Judgment :- Nishita Mhatre, J. 1. The appeal is directed against the judgment and order of the Special Court-cum-Additional District Judge, Burdwan in OS (Will) Suit No. 2 of 2002 / 10 of 2000. By this order the Trial Court has granted the probate of the Will executed by Kalimati Dasi to her grandson Amal Kumar Ghosh, the respondent herein. The appellants are the children of Kalimati Dasi. 2. Kalimati Dasi expired on 30th March, 1984. She had six sons and two daughters. One of her sons Nepal Ghosh predeceased her. The respondent applied for a probate of Kalimati Dasi’s alleged Will under which he had been appointed as the executor by the testatrix. The application for probate was contested by the appellants. They denied the fact that Kalimati Dasi had executed a Will. They contended that she was bed-ridden due to several ailments for more than two years prior to her demise. They further pleaded that she was not mentally or physically fit to execute the Will or indeed to instruct anybody to scribe the Will. The appellants claimed that the document which was the purported Will was forged and fabricated in order to grab the property which had devolved on all the children of Kalimati Dasi after her death. According to the appellants, the respondent, his father and their relatives connived to deprive them of property owned by Kalimati Dasi. The appellants specifically pleaded that a part of the estate of Kalimati Dasi had already been sold by a registered Sale Deed in 1985. One of Kalimati Dasi’s daughters Pratima Pal, i.e., the appellant No.5 got married after the death of her mother. Her brothers including the father of the respondent transferred some lands from the estate of Kalimati Dasi to her as a gift. A separate opposition to the probate application was also filed by the appellant No.5 wherein she reiterated the statements in the objection filed by the other appellants. She further stated that the contention of the respondent herein that Kalimati Dasi had expired leaving behind her four sons and two daughters was false as one of her sons Madhusudan Ghosh died after his mother. She contended that the execution of the Will was shrouded in suspicious circumstances and it was fabricated. 3. Evidence was led by the respondent in support of his case before the Trial Court. She contended that the execution of the Will was shrouded in suspicious circumstances and it was fabricated. 3. Evidence was led by the respondent in support of his case before the Trial Court. He examined the scribe of the Will - Murtuza Sk. And the bakalamdar - Saktipada Ghosh in support of his case. The respondent in his examination in chief has stated that his grandmother expired on 30th March, 1984 leaving behind six sons and two daughters, which statement is contrary to his pleadings in the application for probate. He has stated that Saktipada Ghosh, Nabakumar Mandal, Sisir Sahana and Subarna Banerjee were all witnesses to the Will and Saktipada Ghosh was also the bakalamdar i.e. the person who identified the left thumb impression of the testatrix. He claims that all the aforesaid persons signed the document on the request made by Kalimati Dasi. He has deposed that he became aware of the Will on 1st September, 1999 when he obtained it from a box belonging to Kalimati Dasi. This statement again is contrary to the pleadings in the application where the respondent has stated that he was given the Will by his grandmother for obtaining a probate after her death. The respondent has further asserted that except for his father Dinabandhu Ghosh, the other children of Kalimati Dasi did not have good relations with her. He denied that Kalimati Dasi was bed-ridden for two years prior to the execution of the Will. In his cross-examination he has admitted that though his father was alive, he was not impleaded as a defendant. He has admitted that he was eight years old when Kalimati Dasi expired and that his father Dinabandhu Ghosh used to look after the property when Kalimati Dasi was alive. He has then admitted that Madhusudan Ghosh, one of the sons of Kalimati Dasi, expired a year after her death, which again is contrary to his pleadings in the probate petition. He denied having any knowledge about the lands being transferred to third parties after the death of Kalimati Dasi. He has admitted that he was not present when the Will was scribed and executed. He has denied that a portion of the suit property was gifted to Pratima Pal, the daughter of Kalimati Dasi. He denied having any knowledge about the lands being transferred to third parties after the death of Kalimati Dasi. He has admitted that he was not present when the Will was scribed and executed. He has denied that a portion of the suit property was gifted to Pratima Pal, the daughter of Kalimati Dasi. The witness has admitted in his cross-examination that Kalimati Dasi was “not fit and well” at the time of execution of the Will. 4. Murtuza Sk. the scribe of the Will has stated that the left thumb impression (LTI) of Kalimati Dasi was made on the Will and Saktipada Ghosh was the bakalamdar. According to this witness, Kalimati Dasi endorsed her LTI in his presence on both pages of the Will and the witnesses signed the document in his presence. Contrary to what PW 1 has stated, PW 2 Murtuza Sk. has stated that Kalimati Dasi was in good health when she executed the Will. 5. Saktipada Ghosh, PW 3, the maternal uncle of PW 1, acted as the bakalamdar. According to him, the testatrix was physically and mentally fit when the Will was executed. According to this witness, when the Will was being scribed, PW 1 was present which is contrary to the version of PW 1. 