Judgment : Subhro Kamal Mukherjee, J. This is an appeal against judgment and decree dated January 18, 1993, passed by the learned Additional District Judge, Ninth Court at Alipore, district: South 24 Parganas, in Original Suit No. 4 of 1991. The learned trial judge, by the impugned judgment and decree, dismissed the suit on contest against the contesting defendant no. 5, namely, Dhananjoy Saha, and dismissed ex parte against the defendant nos. 1, 3, 4, 6, 7 and 8 in presence of supporting defendant no. 2, namely, Narayan Chandra Saha. Initially, the application for grant of probate was filed before the learned District Delegate at Alipore, district: South 24 Parganas, which was registered as Act 39 Case No. 79 of 1990. As the proceeding became contentious, the application was refiled before the learned District Judge at Alipore, district: South 24 Parganas on July 27, 1990. The proceeding was registered, initially, as Original Suit No. 56 of 1990, but, on transfer, before the learned Additional District Judge, Ninth Court at Alipore, district: South 24 Parganas, the suit was re-numbered as Original Suit No. 4 of 1991. This is a proceeding for grant of probate in respect of the last will and testament dated April 17, 1989 executed by Sasadhar Saha, who died as a bachelor on October 14, 1989. By and under the said will and testament these appellants were appointed as the joint executors and the said Sasadhar Saha bequeathed all his movable and immovable properties absolutely in favour of these appellants. According to these propounders the said Sasadhar Saha used to live permanently at the Narkeldanga Railway Quarters being no. 116/A Railway Colony under Police Station Narkeldanga, Kolkata – 700 011 and he was looked after by all the members of the family of Narayan Chandra Saha. The propounders, further stated that, at the time of execution of his last will and testament, the said Sasadhar Saha was in sound mind, memory and judgment and his last will was duly witnessed and attested by the witnesses as required by law. The said defendant no. 2 in his written statement, filed on July 12, 1991, accepted the contentions of these propounders and, in fact, he deposed in the suit in support of the application for grant of probate. The only contesting defendant, therefore, was the defendant no. 5. The defendant no. 5 filed his written statement on June 10, 1991. The said defendant no. 2 in his written statement, filed on July 12, 1991, accepted the contentions of these propounders and, in fact, he deposed in the suit in support of the application for grant of probate. The only contesting defendant, therefore, was the defendant no. 5. The defendant no. 5 filed his written statement on June 10, 1991. The said defendant no. 5 contended that Sasadhar Saha had no fixed abode. After death of the husband of his sister, Bhagabati Garai, the said Sasadhar Saha used to reside in the house of his sister. The said Sasadhar Saha was residing at his sister’s residence between April 14, 1989 and April 17, 1989, but on April 18, 1989, the said Sasadhar Saha left the residence of his sister for Calcutta. In such circumstances, it was impossible for the said Sasadhar Saha to execute the will on April 17, 1989 as stated by these propounders. According to defendant/respondent no. 5 the said Sasadhar Saha did not live only with the family of Narayan Chandra Saha and was readily available to any of his brothers/sisters at short notice. Question arose, therefore, as to whether the said Sasadhar Saha executed his last will and testament on April 17, 1989 at No. 116/A, Narkeldanga Railway Quarters. Further, the defendant no. 5, alleged that the will in question was false and fabricated and such fabrication has been made only to grab the properties left by the said Sasadhar Saha. On behalf of these propounders 6(six) witnesses were examined. The defendant no. 5 examined himself and 4(four) witnesses in support of the defence case. The learned trial judge took up the issue as to whether the said Sasadhar Saha did execute the will and whether the said will was attested by the attesting witnesses. The plaintiffs’ witness no. 1 in the cross-examination stated that he had no knowledge of English and as such Sasadhar Saha read over and explained the contents of the will to him. He, further, stated that the said Sasadhar Saha read and explained the contents of the said will and put his signature. Thereafter, the attesting witnesses attested the signature of Sasadhar Saha, who executed the said will in their presence after reading the contents of the same, as aforesaid. He, further, stated that the said Sasadhar Saha read and explained the contents of the said will and put his signature. Thereafter, the attesting witnesses attested the signature of Sasadhar Saha, who executed the said will in their presence after reading the contents of the same, as aforesaid. The said witness in his cross-examination, also, stated that he knew Sasadharbabu 4-5 years prior to his execution of the will and about 3 months