JUDGMENT : DEBANGSU BASAK, J. 1. The plaintiff has applied for grant of probate of a document claimed to be the last Will and testament of Rama Sengupta, since deceased. 2. The testatrix had died on August 14, 2006. By her Will the testatrix has appointed the plaintiff as the executor. 3. The plaintiff does not come within the heirs succeeding to the estate of the testatrix on intestacy succession. The brother of the testatrix being the defendant herein succeeds on intestacy succession and is opposing the grant of the probate. The probate application was directed to be treated as a contentious clause. A testamentary suit number has been allotted pursuant to such direction. 4. Three issues have been framed for trial in the suit on May 13, 2013. The issues settled by such order are as follows:- 1. Is the Will dated 6th October, 2005 executed by Rama Sengupta since deceased? 2. Does the execution of the Will dated 6th October, 2005 is surrounded by suspicious circumstances as alleged in paragraphs 3 and 9 of the written statement? 3. Is the executor entitled to grant of probate of the Will and Testament dated 6th October, 2005? 5. The parties have adduced evidence through their respective witnesses. The plaintiff has examined three witnesses apart from himself. The defendant has examined one witness, that is, himself. 6. Learned Advocate for the plaintiff has submitted that, the Will being Exhibit ‘A’ was duly registered with the Registrar of Assurances at Kolkata. According to him, the execution and the registration of the Will are admitted by the defendant. In support of such contention, he has referred to the answers given by the defendant to question nos. 231 and 232 in cross-examination. He has submitted that, the Will was executed on October 6, 2005. The deceased had died on August 14, 2006. The execution of the Will has been duly proved by the two attesting witnesses along with scribe of the Will. The two attesting witnesses were produced in evidence by the plaintiff. The scribe of the Will being an Advocate was also produced in evidence. The plaintiff as the executor has examined himself as a witness on behalf of the plaintiff. 7. The two attesting witnesses were produced in evidence by the plaintiff. The scribe of the Will being an Advocate was also produced in evidence. The plaintiff as the executor has examined himself as a witness on behalf of the plaintiff. 7. Learned Advocate for the plaintiff has submitted that, the objection of the defendant that the Will was executed under suspicious circumstances and that the deceased did not have the requisite testamentary capacity to execute the Will are without any basis. In support of the mental capacity of the testatrix, learned Advocate for the plaintiff has relied upon Exhibit ‘G’ being the diary of the testatrix. He has pointed out to the date being October 6, 2005 on which date the Will was duly executed and the entry in respect thereof in Exhibit ‘G’. Referring thereto he has submitted that, the testatrix had written about the execution of the Will by her own handwriting. He has referred to the series of letters exchanged between the testatrix and the defendant particularly Exhibit ‘6’ where the testatrix had expressed her displeasure at the conduct of defendant. He has submitted that, the defendant had created trouble for the testatrix during her lifetime. The relationship between the two was soured. He has referred to Exhibits ‘I’, ‘J’, ‘K’ and ‘L’ being the other letters exchanged between the parties. He has also referred to Exhibit ‘H’ being a deed of conveyance dated July 11, 2005 executed by the defendant in favour of the plaintiff in respect of an immovable property. He has submitted that, the Will was executed on October 6, 2005 prior to Exhibit ‘H’. Therefore, the testatrix did have the requisite testamentary capacity on October 6, 2005 when she was executing her Will. So far as suspicious circumstances are concerned, he has submitted that, the execution of the Will is not shrouded by any suspicious circumstances. The Will of testatrix has been registered with the Registrar of Assurances at Kolkata. She was of sound mind. She was living alone. Therefore, there is no ground for any suspicion with regard to the execution of the Will. 8. In support of his contentions, learned Advocate for the plaintiff has relied upon 2015 3 Indian Civil Cases 360 (Cal.) (Lokdeep Roy v. Nihar Kumar Roy) and 2014 4 Indian Civil Cases 637 (Cal.) (Smt. Sabitri Pal v. Sri Ramendra Kumar Das alias Ramen Das). 9. 8. In support of his contentions, learned Advocate for the plaintiff has relied upon 2015 3 Indian Civil Cases 360 (Cal.) (Lokdeep Roy v. Nihar Kumar Roy) and 2014 4 Indian Civil Cases 637 (Cal.) (Smt. Sabitri Pal v. Sri Ramendra Kumar Das alias Ramen Das). 9. Learned Advocate for the defendant has submitted that, the testatrix was suffering from Cancer. She was completely of unsound mind and not capable of understanding the meaning of the Will at the time of the execution. The prolonged illness of the testatrix and the medicine associated with the treatment of the illness rendered the mind of the testatrix unsound. Her mind was in a debilitated state. She was incapable of comprehending the effects of her acts including the execution of the Will. The prolonged illness of the testatrix caused had to become of unsound mind. Therefore, the testatrix had lacked testamentary capacity at the time of the execution of the Will. Moreover, there are suspicious circumstances calling for investigation as to the execution and attestation of the Will. Consequently, the Will being Exhibit ‘A’ is void and is incapable of being granted a probate. 