to the execution of the Will. On the contrary, the PW 1 (the appellant) has failed to advance any legal evidence in this regard. Mr. D.K. Biswas, learned counsel further submitted that during lifetime of the testator the respondent No. 1 (OPW 1) constructed a house on a part of the scheduled land. Had there been any intention of the testator to deprive the respondent No. 1 from his properties, he should not have granted permission to construct his house on the scheduled land. The said respondent No. 1 however did not state anything when he constructed the said house on the scheduled land while deposing in the Court. Apart that Mr. D.K. Biswas, learned counsel pointed out that the prayer for probate of the said Will and the last testament was made after more than 14 years and that created another suspicious surrounding in as much as the existence of the Will was only made known to the world when the respondent No. 1 instituted a suit for partition of the properties left by the testator being Title Suit (Partition) No. 03 of 1992 and such disclosure was made for the first time in the Written Statement filed by the respondent No. 7. 18. In reply to the submissions as made by Mr. D.K. Biswas, learned counsel for the respondent No. 1, Mr. A.K. Bhowmik, learned senior counsel appearing for the appellant submitted that the probate of Will is not mandatory in the State of Tripura and the said issue has been clinched by this Court in Samar Krishna Saha v. State of Tripura, as reported in (2006) 1 GLR 703 where it has been held as under: 7. A.K. Bhowmik, learned senior counsel appearing for the appellant submitted that the probate of Will is not mandatory in the State of Tripura and the said issue has been clinched by this Court in Samar Krishna Saha v. State of Tripura, as reported in (2006) 1 GLR 703 where it has been held as under: 7. A careful reading of the provisions, of Section 213 would indicate that an executor or a legatee under a will has to obtain probate of the will whereunder he claims his rights, provided that the rights are claimed in a Court of justice. In other words, if a person, who is an executor or legatee under a will, does not claim his rights under a will in a Court of justice, he is not required to obtain probate of the will under which he claims the right. This apart, as indicated under Sub-section (1) of Section 213, the requirement to obtain probate lies only when the will is made by a Hindu, Buddhist, Sikh or Jain, when the wills are of the classes specified in Clauses (a) and (b) of Section 57 of the Indian Succession Act. What also needs to be pointed out is that Clause (a) and Clause (b) of Section 57 indicate that these provisions are applicable to all the wills and codicils made by any Buddhist, Sikh or Jain within the territories mentioned in Clause (a) and also to such wills and codicils, where, though the wills and codicils are made outside the territories mentioned in Clause (a), the immovable property is located within the territories or limits as specified in Clause (a). A combined reading of the Clauses (a) and (b) of Section 57 and also Section 213 would show that where the parties to the wills are Hindus, but the property is not situated in Bengal, Bombay and Madras, sub-section (2) of Section 213 of the Indian Succession Act has no application. It, therefore, logically follows that probate will not be required to be obtained by a Hindu in respect of a will made regarding the immovable property situated in the State of Tripura, for, the State of Tripura has, admittedly, never been a part of the erstwhile State of Bengal. It, therefore, logically follows that probate will not be required to be obtained by a Hindu in respect of a will made regarding the immovable property situated in the State of Tripura, for, the State of Tripura has, admittedly, never been a part of the erstwhile State of Bengal. In the passing, it may also be indicated that Section 213 is applicable only when a person claims his right as an executor or legatee under a will and not when he claims his right in any other capacity. (emphasis added) 19. Therefore, when there is no legal requirement, delay in seeking the probate cannot create suspicious surrounding. When the suit for partition was filed by the respondent No. 1, the petition seeking the probate was filed to satisfy the provision of Section 213 of the Indian Succession Act, 1921 which provides that: No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in [India] has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed. The prayer for probate of the Will cannot be thus rejected in the premises that such suspicious circumstances in execution of the Will have not been removed by the propounder. 20. Mr. A.K. Bhowmik, learned counsel appearing for the appellant, therefore, strongly contended that the respondent No. 1 has failed to establish in the Court that the execution of the Will was attended by any suspicious circumstances which required to be removed either by the appellant or by the propounder of the Will and/or that the impugned order requires interference by this Court. 