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Tripura High Court · body

2013 DIGILAW 5 (TRI)

Abdul Mamin v. Abdul Gani

2013-05-06

S.C.DAS

body2013
JUDGMENT S.C. Das, J. 1. This appeal under Section 299 of the Indian Succession Act, 1925 is directed against the judgment and order, dated 07.05.2003, passed by learned Addl. District Judge, Sonamura, West Tripura in Case No. Misc. (Probate) 02 of 2001, whereby and where-under the learned Addl. District Judge granted certificate of Probate of the Will dated 07.02.1994, executed by one Parija Bibi in respect of her property mentioned in the Will. Heard learned Sr. counsel, Mr. S.M. Chakraborty, assisted by learned counsel Ms. D. Das for the appellant and learned Sr. counsel, Mr. B. Das assisted by learned counsel, Mr. D. Chakraborty for the respondent. 2. Brief facts: 2.1 Parija Bibi, Wife of Abdul Hamid, a resident of village Dhaliai, P.S. Sonamura, District West Tripura, alleged to have executed a Will on 07.02.1994 in respect of her properties mentioned in the Schedule of the said Will bequeathing the properties to her foster son (adopted son Abdul Gani), the respondent herein, and by dint of the assertions made in the Will she appointed Abdul Gani as the executor of the Will. The testator Parija Bibi, a Bengali Muslim woman, alleged to have executed the Will on 07.02.1994 and she died on 25.05.94 at Sonamura. The propounder Abdul Gani on 07.03.1995 filed an application under Section 276 of the Indian Succession Act praying for granting Probate of the Will and the Will was annexed with the petition. The petition was originally filed in the Court of District Judge, West Tripura, Agartala and was registered as Misc.(Probate) No. 07 of 1995 which was subsequently transferred to the Court of Additional District Judge, Sonamura and was renumbered as Misc. (Probate) 02 of 2001. 2.2 It was contended by the petitioner that Parija Bibi and her husband Abdul Hamid adopted the petitioner Abdul Gani as their son since they had no issue. Abdul Gani knew nothing about his parentage and his foster parents i.e. Parija Bibi and Abdul Hamid brought him up with all love and affection as their son and the petitioner also would respect and treat Parija Bibi and Abdul Hamid as his parents. Parija Bibi had no other legal heirs since she had no issue and the Will was executed while she was physically and mentally fit. Abdul Hamid was a witness to the Will and the Will was prepared according to the provisions of the Indian Succession Act. Parija Bibi had no other legal heirs since she had no issue and the Will was executed while she was physically and mentally fit. Abdul Hamid was a witness to the Will and the Will was prepared according to the provisions of the Indian Succession Act. The total 2.91/4 acres of land were involved in the Will which Parija Bibi bequeathed executing the Will. 2.3 The appellant being a son of younger sister of Parija Bibi contested the claim of the petitioner-respondent by filing a written objection, inter alia, stating that Parija Bibi at the time of her death left behind, her husband Abdul Hamid, who was entitled to 50% of the property as a legal heir of Parija Bibi. The appellant and his two sisters being the son and daughters of younger sister of Parija Bibi were entitled to inherit the rest 50% of the property of Parija Bibi. The impugned Will was not executed by Parija on her free will since she was aged about 80 years at the time of execution of the Will and she did not execute the Will in presence of the attesting witnesses and further the propounder of the Will i.e. the petitioner-respondent taking advantage of living together with the testator might have created unnatural pressure and thereby obtained the Will which was not executed by the testator at her free will. The Will was not genuine and likely to be forged and it was obtained by the propounder Abdul Gani with a view to grab the property of Parija Bibi. The appellant has further contended that the testator being a Muslim woman was not entitled to bequeath more than 1/3rd of the property. The propounder of the Will, being not a legal heir of the deceased, the testator, had no right to get bequeathed the entire property, depriving other legal heirs of testator, without their consent. The Will since not genuine document, the propounder was not entitled to get a certificate of Probate. 3. The trial Court considering the pleadings of the parties, formulated 6 (six) issues namely:- (A) Whether the suit is maintainable in its present form? (B) Is the Will dated 07.02.1994 executed by Parija Bibi genuine and valid? (C) Whether Parija Bibi had right to bequeath her all properties including her husband's property? 