prior to his such execution of the will Sasadharbabu expressed his desire for execution of a will. He, further, stated that 3-4 days prior to the execution of the will, Sasadharbabu informed him that he would be executing his will and requested him to come to the Railway Colony, where he was staying, at about 8 P.M. He came to the said Railway Quarters on the date of execution of the will around 8 P.M. along with Matadinbabu, who was, also, known to Sasadharbabu for sometime past. After their coming, Sasadharbabu requested them to put their signatures as attesting witnesses of the will. Sasadharbabu himself read the will, before he executed the will, and as the will was in English, Sasadharbabu explained its contents to them. After execution of the will, he signed the will as an attesting witness. The learned judge disbelieved that Matadin accompanied the plantiffs’ witness no. 1for the purpose of being an attesting witness of the said will. It could be seen that the court misread evidence on record. As the plaintiffs’ witness no. 1 did not know English, he requested Sasadharbabu to read over and explain contents of the will, which was so done by Sasadharbabu. After the execution of will by Sasadharbabu the witnesses, including the plaintiffs’ witness no. 1, put their respective signatures as attesting witnesses. The plaintiffs’ witness no. 1 duly approved execution. The finding of the trial court is, certainly, contrary to evidence on record and such a finding is perverse. The learned judge did not rely upon evidence of the plaintiffs’ witness no. 1 on the basis of suspicion and surmise. The plaintiffs’ witness no. 2, Matadin Gupta, was, also, known to Sasadharbabu and he was intimated by Nanda Kishore Agarwala, the plaintiffs’ witness no. 1, to come on April 17, 1989 at Narkeldanga Rail Quarters, where Sasadharbabu was residing. He was a neighbour of Sasadharbabu and his residence was near Sealdah Station. 1 on the basis of suspicion and surmise. The plaintiffs’ witness no. 2, Matadin Gupta, was, also, known to Sasadharbabu and he was intimated by Nanda Kishore Agarwala, the plaintiffs’ witness no. 1, to come on April 17, 1989 at Narkeldanga Rail Quarters, where Sasadharbabu was residing. He was a neighbour of Sasadharbabu and his residence was near Sealdah Station. He got acquainted with Sasadharbabu at Nandalal Cloth Shop in Mullickbazar and once visited Sasadharbabu at his Narkeldanga Quarters. He, also, stated that there was due execution and attestation of the will and he, further stated that at the time of execution Sasadharbabu was physically fit and mentally alert. He stated that Sasadharbabu read out the contents of the will and explained its contents to him and Nanda Kishore Agarwala. Those witnesses of the propounders remain unshaken regarding their statements made by them before the Court. The learned trial judge, without considering the evidence of the said witnesses, rejected the statement of the said Matadin Gupta, the plaintiffs’ witness no. 2. Both the said witnesses, in our view, proved due execution of the will, its attestation and physical and mental conditions of the testator. The learned judge made caustic remark regarding selection of the plaintiffs’ witness nos. 1 and 2 as the attesting witnesses by the testator when such selection of third parties as the attesting witnesses and not from amongst family members by the testator was supported by reasons so as to make the fact of execution of will a complete secret thereby avoiding bad feelings and tensions amongst heirs on intestacy. It is important that the testator was a bachelor. A will is a secret and confidential document. If this aspect is taken into consideration, there is no illegality and it is not unnatural for an intelligent testator to prefer selection of outsiders as the attesting witnesses to make his execution of the will a tight secret. The learned trial judge disbelieved the evidence of the witness no. 4 of the plaintiffs, Ajoy Sanyal, an advocate by profession. He proved that he drafted the will as per the instructions of the testator. The trial judge doubted his version as he stated that he did not maintain any written document recording the verbal instructions of the testator. The learned trial judge disbelieved the evidence of the witness no. 4 of the plaintiffs, Ajoy Sanyal, an advocate by profession. He proved that he drafted the will as per the instructions of the testator. The trial judge doubted his version as he stated that he did not maintain any written document recording the verbal instructions of the testator. When the will was executed and attested, it was not imperative that the learned advocate should retain the written document recording the verbal instructions of his client. The learned judge, also, made remarks as to how the will could come in the hands of Shyamal Chandra Saha, the witness no. 5 of the plaintiffs. The said witness explained in his evidence that in February, 1990, after death of the testator, while examining the goods and papers