21. It appears from the evidence that except the respondent No. 1, no other legal heirs of the testator have raised any objection against the prayer for grant of probate of the Will. The contention of the respondent No. 1 that the other surviving attesting witness namely Dhirendra Chandra Chakraborty since was not examined, it also created suspicious circumstances. However, he did not deny the contention of the appellant that out of the three attesting witnesses who signed the testament as per the direction of the testator one Manoranjan Chakraborty died. The contention of the respondent No. 1 that the other surviving attesting witness namely Dhirendra Chandra Chakraborty since was not examined, it also created suspicious circumstances. However, he did not deny the contention of the appellant that out of the three attesting witnesses who signed the testament as per the direction of the testator one Manoranjan Chakraborty died. But the failure of the appellant to produce said Dhirendra Chakraborty cannot constitute suspicious circumstances as the appellant has discharged the obligation as saddled by the provision of Section 68 of the Evidence Act. Moreover, the oral testimony of the PW 2 (the scribe) stood unscathed and thus it cannot be stated that the appellant failed to prove the execution of the Will to the hilt or to the satisfaction of the Court. 22. The contentious points as emerged from the submissions of the counsel of the parties are: (i) Whether the testator was at the testamentary or disposing capacity at the time of execution of the Will or to say in other words whether the execution of the Will has been proved dispelling the suspicious circumstances and (ii) Whether the Will or the last testament can be relegated by the right of inheritance unless the execution of the Will is shrouded by suspicion? 23. In H. Venkatachala Iyengar (supra) the Apex Court held that: What circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated that inevitably would be a question of fact in each case. 24. 23. In H. Venkatachala Iyengar (supra) the Apex Court held that: What circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated that inevitably would be a question of fact in each case. 24. As regards the burden to be discharged by the propounder or the executor, the Apex Court held that: approving the well known observation of Baron Parke in the case of Barry v. Butlin, 1838 2 Moo PC 480 where it has been stated that the two rules of law set out by Baron Parke that: first, the onus probandi lies in every case upon the party propounding a Will; and he must satisfy the conscience of the Court that the instrument of pronounced is the last Will of a free and capable testator, the second is, is that, if a party writes or prepares a Will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court and questioned upon to be vigilant and zealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true Will of the deceased. (emphasis added) It is hardly necessary to add that the statement of these two rules has now attained the status of the classis us and it is cited by all acclaimed books on Wills. It appears that four issues were framed to consider the prayer for granting the probate of the Will in question, viz.: (i) Whether the instant case is maintainable in its present form? (ii) Whether Jatindra Kumar Chakraborty executed any Will? (iii) Whether the Will filed by the petitioner in the instant case is a genuine one or not? (iv) Whether the petitioner entitled to get any relief? 25. As already discussed the evidence was led at the trial and the Additional District Judge was not satisfied as regards the genuineness of the Will and consequently declared that the probate of that Will cannot be granted. As corollary to that, it has to be held that the testator did not execute any Will. 25. As already discussed the evidence was led at the trial and the Additional District Judge was not satisfied as regards the genuineness of the Will and consequently declared that the probate of that Will cannot be granted. As corollary to that, it has to be held that the testator did not execute any Will. But the solitary point which requires consideration is that whether the propounder could remove the suspicion from the mind of the Court in as much as that it is the duty of the propounder to remove all suspicious surroundings and satisfy the conscience of the Court that the instrument propounded is the last Will of the testator. What is to be noted that the executor of the Will is not the beneficiary in this case rather the respondent No. 7 is the beneficiary and at the time of execution of the Will he had been purportedly attributed with no role. Apart that, the testator has provided some explanation why he had decided to bequeath the property to his eldest son. The respondent No. 1 even though alleged that the said explanation was unreal as the fund was never received by the testator at the time of purchase of the bequeathed property. 26. To rejoin squarely, the propounder of the Will had only relied on his oral testimonies. However, the respondent No. 1 has stated that his father retired in the year 1966 and admitted that his father retired as the Food Inspector with pension of Rs.76/- per month from 08.11.1966 and the said land according to the Will was purchased on 17.03.1971 and the land, as scheduled in the Will in question, was also mutated in his name. One of the interesting features that surfaced from the statement of the PW 1 that the testator allowed the respondent No. 1 to construct a homestead on the land as purportedly bequeathed by the testator. He stated that "my brother Samir Chakraborty also used to reside in the homestead during the lifetime of my father. The homestead was constructed by the fund of Samir Chakraborty. The construction was made prior to the execution of the Will." This statement stands as the unequivocal testimony that the testator allowed the respondent No. 1 to invest a huge fund for construction in the land which he purchased purportedly from the fund provided by his eldest son namely Sudhir Chakraborty. 