CAV Judgment Jayanandan Singh, J.- Originally, Test Case No.2 of 2002 was filed by the applicant Dipak Kumar Banerjee under Section 276 of the Indian Succession Act, 1925 (hereinafter referred to as "the Act") for grant of Probate in respect of a registered Will dated 15.7.1968 executed by late Sri Sunil Kumar Banerji. 2. It is stated in the application that late Sunil Kumar Banerji, during his lifetime, executed and registered a Will on 15.7.1968 at Sub-Registry Office, Asansol in favour of his wife Gita Banerji and his son Dipak Kumar Banerji as joint executors of the Will, in sound state of mind and with full deliberation and without any pressure from anybody, in presence of two witnesses, namely, Bimal Krishna Chanda and Panchkari Mukherjee. It is stated that the testator was a Hindu governed by the Dayabhaga School of Hindu Law and he was a permanent resident of Mohalla-Dariyapur, P.S. Pirbahore, in the District-Patna. The testator died on 26.1.1983 leaving his widow Gita Banerji including three children, namely, Dipak Kumar Banerji, Mrs. Amita Chakraborty wife of Sri Subrata Kumar Chakraborty and Kumari Nandita Banerji. 3. Before filing of the Test Case, co-executor, namely, Gita Banerji died on 30.5.1999. Therefore, the case was filed by the only surviving executor named in the Will, i.e. Dipak Kumar Banerjee. 4. It is stated in the Will that all immovable properties in the houses and lands left by the Testator Sunil Kumar Banerji will devolve on his wife but she will not alienate her properties to anyone. It is stated that after the death of Gita Banerji, Dipak Kumar Banerji, son of the testator will have absolute right to execute the Will. 5. The value of the property under the Will for which Probate is sought to be granted, as mentioned in Schedules-A & B is worth Rs. 32,50,753/-. Expenses of Rs. 1,000/- towards funeral are mentioned in Schedule-B of the application. 6. Probate duty of Rs. 30,179.05/- has been deposited by the applicant vide challan no. 259 dated 23.9.2002. 7. Names of the Near Relatives are mentioned in paragraph 10 of the application. They are, (1) Mrs. Amita Chakraborty, (2) Joy Chatterjee, and (3) Deep Chatterjee. 8. 32,50,753/-. Expenses of Rs. 1,000/- towards funeral are mentioned in Schedule-B of the application. 6. Probate duty of Rs. 30,179.05/- has been deposited by the applicant vide challan no. 259 dated 23.9.2002. 7. Names of the Near Relatives are mentioned in paragraph 10 of the application. They are, (1) Mrs. Amita Chakraborty, (2) Joy Chatterjee, and (3) Deep Chatterjee. 8. By order of the Court dated 15.11.2002, general citations were published in the Hindi newspaper "Hindustan" and in English Newspaper "Hindustan Times" and an affidavit to this effect was filed on 5.2.2003 enclosing therewith original copies of the newspapers. Special citations were also issued to the Near Relatives. 9. After service of citations, caveat and objections were filed by Near Relative No.1 Amita Chakraborty on 24.4.2003. Another caveat and objection were filed by Near Relative Nos. 2 and 3 on 1.7.2003. This Court by order dated 25.7.2003 directed the Test Case to be converted into Test Suit and thereafter, Test Suit No.4 of 2003 was instituted. 10. On 19.4.2004 after hearing learned counsel for the parties and after going through the proposed issues filed by the parties, following issues were framed for consideration in the present suit:- (1) Whether Will dated 15.7.1968 was executed by Sunil Kumar Banerjee of his own volition, without there being any coercion, pressure or undue influence on him, in fit state of mind and health? (2) Whether the suit as framed is maintainable? (3) Whether the long delay in submitting this suit seeking probate of the Will raises suspicion against the genuineness of the Will? (4) Whether the plaintiff is entitled to get the probate of the Will in question? 11. This suit was dismissed for want of prosecution by order dated 10.5.2004. However, the same was restored by this Court by order dated 5.8.2005 passed in MJC No. 1046 of 2004. 12. Plaintiff Dipak Kumar Banerjee was examined as P.W. 1. In his examination-in-chief, this witness supported the statements made in the examination-in-chief filed by him on an affidavit. He identified the original Will executed by the Testator, which was marked as Ext.-1. He also identified the signature of the Testator on the top of every page of the Will and also on the back of first page of the Will, which were marked as Ext.-2 series. He identified the original Will executed by the Testator, which was marked as Ext.-1. He also identified the signature of the Testator on the top of every page of the Will and also on the back of first page of the Will, which were marked as Ext.-2 series. He further identified the signatures of the attesting witnesses, namely, B.K. Chanda and Panchkauri Mukherjee on the last page of the Will, which were marked as Exts.