left behind by the testator, the will came to his knowledge and possession. In cross examination nothing could be elicited to the contrary. Looking into the will, which was executed by the said Sasadhar Saha, the trial court found unusualness in the preparation of the will as it was typed with big gaps. On perusal of the will produced for grant of probate it appears that the will has been made in normal fashion keeping gaps as it required in respect of a will. So far as doctor’s signature is concerned, it will appear that his signature overlapped by rubber stamp impression and in such a situation, in order to avoid future complication, the doctor put his fresh signature with his rubber stamp and this does not give rise to any unnaturility. The learned trial judge wanted to rely upon the third case made out by the contesting defendant no. 5 in course of evidence. In the objection to the application for grant of probate, the said defendant made out of a case that on April 17, 1989 Sasadhar Saha was in his sister’s village house in Karui, Burdwan, and actually left his sister’s house on April 18, 1989 for his Narkeldanga residence. 5 in course of evidence. In the objection to the application for grant of probate, the said defendant made out of a case that on April 17, 1989 Sasadhar Saha was in his sister’s village house in Karui, Burdwan, and actually left his sister’s house on April 18, 1989 for his Narkeldanga residence. In evidence he wanted to establish that on April 17, 1989 Sasadhar Saha was on standby duty from 2 P.M. to 11 A.M. and as such it was not possible for him to execute his will on April 17, 1989 in Calcutta at about 8 P.M. The learned trial judge came to his finding that, in such circumstances, it was absurd that the will was executed on April 17, 1989 at or about 8 P.M. in the evening. Contesting defendant, also, wanted to refer to attendance sheet produced on call from the office of South Eastern Railway where Sasadhar Saha was employed as EMU Coach Driver. The sheet so produced purportedly shows that one S.D. Saha was on standby duty on April 17, 1989 from 2 P.M. to 11 A.M. and nobody actually threw light about identity of the said S.D. Saha. The word ‘Sasadhar’ is a single one and cannot be expressed by alphabets ‘S’ and ’D’ with stop in between and filling up a surname thereafter. Therefore, it cannot be linked conclusively with Sasadhar Saha, who executed his will at Narkeldanga residence at about 8 P.M. on April 17, 1989. No grant of probate can be made unless a will has been proved in accordance with law inasmuch as a grant of probate operates as a judgment in rem. Thus, the Court must be satisfied that the will has been duly executed and attested. The propounder of a will should prove, to the satisfaction of the Court, beyond all possible doubts, that the will was executed by the testator in accordance with law and that the testator, at the time of execution of the will, was in a fit state of mind and body to execute a will. Further, it should be proved that the testator fully appreciated what he was doing as to the disposition of his properties. But, it is idle to expect proof with mathematical certainty. The court would put itself in to the testator’s arm chair. Further, it should be proved that the testator fully appreciated what he was doing as to the disposition of his properties. But, it is idle to expect proof with mathematical certainty. The court would put itself in to the testator’s arm chair. The test to be applied would be usual test of satisfaction of the prudent mind in such matters. A propounder would be called upon to show by satisfactory evidence that the will was executed 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 disposition and that he put his signature to the document out of his own free will. After considering evidences and materials on record, it can definitely be concluded that all formalities as are required under the law have been observed in execution and attestation. The will was duly proved. Here onus of proof has been duly discharged by the propounders for grant of probate and there exists no suspicious circumstances surrounding execution of the will. Proof of mental and physical capacity and the signatures of the signatories as required by law is sufficient. It will appear from evidences and materials on record that the propounders by examining their witnesses has explained surrounding circumstances in order to remove any doubt likely to linger in the mind of the court not only of the attestation, but, also, of the fact that the said Sasadhar Saha executed his said last will and testament, on April 17, 1989. In such circumstances, judgment of the trial court cannot be sustained. Therefore, the judgment and decree of the trial court are set aside. The application for grant of probate is allowed. The learned trial judge is directed to issue probate with the will annexed to the propounders forthwith. The appeal is, thus, allowed. We, however, make no order as to costs. Mrinal Kanti Sinha, J. I agree.