27. The construction was made prior to the execution of the Will." This statement stands as the unequivocal testimony that the testator allowed the respondent No. 1 to invest a huge fund for construction in the land which he purchased purportedly from the fund provided by his eldest son namely Sudhir Chakraborty. 27. This circumstance has definitely created a suspicion why then the testator as the father denied the respondent No. 1. If he was in the testamentary capacity he would have thought that it would deprive his younger son from his investment made on constructing the house on the land so bequeathed by him. Apart that the trustworthiness of the PW 1 had suffered a deficiency as reflected in the waveringness of his statement in the Court. My father executed the Will in our presence. I was not appointed by my father in any capacity for the Will then says I was a witness of the said Will then says I was given to file this petition. This is the Will executed by my father which was written by Anath Bandhu Chakraborty. 28. The respondent No. 1 from the first instance had challenged the genuineness of the signature as was available in the questioned Will and from the excerpted part of the judgment it surfaced that the handwriting experts failed to come to a conclusion on comparison of the signature in the said Will and the signature available in the petition for mutation dated 08.08.1972 (Exbt. 2). 29. Suspicion as regards authenticity of the signature on the questioned Will as underlined by the respondent No. 1 herein, has been left unquenched in as much as the ground in the report that unless a contemporaneous signature, meaning a signature given by the testator during the year 1975-1978 any purposeful comparison is possible, was not attended to. This may be the probable reason why the Additional District Judge did not resort to the task of making a comparison of those two signatures marked A-1 and Q-3 in exercise of the powers provided under Section 73 of the Evidence Act. As discussed, the scribe (the PW 2) stated nowhere that the questioned Will was written as per the direction of the testator. He identified his own signature but he did not identify any signature of the witnesses. As discussed, the scribe (the PW 2) stated nowhere that the questioned Will was written as per the direction of the testator. He identified his own signature but he did not identify any signature of the witnesses. Identification of the signature of the testator by the PW 2 cannot entirely remove the suspicion as his acquaintance is momentary, not a protracted one. 30. The scribe did not state whether any son of the testator or the other persons including the attesting witnesses were present at the time of execution. He blandly stated "after writing of the Will I read over the same to Sri Jatindra Kumar Chakraborty who being satisfied executed the same in my presence and in presence of the witnesses". He did not give any description of the witnesses or their number. If the PW 1 is not believed, execution of the questioned Will entirely be shrouded with suspicion. More interestingly even the respondent No. 7 was not examined to establish that he provided the fund to his father. Moreover, the other surviving witness who has been shown to have signed the Will as the witness was not adduced by the executor and without giving any explanation whatsoever. 31. In Durga v. Anil Kumar, as reported in (2005) 11 SCC 189 the Apex Court laid down a golden principle as under: When the Will was duly proved and the witness has deposed that the testator was in a sound disposing mind at the time of execution of the Will and that he had put her thumb impression on the Will after examination in presence of each other. The minor contradiction while giving the details of the execution of the Will shall not persuade the Court to discard their testimony. 32. In Meenakshiammal and others v. Chandrasekhar and another, as reported in (2005) 1 SC 280 the Apex Court held that: 19. In the case of Chinmoyee Saha v. Debendra Lal Saha, AIR 1985 Cal 349 , it has been held that if the propounder takes a prominent part in the execution of the will, which confers a substantial benefit on him, the propounder is required to remove the doubts by clear and satisfactory evidence. In the case of Chinmoyee Saha v. Debendra Lal Saha, AIR 1985 Cal 349 , it has been held that if the propounder takes a prominent part in the execution of the will, which confers a substantial benefit on him, the propounder is required to remove the doubts by clear and satisfactory evidence. Once the propounder proves that the will was signed by the testator, that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the disposition and put his signature out of his own free will, and that he signed it in presence of the witnesses who attested it in his presence, the onus, which rests on the propounder, is discharged and when Allegation of undue influence, fraud or coercion is made by the caveator, the onus is on the caveator to prove the same. 20. In the case of Ryali Kameswara Rao v. Bendapudi Suryaprakasarao and Ors., AIR 1962 AP 178 this Court while discussing the provisions of Section 63 of