3. The trial Court considering the pleadings of the parties, formulated 6 (six) issues namely:- (A) Whether the suit is maintainable in its present form? (B) Is the Will dated 07.02.1994 executed by Parija Bibi genuine and valid? (C) Whether Parija Bibi had right to bequeath her all properties including her husband's property? (D) Was the testatrix Parija Bibi of sound mind and health and capable of understanding the recital of the Will at the time of executing the Will? (E) Whether the petitioner is adopted and legal heirs of Parija Bibi? (F) What other relief or relieves the parties are entitled to? 4. The petitioner, i.e. propounder of the Will, the respondent herein, examined himself as P.W. 1 and also examined 6 (six) more witnesses namely P.W. 2 Smt. Manowara Begum, P.W. 3 Smt. Mamata Khatoon (both full blood sisters of the appellant i.e. the Opposite Party Abdul Mamin), P.W. 4 Babul Ch. Pal, an Advocate's Clerk of Sonamura Bar who was the scribe of the Will and also a witness to the document. He obtained the thumb impression of the testator Parija Bibi in all 8 (eight) sheets of paper of the Will and proved the thumb impression. P.W. 5 Prabir Kumar Deb, a practicing Advocate of Sonamura Bar, prepared the Will as per the desire of the testator, read it over to her and he also signed the Will as an attesting witness. The husband of the testator namely Abdul Hamid was also present at the time of execution of the Will and he also put his thumb impression in the Will obtained by P.W. 4 in presence of P.W. 5. P.W. 7 Samsul Alam is an attesting witness to the Will. 5. As already stated earlier, the petition for granting probate was filed with the Will annexed and the original Will alleged to have executed by the testator has been proved as Exbt. 1 in 8 sheets of paper. LTI of Parija Bibi in every page of the Will marked as Exbt. P-3 series. Signature of scribe i.e. P.W. 4 Babul Ch. Pal has been proved as Exbt. 2. LTI of Abdul Hamid, husband of Parija Bibi, has been proved as Exbt. P-4. Signature of Advocate, Prabir Kr. Deb (P.W. 5) proved as Exbt. P-4/1. Signature of attesting witness Samsul Alam proved as P-4/2. 6. P-3 series. Signature of scribe i.e. P.W. 4 Babul Ch. Pal has been proved as Exbt. 2. LTI of Abdul Hamid, husband of Parija Bibi, has been proved as Exbt. P-4. Signature of Advocate, Prabir Kr. Deb (P.W. 5) proved as Exbt. P-4/1. Signature of attesting witness Samsul Alam proved as P-4/2. 6. The appellant i.e. Opposite Party Abdul Mamin examined himself as OPW 1 and also examined 3 more witnesses namely, OPW 2 Subhas Debnath, OPW 3 Humayun Miah and OPW 4 Zulfu Miah. Opposite Party also proved the documents filed by firisti dated 08.05.2002 and 04.06.2002 and those were marked as Exbt. D-1 series. 7. The trial Court decided all the issues except issue No. (E), in favour of the respondent i.e. the propounder of the Will and granted certificate of Probate. The opposite party, i.e. the appellant having felt aggrieved, filed the present appeal. 8. Mr. Chakraborty, learned Sr. counsel, appearing for the appellant, in course of his argument referring to Sections 139, 188 and 190 of B.R. Verma's Islamic Law, 6th Edition, has submitted that the propounder Abdul Gani was not a legal heir of the deceased Parija Bibi. He had claimed to be an adopted son of Parija Bibi and her husband but no proof to that effect placed on record. Mohammedan Law does not permit adoption and so, in ordinary course, Abdul Gani was not entitled to inherit property of Parija Bibi. According to the Mohammedan Law, on the death of Parija Bibi her properties would evolve to her husband and her sister's son and daughters, (sister Banija Bibi being predeceased her). He has fairly submitted that Parija Bibi being a Mohammedan woman, might have executed a Will but there is no authority to bequeath in excess of 1/3rd of her property without consent of the legal heirs after her death. The Will was, therefore, not valid since Parija Bibi by dint of that Will bequeathed her entire property in favour of the propounder, Abdul Gani. The next argument advanced by Mr. Chakraborty, learned Sr. counsel is that to prove the Will, the propounder examined only one witness i.e. P.W. 7. The Will was, therefore, not valid since Parija Bibi by dint of that Will bequeathed her entire property in favour of the propounder, Abdul Gani. The next argument advanced by Mr. Chakraborty, learned Sr. counsel is that to prove the Will, the propounder examined only one witness i.e. P.W. 7. Admittedly, husband of Parija Bibi, namely Abdul Hamid died on 31.07.1995 but other attesting witness namely, Joynal Abedin since was alive, the propounder would examine him to prove the Will and non examination of the living attesting witness creates a doubt in respect of authenticity of the Will. He has, further argued that the petition for granting Probate was not verified as per the provisions prescribed in Section 281 of the Indian Succession Act and therefore, the petition being inherently defective, the trial Court would reject it at the threshold. In support of his contention, he has referred a case law reported in AIR 1929, Lahore 444 (1) (Allah Baksh & Ors. vs. Muhammad Umar & Ors.). 