-3 and 4. In his cross-examination, this witness stated that he was not present when the Will was being executed. He stated that Nandita Banerjee @ Nandita Chattejee was his youngest sister. He came to know about the Will executed by his late father after the death of his mother and sister. In his further cross-examination, this witness stated that the subject matter of the Will were situate in Patna town and he was not aware as to why his father had requested the persons of Bardhawan to become attesting witnesses over the Will. This witness was further cross-examined on behalf of Nandita Chatterjee on 20.12.2007. In his said cross-examination, this witness stated that he came to learn about the Will in the year 2001. He was not informed about the Will either by his father or his mother. This witness was also cross-examined on behalf of the two sons of Nandita Chatterjee, namely, Deep and Joy Chatterjee on 3.1.2008. He denied the suggestion that he had prior knowledge of the Will and he had got the said Will executed in connivance with the attesting witnesses. He also denied that the Will was forged and fabricated. 13. Simal Krishna Chanda, one of the attesting witnesses of the will, was examined as P.W. 2. In his deposition, he supported the statements contained in the examination-in-chief filed by him on affidavit. There was marathon cross-examination of this witness on behalf of Deep Chatterjee and Joy Chatterjee sons of late Nandita Chatterjee. This witness stated that the Testator Sunil Kumar Banerji had executed a Will on 15.7.1968 over which he alongwith Panchkauri Mukherjee had put signature as witnesses. He identified his own signature on the Will as attesting witness as well as signatures of the Testator and other attesting witness Panchkauri Mukherjee, which were already marked as Exhibits during Examination-in-Chief of the plaintiff. He identified his own signature on the Will as attesting witness as well as signatures of the Testator and other attesting witness Panchkauri Mukherjee, which were already marked as Exhibits during Examination-in-Chief of the plaintiff. He stated that the Will was registered in the Asansol Court in presence of Court Officer and staff. Testator was present in court alongwith both the attesting witnesses. This witness denied the suggestion that the Testator had not signed over the Will. He stated that the Will was a genuine document duly executed by the Testator and registered in the Asansol Court. 14. Panchkauri Mukherjee, another attesting witness, was examined on commission. During his examination, this witness stated that the Will was not executed in his presence. He stated that he did not know another attesting witness Bimal Krishna Chanda. However, he accepted that he put his signature on the Will, as witness no. 2. He stated that since the matter is 40 years old, he did not recollect about execution of the Will. On seeing the photocopy of the affidavit sworn by him on 22.1.2002, he accepted that the signature appearing in the said xerox-copy of the affidavit resembles his signature. He stated that this affidavit was brought by the plaintiff Dipak Kumar Banerjee and he had requested him to swear the said affidavit and on his request, he had sworn the said affidavit. 15. One Dr. Arun Murari was examined as P.W. 4. By profession, he is a doctor. He stated that the Testator, after his retirement, returned to Patna and resided here. He used to treat him for his illness like blood pressure. He was not suffering from any other serious illness. This witness stated that he was the neighbour of the Testator at Patna. 16. During the pendency of this suit, Defendant No.1 Amita Chakraborty died on 25.3.2008, leaving behind her husband and three sons. On a substitution petition being filed, this Court by order dated 26.6.2008, ordered for substitution of names of her legal heirs. 17. Evidence of the plaintiff was closed vide order dated 5.2.2010. In spite of several adjournments, no one turned up on behalf of the defendants and therefore, evidence of defendants was closed vide order dated 26.3.2010. Thereafter, substituted defendants filed a petition for recall of P.W. 3 for his cross-examination. Plaintiff filed counter affidavit to the said petition. 17. Evidence of the plaintiff was closed vide order dated 5.2.2010. In spite of several adjournments, no one turned up on behalf of the defendants and therefore, evidence of defendants was closed vide order dated 26.3.2010. Thereafter, substituted defendants filed a petition for recall of P.W. 3 for his cross-examination. Plaintiff filed counter affidavit to the said petition. By order dated 27.1.2012, this Court, after hearing the parties, found that there was no merit in the said petition of the defendants and the same was dismissed. 