the Succession Act, 1925, has held that the suspicion alleged must be one inherent in the transaction itself and not the doubt that may arise from conflict of testimony which becomes apparent on an investigation of the transaction. That suspicious circumstances cannot be defined precisely. They cannot be enumerated exhaustively. They must depend upon the facts of each case. When a question arises as to whether a will is genuine or forged, normally the fact that nothing can be said against the reasonable nature of its provisions will be a strong and material element in favour of the probabilities of the will. Whether a will has been executed by the testator in a sound and disposing state of mind is purely a question of fact, which will have to be decided in each case on the circumstances disclosed and the nature and quality of the evidence adduced. When the will is alleged to have been executed under undue influence, the onus of proving undue influence is upon the person making such allegation and mere presence of motive and opportunity are not enough. 33. In Madhukar D. Shende v. Tarabai Aba Shedage, as reported in (2002) 2 SCC 85 the Apex Court further held that: 8. When the will is alleged to have been executed under undue influence, the onus of proving undue influence is upon the person making such allegation and mere presence of motive and opportunity are not enough. 33. In Madhukar D. Shende v. Tarabai Aba Shedage, as reported in (2002) 2 SCC 85 the Apex Court further held that: 8. The requirement of proof of a will is the same as any other document excepting that the evidence tendered in proof of a will should additionally satisfy the requirement of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Evidence Act, 1872. If after considering the matters before it, that is, the facts and circumstances as emanating from the material available on record of a given case the Court either believes that the will was duly executed by the testator or considers the existence of such fact so probable that any prudent person ought, under the circumstances of that particular case, to act upon the supposition that the will was duly executed by the testator, then the factum of execution of will shall be said to have been proved. The delicate structure of proof framed by a judicially trained mind cannot stand on week foundation nor survive any inherent defects therein but at the same time ought not to be permitted to be demolished by wayward pelting of stones of suspicion and supposition by wayfarers and waylayers. What was told by Baron Alderson to the Jury in R. v. Hodge, 1838 2 Lewis CC 227 may be apposite to some extent. The mind was apt to make a pleasure in adapting circumstances to one another and even in straining them a title, if need be, to force then to form parts of one connected hole; and the more ingenuous the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete. The conscience of the Court has to be satisfied by the propounder of will adducing evidence so as to dispel any suspicious or unnatural circumstances attaching to a will provided that there is something unnatural or suspicious about the will. The conscience of the Court has to be satisfied by the propounder of will adducing evidence so as to dispel any suspicious or unnatural circumstances attaching to a will provided that there is something unnatural or suspicious about the will. The law of evidence 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. Well founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict--positive or negative. 9. It is well-settled that one who propounds a will must establish the competence of the testator to make the will at the time when it was executed. The onus is discharged by the propounder adducing prima-facie evidence proving the competence of the testator and execution of the will in the manner contemplated by law. The contestant opposing the will may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the Court affirmatively that the testator did know well the contents of the will and in sound, disposing capacity executed the same. The factors, such as the will being a natural one or being registered or executed in such circumstances and ambience, as would leave no room for suspicion, assume significance. 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. Who are the persons propounding and supporting a will as against the person disputing the will and the pleadings of the parties would be relevant and of significance. 34. In Sridevi and others v. Jayaraja Shetty and others, as reported in (2005) 2 SCC 784 the Apex Court held that: 11. It is well settled proposition of law that mode of proving the 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, 1925. It is well settled proposition of law that mode of proving the 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, 1925. The onus to prove the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and proof of the signature of the testator, as required by law, need be sufficient to discharge the onus. Where there are suspicious circumstances, the onus would again be on the propounder to explain them to the satisfaction of the Court before the will can be accepted as genuine. Proof in either case cannot be mathematically precise and certain and should be one of satisfaction of a prudent mind in such matters. In case the person contesting the will alleges undue influence, fraud or coercion, the onus will be on him to prove the same. As to what are suspicious circumstances have to be judged in the facts and circumstances of each particular case. For this see H. Venkatachala Iyengar v. B.N. Thimmajamma and Ors., AIR (1959) SC 443 and the subsequent judgments Ramachandra Rambux v. Champabai and Ors., (1964) 6 SCR 814 ; Surendra Pal and Ors. v. Dr. (Mrs.) Saraswati Arora and Anr., (1974) 2 SCC 600 ; Smt. Jaswant Kaur v. Smt. Amrit Kaur and Ors., (1977) 1 SCC 369 and Meenakshiammal v. Chandrasekaran and Anr., AIR 20051 SCC 280. 