9. Countering the submission of learned senior counsel, Mr. Chakraborty, learned Sr. counsel, Mr. Das for the respondent has submitted that the testator Parija Bibi executed the Will in presence of her husband Abdul Hamid and other attesting witnesses and the Will was written sitting in the Court premises at Sonamura by a most independent person i.e. a practicing Advocate of the Bar and at his dictation, his Clerk (P.W. 4) wrote the Will as per the desire of the testator and the learned Advocate, P.W. 5 read it over to her to which she admitted it to have been correctly written. He has also submitted that the testator is a Bengali Muslim woman and the Will was scribed in Bengali in details reflecting the intention of the testator and further reflecting the reasons she assigned for disposing the property in favour of her adopted son, the propounder Abdul Gani. 9.1 She has appointed the propounder, Abdul Gani as the executor of the Will to give effect to it after her death, applying before the Court for granting Probate etc. It is also submitted by learned counsel, Mr. Das that the testator did not forget to see the interest of her husband and the son and daughter of her deceased younger sister Banija Bibi i.e. mother of the appellant and P.Ws. 2 and 3. It is also submitted by learned counsel, Mr. Das that the testator did not forget to see the interest of her husband and the son and daughter of her deceased younger sister Banija Bibi i.e. mother of the appellant and P.Ws. 2 and 3. The petitioner proved the Will examining the attesting witnesses and the scribe of the Will and so, there was nothing wrong in granting a certificate of Probate. It is also contended by learned counsel, Mr. Das that the verification to the petition was signed by the propounder and an affidavit was signed by one of the attesting witnesses namely Joynal Abedin and so, the legal formalities were duly complied and while rendering justice, such technicalities should be ignored and in support of his contention he has referred a decision in the case of K. Rudrappa vs. Shivappa reported in AIR 2004 SCW 5106. 10. Having carefully gone through the petition, written objection, evidence on record and the judgment passed by the learned trial Court, I find the following undisputed, rather, admitted facts: (i) Parija Bibi and Banija Bibi were two daughters of one Abdul Jalil alias Jalil Miah and on the death of Abdul Jalil alias Jalil Miah, Parija and Banija equally inherited the properties of Abdul Jalil. (ii) The properties mentioned in the schedule of the Will belonged to Parija bibi. (iii) Parija Bibi and Abdul Hamid were married couple and they had no issue. (iv) Both Parija Bibi and Abdul Hamid were illiterate and they used to put their thumb impressions. (v) Banija Bibi and Sona Miah were married and Banija Bibi left behind one son Abdul Mamin, the objector-appellant herein, and two daughters Manoara Begum (P.W. 2) and Mamata Khatun (P.W. 3). (vi) Parija Bibi and Abdul Hamid took Abdul Gani (propounder of the Will, the respondent herein, as their foster son and/or adopted son in the early childhood of Abdul Gani and he was all along residing with his foster parents and was brought up by them as their son. (vii) The testator and her husband belonged to Mohammedan community guided by Hanafi Law of inheritance. (viii) No documentary evidence placed on record that Abdul Gani was adopted by Parija Bibi and her husband Abdul Hamid as their son. 11. (vii) The testator and her husband belonged to Mohammedan community guided by Hanafi Law of inheritance. (viii) No documentary evidence placed on record that Abdul Gani was adopted by Parija Bibi and her husband Abdul Hamid as their son. 11. P.W. 7, an attesting witness to the Will in his deposition made a convincing statement that Parija Bibi expressed her desire to make a Will bequeathing her properties to her adopted son Abdul Gani and therefore, the witness proposed her to come to Sonamura Court and that he will engage a lawyer to prepare the Will. Accordingly on the date of execution of the Will, Parija Bibi with her husband went to Sonamura Court and the witness engaged P.W. 5, Advocate Prabir Kr. Deb to prepare the Will of Parija Bibi and accordingly, the Will was prepared in his presence. He has also stated that other attesting witnesses including husband of Parija Bibi were present when the Will was prepared at the instance of Parija Bibi. The P.Ws. 4 and 5 are the most independent witnesses to the Will. They also may be treated as the attesting witnesses since the Will was dictated by P.W. 5 as per the statement and desire of Parija Bibi and it was written by P.W. 4, the Clerk of P.W. 5, learned Advocate, and, after the Will was prepared it was read over by P.W. 5, to the testator Parija Bibi and she admitted it to have correctly written. The Will was written in Bengali and read over to the testator in Bengali and P.Ws. 4 and 5 made categorical statement that it was written according to the desire of the testator and it was read over to her and she admitted it to have been correctly recorded and put her LTI in every page of the Will which has been proved by the witnesses. It is an undisputed fact that Abdul Hamid, the husband of Parija Bibi died on 31.07.95 i.e. after the death of Parija Bibi. The thumb impression