10. On the point of suspicious circumstances, learned Advocate for the defendant has relied upon All India Reporter 1959 Supreme Court 443 (H. Venkatachala Iyengar v. B.N. Thimmajamma & Ors.), 2009 3 Supreme Court Cases 687 (Bharpur Singh & Ors. v. Shamsher Singh), 2010 5 Supreme Court Cases 274 (S.R. Srinivasa & Ors. v. S. Padmavathamma), 2010 5 Supreme Court Cases 770 (Balathandayutham & Anr. v. Ezhilarasan) and 2012 4 Supreme Court Cases 387 (Mahesh Kumar v. Vinod Kumar & Ors.) in this regard. 11. Elaborating on the point of suspicious circumstances, learned Advocate for the defendant has referred to the relationship of the plaintiff with the testatrix as well as the relationship between the defendant and the testatrix. He has referred to a genealogical table of the family of Jatindra Nath Sengupta, since deceased. He has submitted that, the defendant is the brother of the testatrix. There are no other heirs succeeding the estate of the testatrix on natural succession apart from the defendant. The plaintiff is the son of the predeceased sister of the testatrix. The defendant used to look after the testatrix during her lifetime. The testatrix was suffering from Cancer. He has submitted that, the defendant is the brother of the testatrix. There are no other heirs succeeding the estate of the testatrix on natural succession apart from the defendant. The plaintiff is the son of the predeceased sister of the testatrix. The defendant used to look after the testatrix during her lifetime. The testatrix was suffering from Cancer. The nature of Cancer suffered by the testatrix required frequent hospitalization of the testatrix for treatment. After a given point of time, in the process of the treatment, the testatrix had developed an aversion towards visiting the hospital or taking admission in a hospital for the purpose of treatment. The Doctors were, however, advising the testatrix to take the treatment at a hospital. The nature of treatment required hospitalization. The defendant used to insist on hospitalization of the testatrix for the purpose of her treatment. The defendant had no option than to follow the advice of the doctors in this regard. This insistence on the part of the defendant was somehow not taken well by the testatrix. She had started to develop ill feelings towards the defendant due to such insistence. However, the actions of the defendants were towards the betterment of the testatrix. At this stage, the plaintiff had appeared and had impressed the testatrix by stating that, the treatment can be done at home. At a given point of time the health situation of the testatrix required her hospitalization. She was then staying with the defendant. The defendant had got the testatrix admitted at the hospital. However, without the knowledge and consent of the defendant, the plaintiff had taken the testatrix from out of the hospital. She was initially staying with the plaintiff after her discharge from the hospital. Subsequently, she had moved to her own residence. During this point of time, the plaintiff had ensured that, the defendant does not have any access to the testatrix. The attempts by the defendant to get in contact with the testatrix were thwarted by the plaintiff. During this point of time, when the testatrix was at the residence of the plaintiff, the defendant was not allowed entry into the house. Subsequently, when the testatrix went to live by herself at her own residence, the plaintiff had kept a maidservant under his control to look after the testatrix. During this point of time, when the testatrix was at the residence of the plaintiff, the defendant was not allowed entry into the house. Subsequently, when the testatrix went to live by herself at her own residence, the plaintiff had kept a maidservant under his control to look after the testatrix. Such maidservant did not allow the defendant to visit or to talk to the testatrix. He has submitted that, initially the letters written by the defendant to the testatrix were not delivered to the testatrix. Ultimately the defendant had sent letters by Registered Posts to the testatrix. 12. Learned Advocate for the defendant has referred to various questions and answers given by the plaintiff in cross-examination as also the evidence of the defendant in this regard. He has submitted that, the defendant was not aware of the medical condition or of the treatment to be had by the testatrix during her lifetime. He has submitted that, the defendant was not involved in the treatment of the testatrix. Learned Advocate for the defendant has referred to the character of the plaintiff and has submitted that, the plaintiff was a person who grabs properties from others. He has also submitted that, the testatrix and the defendant had good relations. There was no question of the testatrix making a Will in favour of the plaintiff by depriving the defendant. The plaintiff was instrumental in bringing about the purported Will by prevailing upon the testatrix. The Will, therefore, is influenced by the plaintiff. 