12. In the light of this settled position of the law, we have to examine as to whether the will under consideration had been duly executed and the propounders of the will had dispelled the suspicious circumstances surrounding the will. 13. Although the Trial Court as well as the High Court recorded a finding of fact that the will had been duly executed, but on the insistence of the counsel for the parties we have gone through the evidence of the scribe, two attesting witnesses and hand-writing expert at length. 14. 13. Although the Trial Court as well as the High Court recorded a finding of fact that the will had been duly executed, but on the insistence of the counsel for the parties we have gone through the evidence of the scribe, two attesting witnesses and hand-writing expert at length. 14. The propounder of the will has to show that the will was signed by the testator; that he was at the relevant time in sound disposing state of mind; that he understood the nature and effect of dispositions and had put his signatures to the testament of his own free will and that he had signed it in the presence of the two witnesses who attested in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. DW 2, the scribe, in his testimony has categorically stated that the will was scribed by him at the dictation of the testator. The two attesting witnesses have deposed that the testator had signed the will in their presence while in sound disposing state of mind after understanding the nature and effect of dispositions made by him. That he signed the will in their presence and they had signed the will in his presence and in the presence of each other. In cross-examination, the appellants failed to elicit anything which could persuade us to disbelieve their testimony. It has not been shown that they were in any way interested in the propounders of the will or that on their asking they could have deposed falsely in Court. Their testimony inspires confidence. The testimony of the Scribe (DW 2) and the two attesting witnesses (DWs 3 & 4) is fully corroborated by the statement of handwriting expert (DW 5). The will runs into 6 pages. The testator had signed each of the 6 pages. Hand-writing expert compared the signatures of the testator with his admitted signatures. He has opined that the signatures on the will are that of the testator. In our view, the will had been duly executed. 35. The Apex Court further deliberated on 'onus' in Pentakota Satyanarayana and others v. Pentakota Seetharatnam and others, as reported in (2005) 8 SCC 67 and held that: 27. We have already referred to the arguments advanced by both sides on adoption. In our view, the will had been duly executed. 35. The Apex Court further deliberated on 'onus' in Pentakota Satyanarayana and others v. Pentakota Seetharatnam and others, as reported in (2005) 8 SCC 67 and held that: 27. We have already referred to the arguments advanced by both sides on adoption. Our attention was drawn to the findings recorded by the trial Court and by the High Court on this aspect and the relevant portion of the oral and documentary evidence was also relied on by both sides. The evidence relied upon is that of PWs 1, 3 & 6, DW 2 and DW 3. Their evidence, in our opinion, falls short of the required proof in law. The respondents, in our view, have a heavy onus to discharge the burden lies on them to prove the factum of adoption. Krishna Bhagavan, the respondent herein seeks to exclude the natural line of succession to the property by alleging adoption. The instant case is a classic example where the alleged adoptive father himself filed a written statement denying adoption. This apart, the following circumstances negate the genuineness of the adoption. This Court in the case of Rahasa Pandiani v. Gokulnanda Panda, AIR 1987 SC 339 held as under:-- An adoption would divert the normal and natural course of succession. Therefore the Court has to be extremely alert and vigilant to guard against being ensnared by schemers who indulge in unscrupulous practices out of their lust for property. If there are any suspicious circumstances, just as the propounder of the Will is obliged to dispel the cloud of suspicion, the burden is on one who claims to have been adopted to dispel the same beyond reasonable doubt. In the case of an adoption which is claimed on the basis of oral evidence and is not supported by a registered document or any other evidence of a clinching nature, if there exist suspicious circumstances, the same must be explained to the satisfaction of the conscience of the Court by the party contending that there was such an adoption. (para 4) (emphasis added) 29. This Court held in Kishori Lal v. Chaltibai, AIR 1959 SC 504 . (para 4) (emphasis added) 29. This Court held in Kishori Lal v. Chaltibai, AIR 1959 SC 504 . We can do no better than to quote the relevant passage from the above judgment which reads as under:-- As an adoption results in changing the course of succession; depriving wives and daughters of their rights and transferring properties to comparative strangers or more remote relations it is necessary that the evidence to support it should be such that it is free from all suspicion of fraud and so consistent and probable as to leave no occasion for doubting its truth. Failure to produce accounts, in circumstances such as have been proved in the present case, would be a very suspicious circumstance. The importance of accounts was emphasized by the Privy Council in Sootrugun v. Sabitra, in (1834) 2 Knapp 287; in Diwakar Rao v. Chandanlal Rao, in AIR 1916 PC 81; in Kishorilal v. Chunilal, (1908) 36 IA 9; in Lal Kumar v. Charanji Lal, I (1909) 37 IA 1 and in Padamla v. Fakira Debya, in AIR 1931 PC 84. 