of Abdul Hamid has been proved by the witness. P.Ws. 4, 5 and 7 may well be treated as attesting witnesses to the Will executed by Parija Bibi and therefore, legal requirement in respect of proof of the Will was well established. The thumb impression of Abdul Hamid has been proved by the witness. P.Ws. 4, 5 and 7 may well be treated as attesting witnesses to the Will executed by Parija Bibi and therefore, legal requirement in respect of proof of the Will was well established. Only living witness to the Will namely, Joynal Abedin has not been examined as a witness but on perusal of the record, it is found that Joynal Abedin filed an affidavit in support of the amendment petition of the petitioner (respondent herein) and supported the Will. So, except husband of the testator, who has died in the meantime, all other witnesses are on record and the trial Court committed no wrong in appreciating the execution of the Will by the testator. 12. O.P.W. 1 in his deposition stated that on the date of alleged execution of the Will, the testator sold some 5 gandas of land to Joynal Abedin and it might happen that at that time the petitioner obtained thumb impression of the testator in the Will and created the document falsely. This statement of OPW 1 rather supporting the case of the petitioner that the testator was in her full capacity of disposing her property, executed a registered deed on the date of execution of the Will. Since the Will has been proved by the Scribe, the maker of the Will and other witnesses, I find nothing wrong in the decision of the trial Court in granting Probate of the Will. 13. Let us now have a glimpse to the provisions of Islamic Law referred by learned counsel, Mr. Chakraborty. Section 76, 139, 182, 183, 188, 189 and 190 of B.R. Verma's Islamic Law prescribes thus:- "76. Adoption not recognized by Mohammedan law.--Adoption shall not confer upon any person the status of a child except in the following cases. (1) where subject to the provisions of the Shariat Act (XXVI of 1937), there is a valid custom of adoption; (2) where it is permitted by the provisions of any law for the time being in force." "139. Rules of exclusion of sharers.--A sharer will be excluded from inheritance as a sharer in accordance with the following rules: (1) Whoever is related to the deceased through a person who may participate as residuary shall be excluded by such person. Rules of exclusion of sharers.--A sharer will be excluded from inheritance as a sharer in accordance with the following rules: (1) Whoever is related to the deceased through a person who may participate as residuary shall be excluded by such person. (2) A sharer who is nearer in blood shall exclude the more remote: Provided that where any primary heir does not exist his nearest substituted heir-- (a) must succeed, and (b) would exclude any sharer whom the primary heir should have excluded. Exception.--A son's daughter (h.l.s.) will also inherit as a sharer where there is only one daughter or higher son's daughter provided that there is no son or equal or higher son's son. (3) Full-blood excludes the consanguine (but not uterine) half-blood. Exception.--If there is only one full sister and she succeeds as a sharer, the consanguine sister will not be excluded." "182. Will defined.--Will (wasiyat pl. wasaya) is the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. "183. Capacity for making a will.-- (1) Subject to the provisions of this Chapter, a Mohammedan who possesses a sound mind and is a major may dispose of his property by will. (2) A will made by a minor would become valid if it is ratified after majority." "188. Limits of testamentary powers.--A Mohammedan is not entitled to make a bequest to this heirs except as provided in Sec.189. (2) A mohammedan is not entitled to dispose of his property by will except to the extent provided in Sec. 190." "189. Bequest to heirs.--A bequest to an heir is not valid except to the extent to which the persons who are the heirs of the testator at the time of his death, expressly or impliedly consent to the bequest after his death." "190. Bequest to heirs.--A bequest to an heir is not valid except to the extent to which the persons who are the heirs of the testator at the time of his death, expressly or impliedly consent to the bequest after his death." "190. Extent of bequeathable property.--A Mohammedan is not entitled to dispose of his property (which would otherwise devolve on his heirs under Mohammedan Law) by will in favour of a person who is not a heir, in excess of one-third except in the following cases: (1) Where, subject to the provisions of any law for the time being in force, such excess is permitted by a valid custom; (2) where there are no heirs of the testator; (3) where the heirs existing at the time of the testator's death, consent to such bequest after his death; (4) where the only heir is the husband or the wife and the bequest of such excess does not effect his or her share." 