6. The appellants led the evidence of Narayan Chandra Ghosh, a son of the testatrix and Pratima Pal, the daughter of the testatrix. Witness summons was also issued for the production of Sale Deed under which all the children of the testatrix had sold a part of the estate of Kalimati Dasi to third parties. 7. After assessing the evidence on record, the Trial Court concluded that the Will had been properly executed. The learned Judge held that the scribe and the bakalamdar had appended their signatures to the purported Will and therefore they could be considered as attesting witnesses. The learned Judge further observed that the purported Will had, in fact, been attested by some other persons who had not been examined as witnesses before the Court. However, he concluded that the Will had been properly executed within the meaning of Section 63 of the Indian Succession Act and that the execution of the same had been proved. As regards the mental condition of the testatrix at the time when the Will was made, the Court observed that she was in good health and mentally fit. However, he concluded that the Will had been properly executed within the meaning of Section 63 of the Indian Succession Act and that the execution of the same had been proved. As regards the mental condition of the testatrix at the time when the Will was made, the Court observed that she was in good health and mentally fit. The Court then observed that though the testatrix was suffering from a throat tumour which in fact was referred to in the Will, it could not be said that she was not mentally capable. The Court noted that though the testatrix in her purported Will had stated that Madhusudan Ghosh predeceased her, he had died after the testatrix in 1988/89. The trial Court did not find anything amiss and described this factual inaccuracy as minor. The Court, therefore, observed that since the Will had been proved and there was no doubt about its genuineness, the respondent was entitled to the probate. 8. After scanning the pleadings and the evidence on record, we are unable to agree with the view taken by the Trial Court for more than one reason. The respondent who claims to be the executor of the purported Will admitted that he was eight years old when his grandmother Kalimati Dasi expired and that the will was executed two years prior to that. He has pleaded in his plaint that she handed over a copy of her Will to him for obtaining a probate after her death. In his evidence, he has deposed that he became aware of the Will on 1st September, 1999 when he obtained it from the box of Kalimati Dasi. It is hardly believable that a six year old child would be handed over the Will for obtaining a probate. 9. The Will is purported to have been endorsed by the testatrix by affixing her LTI which has been identified by Saktipada Ghosh – the bakalamdar who is the maternal uncle of the respondent. Saktipada Ghosh has signed as an attesting witness and has also identified the thumb impression of the testatrix. Although he has been examined by the respondent, the other attesting witnesses have not been examined. Saktipada Ghosh is an interested witness, being the maternal uncle of the respondent. He has admitted that he was eager to secure financial solvency for his nephew, i.e., the respondent. Although he has been examined by the respondent, the other attesting witnesses have not been examined. Saktipada Ghosh is an interested witness, being the maternal uncle of the respondent. He has admitted that he was eager to secure financial solvency for his nephew, i.e., the respondent. He has also admitted that he and his nephew had discussed the matter before he deposed in Court. There is no material on record to indicate that Saktipada Ghosh was requested to identify the thumb impression of the testatrix. The Will does not say so, nor is there any evidence to substantiate the claim of Saktipada Ghosh that he was requested to act as the bakalamdar. A cursory glance at the Will indicates that the thumb impression of the testatrix has been appended at the foot of the second page in the right hand corner while the so called attesting witnesses have affixed the signatures on the document above the thumb impression. To the naked eye it is evident that the thumb impression has been taken twice over, one on top of the other on the second page. On the first page, the thumb impression is appended at the top of the page. Considering the aforesaid facts, the genuineness of the purported Will is not free from doubt. 