36. In this case the executor of the Will did not anywhere state that Anath Bandhu Chakraborty who scribed the Will was present during the execution of the Will. He stated that "Dhirendra Chakraborty Manoranjan Chakraborty (now deceased) and myself were the attesting witnesses of the Will. My father executed the will in our residence at Joynagar, Vibekananda Lane. My father executed the Will in our presence". Nowhere he stated that at the relevant point of time the testator was in the sound testamentary capacity or in the disposing mind. Even though the PW 2 stated that the Will was executed in his presence, he did not state that at the relevant point of time the testator was in the sound testamentary capacity or disposing mind. He merely stated that the testator was in good health where it is found that the testator died less than a year from the date of execution of the said unregistered Will. As such it cannot be stated that there is legal evidence to establish that the purported Will was executed by the testator in the sound testamentary capacity or in the disposing mind. Apart that, some other ancillary questions those were raised are required to be attended to. 37. As such it cannot be stated that there is legal evidence to establish that the purported Will was executed by the testator in the sound testamentary capacity or in the disposing mind. Apart that, some other ancillary questions those were raised are required to be attended to. 37. It has been stated for the respondent No. 1 that 'the delay' is one of the features which has created further suspicion in the circumstances. In Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani, as reported in AIR 1983 Bom 268 , Bombay High Court dwelled upon this aspect and held as under: (a) Under the Limitation Act no period is advisedly prescribed within which an application for probate, letters of administration or succession certificate must be made; (b) the assumption that under Article 137 the right to apply necessarily accrues on the date of the death of the deceased, is unwarranted; (c) such an application is for the Court's permission to perform a legal duty created by a Will or for recognition as a testamentary trustee and is a continuous right which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed; (d) the right to apply would accrue when it becomes necessary to apply which may not necessarily be within 3 years from the date of the deceased's death. (e) delay beyond 3 years after the deceased's death would arouse suspicion and greater the delay, greater would he the suspicion; (f) such delay must he explained, hut cannot he equated with the absolute bar of limitation; and (g) once execution and attestation are proved, suspicion of delay no longer operates. 38. Madhya Pradesh High Court in Balwant v. Mainabai Das, reported in AIR 1991 MP 11 has decided that: 18. This brings us to the question of limitation in relation to an application for probate. In the decision in Ramanand Thakur's case ( AIR 1982 Pat 87 ) it has been observed as under: In the case of an application for grant of probate or Letters of Administration, it is difficult to find out as to when the right to apply accrues and unless that date is fixed, there is no question of starring of the period of limitation. The right to apply for a probate accrues from day to day so long as the will remains unprobated. In other words, the right to apply accrues every day and the cause of action for an application for probate arises every moment so long as the will remains unprobated and, therefore, for such an application there is no period of limitation. 39. In this case the execution of the will has not been proved as the testamentary capacity of the testator has not been at all established by the propounder or the executor. Apart that, probate of the said Will has been sought after long time when a partition suit was filed by the respondent No. 1. Mr. A.K. Bhowmik, learned Senior counsel submitted that the necessity arose for discharging the requirement under Section 213 of the Indian Succession Act, 1925. Had the execution of the Will been proved, this Court would have observed that the delay was absolutely an irrelevant factor. But the execution having not proved as per requirement and as discussed the suspicious surrounding having not removed the finding of the Additional District Judge, West Tripura, Agartala as excerpted even though is completely misplaced and wholly unwarranted but for reasons so assigned, this Court is inclined to hold that the appellant or the beneficiary is not entitled to probate of the will in question. In the result, the appeal stands dismissed. Send down the LCRs forthwith. Appeal dismissed.