14. A Muslim woman guided by Hanafi Law of inheritance is entitled to execute a Will bequeathing her properties according to her own desire. She cannot bequest to an heir subject to the provisions prescribed in Section 189 of the Islamic Law. As prescribed in Section 190 of the Islamic Law, she cannot bequest in excess of 1/3rd without consent of the heirs after her death as prescribed in Section 190 of the Act. 15. A Will in Muslim Law is a legal declaration of the intention of a Muslim in respect of his/her property; he/she desires to be made effective after his/her death. A Will (wasiwaat) confers right of property in the manner of gratuity after the death of the testator. The limitation to exercise the testamentary power under the Muslim Law is restricted up to 1/3rd of the total property so that the legal heirs are not deprived of their lawful right of their inheritance. Making a Will, in favour of the legal heir, who is entitled to inherit the property of the deceased is not valid, if it is not consented by other legal heirs. The consent of other legal heirs in respect of Will that was made by the deceased in favour of any legal heir may be either expressed or implied but silence cannot amount to consent. The consent if given during life time of the testator is not valid consent. The consent of other legal heirs in respect of Will that was made by the deceased in favour of any legal heir may be either expressed or implied but silence cannot amount to consent. The consent if given during life time of the testator is not valid consent. It must be given after the death of the testator. In the case at hand, the propounder Abdul Gani was not a legal heir of the deceased Parija Bibi. Admittedly, the objector is the son of testator's younger sister, deceased Banija Bibi. P.Ws. 2 and 3 are the two daughters of Banija Bibi and the objector Abdul Mamin was the only son of Banija Bibi. P.Ws. 2 and 3 made categorical statement that after the death of Parija Bibi they went to the funeral ceremony where they came to know about the execution of Will in favour of Abdul Gani, the adopted son of Parija Bibi and they accepted it and clearly stated that they had no claim to the property of Parija Bibi and they consented to the Will. The evidence of P.W. 3 further makes it clear that the objector Abdul Mamin also attended the funeral ceremony of Parija Bibi and the subject matter of the Will was disclosed in presence of the objector and they all approved the Will executed by Parija Bibi. The particular part of deposition of P.W. 3 is very relevant which is quoted as follows:- "Before her death, Parija Bibi told me that she will bequeath her properties to the petitioner Abdul Gani to which I also told her to bequeath her properties to the petitioner by Will and further told her that I did not have any objection to it After the death of Parija Bibi, at the time of her sradhwa ceremony myself and another brother and my sister and others attended the said Sradhwa ceremony on 40th day of her death. At that time my uncle Abdul Hamid (husband of Parija Bibi) told that Parija Bibi bequeathed all her properties by executing a Will in favour of Abdul Gani and at that time myself my elder sister Monowara Khatun and respondent Abdul Mamin were also present. At that time my uncle Abdul Hamid (husband of Parija Bibi) told that Parija Bibi bequeathed all her properties by executing a Will in favour of Abdul Gani and at that time myself my elder sister Monowara Khatun and respondent Abdul Mamin were also present. We all approved about the action of Parija Bibi about executing the said Will." It is, therefore, evident that all the legal heirs of Parija Bibi i.e. her husband Abdul Hamid, her sister's son and daughters approved the Will and the evidence of P.W. 3 to that effect, has not been challenged in any manner. 16. The duty of a Probate Court is limited to the extent of certifying the Will as to whether it was duly executed by the testator or not. A Probate Court is not required to see the critical aspects of inheritance. What learned Sr. Counsel, Mr. Chakraborty submitted in course of his argument, is not at all the subject matter to be looked into by the Probate Court. In the case of Ishwardeo Narain Singh vs. Kamta Devi & Ors. reported in AIR 1954 SC 280 , the Supreme Court in Para 2 of the judgment has observed that the Court of Probate is only concerned with the question as to whether the document put forward as the last Will and testament of the deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the probate Court............ 17. Same principle has been enunciated by the Supreme Court in the case of Mrs. Hem Nolini Judah (since deceased) and after her legal representative Mrs. Marlean Wilkinson vs. Isolyne Sarojabashini Bose & Ors. reported in AIR 1962 SC 1471 . 18. In the case of Gurdev Kaur & Ors. vs. Kaki & Ors. reported in (2007) 1 SCC 546 the Supreme Court in Para 76, 77 and 78 held thus:- "76. The High Court also observed that "no father in normal circumstances would like to disinherit the daughters". 