18. The suit was placed for hearing. Learned counsel for the plaintiff filed his written arguments. However, neither any written arguments were filed by the defendants not any arguments were made by their learned counsel. Mr. Yadav, learned counsel for the defendants informed this Court on 28.9.2012 that, in spite of his best efforts he could not get clear instructions from his clients to contest the suit. Hence, hearing was concluded. 19. In view of the evidence of the witnesses, this Court has perused the original Will of the Testator. This Court finds that the Will is typed on three pages and it is a registered document. The Will was executed by the Testator in the joint name of his wife Gita Banerji and his son Dipak Kumar Banerji. However, before filing of the Test Case, co-executor, namely, Gita Banerji died on 30.5.1999. Therefore, the plaintiff Dipak Kumar Banerjee is the sole surviving executor of the Will. This Court also finds that both the attesting witnesses, namely, Bimal Krishna Chanda and Panchkauri Mukherjee have put their signature on the Will. One attesting witness Bimal Krishna Chanda identified the signature of the Testator on the Will. He also identified his own signature as also signature of another attesting witness. Another attesting witness, namely, Panchkauri Mukherjee being very old was examined on commission. Due to the matter being very old and due to his old age, he could not recognize another attesting witness Bimal Krishna Chanda by name nor did he recall as to whether any Will was executed by the Testator. However, he identified his own signature on the Will as witness no. 2. Thus, this Court finds that the Will conforms to the requirement of Section 263 of the Act. 20. These witnesses have stated that the Will is the last Will of the Testator duly executed by him and registered at Asansol Court. However, he identified his own signature on the Will as witness no. 2. Thus, this Court finds that the Will conforms to the requirement of Section 263 of the Act. 20. These witnesses have stated that the Will is the last Will of the Testator duly executed by him and registered at Asansol Court. They have also stated that the Testator was mentally and physically fit at the time of execution of the Will. This Court further finds that there is nothing on record to show that this Will was not the last document executed by the Testator for management of his properties and the same is not the genuine Will duly executed by him in his full senses, without any undue influence and coercion. Witnesses were cross-examined by the defendants but none of them, except attesting witness Panch kauri Mukherjee, denied that the Will was not executed by the Testator. Panch kauri Mukherjee did not deny that the signature of the Will was not his, but due to old age he could not recall as to whether any Will was executed by the Testator or not. 21. After evidence of plaintiff's witnesses, when defendants did not produce any witness on their behalf, the suit was placed for argument. Plaintiff, in the meantime, filed written notes of arguments also. However, defendants made themselves absent for a long time and their advocates were also not appearing in the case. Thereafter, this Court called for Mr. S.S.P. Yadav, learned counsel appearing for the substituted defendants and requested him to assist this Court and make arguments. Mr. Yadav took time to obtain necessary instructions from the defendants. However, on 28.9.2012, Mr. Yadav informed this Court that, in spite of his best efforts, he could not get clear instructions from the defendants to contest the suit. Therefore, he refrained from making any arguments on behalf of the defendants. 22. From the attitude of the defendants and non-furnishing of instructions to their learned counsel, it appears that the defendants are no more interested in contesting the suit. In other words, it appears that they have no objection if probate is granted in favour of the plaintiff. 23. As stated earlier, list of assets and schedule of funeral expenses are annexed with the application as Schedules-A and B respectively. Original Will was filed in the Court separately in a sealed cover. In other words, it appears that they have no objection if probate is granted in favour of the plaintiff. 23. As stated earlier, list of assets and schedule of funeral expenses are annexed with the application as Schedules-A and B respectively. Original Will was filed in the Court separately in a sealed cover. This Court hence finds that the application tiled by the plaintiff under Section 276 of the Act is in accordance with the requirements of law. 24. In the circumstances, this Court is satisfied that the Will is genuine and contains last wishes of the Testator, duly executed by him in full consciousness and in a sound state of mind and body and duly attested by the witnesses and it satisfies the requirements of law. 25. As a result, this suit is allowed. Let a probate be issued in favour of the plaintiff Dipak Kumar Banerjee in terms of the Will in respect of the properties covered by the Will.