10. The testatrix has purportedly mentioned in the Will that her sons Madhusudan and Nepal predeceased her. This is factually incorrect as Madhusudan Ghosh died in 1988/89, about 4 or 5 years after her death. It is difficult to accept that a mother, who is in sound mental health, would mention that a son who was alive when she executed the Will had died before her. She then has stated in the Will that she was appointing her daughter’s son Amal Kumar Ghosh as the executor of her Will. It is impossible that a grandmother who is mentally fit would describe her grandchild as her daughter’s son (dauhitro) when he was in fact her son’s son. Moreover this was the grandson who allegedly lived when she executed her will and whose father was allegedly the only son who looked after her. 11. There is sufficient evidence on record which establishes that the children of Kalimati Dasi had dealt with her estate after her death. Moreover this was the grandson who allegedly lived when she executed her will and whose father was allegedly the only son who looked after her. 11. There is sufficient evidence on record which establishes that the children of Kalimati Dasi had dealt with her estate after her death. Dinabandhu Ghosh, the father of the petitioner, had also jointly with the other children gifted a part of the property to Pratima Pal at the time of her marriage which was solemnised after their mother’s death. There is material on record to indicate that another part of property was sold to a third party for consideration and that the vendors were Jagabandhu Ghosh, Dinabandhu Ghosh, Narayan Chandra Ghosh, Gopal Chandra Ghosh who were all sons of Kalimati Dasi. This Sale Deed has been executed in 1986, two years after the death of Kalimati Dasi. All these factors show that there was no Will of Kalimati Dasi and that the document which is purported to be the Will and testament of Kalimati Dasi is a fabricated document. 12. In the case of Girja Datt Singh v. Gangotri Datt Singh reported in AIR 1955 SC 342 the Supreme Court has held that the propounder of the Will has to prove that the two witnesses who attested the Will saw the testator sign the Will and that they themselves had signed the Will in the presence of the testator. The Court has observed that it cannot be presumed from the mere signatures of the two persons appearing at the foot of the endorsement of registration of a Will that they had appended the signatures to the document as attesting witnesses. In the present case, neither the respondent nor Saktipada Ghosh in their evidence have stated that the attesting witnesses had seen Kalimati Dasi append her thumb impression on the document and that the attesting witnesses had signed the document in her presence. This requisite to prove the due execution of the Will has not been complied with in this case. 13. In the case of H. Venkatachala Iyengar v. B. N. Thimmajamma & Ors. This requisite to prove the due execution of the Will has not been complied with in this case. 13. In the case of H. Venkatachala Iyengar v. B. N. Thimmajamma & Ors. reported in AIR 1959 SC 443 the Supreme Court has observed that where the execution of the Will is shrouded by suspicious circumstances, including the mental capacity of the testator, as in the present case, the Court should expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator. The Court has observed that where a propounder of the Will has taken a prominent part in the execution of the Will and has received a substantial benefit under it, that in itself can generally be treated as a suspicious circumstance attending the execution of the Will. The propounder is required to remove the suspicion by supplying satisfactory evidence. In the present case, the fact that the testatrix was not of sound mind and body was admitted by the respondent in his cross-examination. He is the only beneficiary under the Will. Therefore, it was necessary for him to ensure that he left no stone unturned to prove that the bequest made to him was not shrouded in suspicion. This view has been reiterated by the Supreme Court in Guro (Smt) v. Atma Singh & Ors. reported in (1992) 2 SCC 507 . In the present case the following circumstances stare us in the face: (i) the thumb impression is not clear on the Will; (ii) the Will is sought to be probated after almost 16 years; (iii) the entire property has been bequeathed to the respondent; (iv) the two major mistakes made in the Will regarding the relationship of the testatrix with the propounder of the Will and the death of her son Madhusudan Ghosh. All these factors indicate that the document is not genuine. 14. In these circumstances, the appeal is allowed. The judgment and order of the Trial Court in O.S. (Will) Suit No. 02 of 2002 / 10 of 2000 is set aside. The concerned department is directed to send the LCR to the Trial Court. 15. Urgent certified photocopies of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all formalities.