77. The High Court has clearly deviated from the settled principle of interpretation of the will. The court does not sit in appeal over the right or wrong of the testator's decision. The High Court also observed that "no father in normal circumstances would like to disinherit the daughters". 77. The High Court has clearly deviated from the settled principle of interpretation of the will. The court does not sit in appeal over the right or wrong of the testator's decision. The court's role is limited to examining whether the instrument propounded as the last will of the deceased is or is not that by the testator and whether it is the product of the free and sound disposing mind. It is only for the purpose of examining the authenticity or otherwise of the instrument propounded as the last will, that the court looks into the nature of the bequest. 78. The learned Single Judge of the High Court has not even properly appreciated the context of the circumstances. The contents of the will have to be appreciated in the context of his circumstances, and not vis-a-vis the rules for intestate succession. It is only for this limited purpose that the court examines the nature of bequest. The court does not substitute its own opinion for what was the testator's will or intention as manifested from a reading of the written instrument. After all, a will is meant to be an expression of his desire and therefore, may result in disinheritance of some and grant to another. In the instant case, wife of the testator Bhagwan Kaur alone had lived with the deceased and only she had looked after him throughout his life. The other daughters were all happy married a long time ago and in their weddings the testator had spent huge amount of money. In his own words, he had spent more than what they would have got in their respective shares out of testator's property". 19. In the case of Krishna Kr. Birla vs. Rajendra Singh Lodha & Ors. reported in (2008) 4 SCC 300 , the Supreme Court has observed thus:- "Part IX of the Succession Act, 1925 has nothing to do with the law of inheritance or succession which is otherwise governed by statutory laws or custom, as the case may be. Part IX makes detailed provisions as to how and in what manner an application for grant of probate is to be filed, considered and granted or refused. Part IX makes detailed provisions as to how and in what manner an application for grant of probate is to be filed, considered and granted or refused. Rights and obligations of the parties as also the executors and administrators appointed by the court are laid down therein. Removal of the existing executors and administrators and appointment of subsequent executors are within the exclusive domain of the court. The jurisdiction of the Probate Court is limited being confined only to consider the genuineness of the will. A question of title arising under the Act cannot be gone into in probate proceedings. The Probate Court does not decide any question of title or of the existence of the property itself. Construction of a will relating to the right, title and interest of any other person is beyond the domain of the Probate Court. A separate suit would be maintainable relating to questions of title. Filing of a suit is contemplated inter alia in a case where a question relating to the succession of an estate arises. If probate is granted, persons raising questions as to title, etc. have a remedy in terms of Section 263 of the 1925 Act for revocation of probate also". 20. The decisions in the case of Allah Baksh (supra) referred by learned counsel, Mr. Chakraborty, relates to a Civil suit and the principle enunciated therein is therefore, not applicable in the facts of the present case. 21. Regarding the verification of the Probate petition, as pointed out by learned counsel, Mr. Chakraborty, I find that the original Probate petition was verified by the propounder i.e. the petitioner himself and a subsequent amendment petition was verified by one of the attesting witnesses, by filing an affidavit i.e. witness Joynal Abedin. The legal requirement, therefore, in my considered opinion, has been fulfilled. While the execution of the Will has been proved with all certainty, a technical aspect in presentation of the Probate petition may be ignored and the principle enunciated in the case of K. Rudrappa (supra) may fairly be applied. 22. It is fairly established by the petitioner (respondent herein) that the Will was executed by the testator Parija Bibi and that has been proved with material evidence and as per the legal requirements as prescribed by law. 22. It is fairly established by the petitioner (respondent herein) that the Will was executed by the testator Parija Bibi and that has been proved with material evidence and as per the legal requirements as prescribed by law. The critical aspects of inheritance is not a subject matter to be looked into by the Probate Court so far the law has now been settled, and the objection raised on behalf of the appellant, has no merit at all. 23. The appeal, therefore, stands dismissed and in the circumstances without cost. Send back the L.C. records along with a copy of this judgment.