13. Learned Advocate for the defendant has further submitted that, the plaintiff had arranged for the vehicle for the defendant to travel from her place of residence to the Registrar’s Office at Kolkata. The distance is about 40 kilometers. The testatrix was not in a position to arrange for the vehicle on her own. He has highlighted the fact that, on the date of the execution of the Will the testatrix was staying with Sreejata Sen, the sister of the plaintiff. The execution of the Will was managed by the plaintiff. He has referred to the attesting witnesses. He has submitted that, one of the attesting witnesses is a relative of the testatrix. The other attesting witness is a childhood friend of the plaintiff. The scribe of Exhibit ‘A’ was arranged by the plaintiff. Therefore, the entire Will was the handiwork of the plaintiff. He has referred to the attesting witnesses. He has submitted that, one of the attesting witnesses is a relative of the testatrix. The other attesting witness is a childhood friend of the plaintiff. The scribe of Exhibit ‘A’ was arranged by the plaintiff. Therefore, the entire Will was the handiwork of the plaintiff. The plaintiff had masterminded the Will and its so-called execution and registration. These factors and circumstances, according to the learned Advocate for the defendant, establish that, the plaintiff had an all pervasive control over the defendant. The plaintiff, therefore, was in a position to manipulate the mind of the testatrix. The plaintiff had poisoned the mind of the testatrix against the defendant. 14. Leaned Advocate for the defendant has referred to the various entries of Exhibit ‘G’ where the testatrix has stated that, she was unwell. On the basis of such entries in Exhibit ‘G’ it has been submitted that, since the testatrix was unwell it is natural that, her mental health was not sufficient to permit her to make the Will. Learned Advocate for the defendant has also referred to the conduct of the plaintiff with regard to the other assets of the family. He had referred to the fact that, the plaintiff had opened a joint account with the testatrix in 2005 and had taken away all the money belonging to the testatrix as also the other money coming to the possession of the testatrix from the other heirs of the father of the testatrix. He has submitted that, the plaintiff had opened a joint account with the testatrix at the Ballygunge Branch of ICICI Bank when the testatrix was living at Howrah. That was done only to drain out the money of the testatrix. Therefore, according to him, since the plaintiff is the beneficiary and was associated with the execution of the Will, it is for the plaintiff to dispel the suspicions. The plaintiff as the executor and the beneficiary under the Will has applied for probate. The plaintiff has failed to dispel the suspicions. Therefore, the probate should not be granted. 15. Learned Advocate for the defendant has referred to the Will. He has contended that, the testatrix has not assigned any reason as to why she has excluded the defendant who is her brother and with whom he had cordial relations. The plaintiff has failed to dispel the suspicions. Therefore, the probate should not be granted. 15. Learned Advocate for the defendant has referred to the Will. He has contended that, the testatrix has not assigned any reason as to why she has excluded the defendant who is her brother and with whom he had cordial relations. She had included various properties in the Will which are not her self-acquired properties. Such properties do not belong to the testatrix. She was aware of such fact. The choice of the attesting witnesses also raises suspicion as to the Will. The plaintiff had taken advantage of the unsound mind of the testatrix and had taken control of her mind and had managed the testatrix by exercising undue influence and coercion to execute the Will. In such circumstances, probate ought not to be granted. 16. All three issues are taken up together for consideration for the sake of convenience and as they are interconnected. 17. Exhibit ‘A’ is the Will. The attesting witness being the plaintiff witness no.1 has proved the signatures of the persons appearing on Exhibit ‘A’. He has stated that, the testatrix had signed Exhibit ‘A’ in presence of the two attesting witnesses. The other attesting witness along with the scribe of the document being an Advocate has corroborated the evidence of the attesting witness. Exhibit ‘A’ is a registered document. The defendant has also admitted the execution and registration of Exhibit ‘A’ in answers given to question nos. 231 and 232 in cross-examination. The Will is a registered document, although the mere registration of a Will by itself does not establish its genuinity. On the basis of the evidenced on record it has to be held that, the due execution of the Will being Exhibit ‘A’ has been established. 18. Smt. Sabitri Pal (supra) has dealt with a situation where the Will was duly proved. 19. Lokdeep Roy (supra) has held that, Section 63 of the Succession Act does not provide that the attesting witness must certify in the deed itself that the Will was executed by the testator in their presence. The attesting witnesses also need not be described as such in the deed itself. Non-description of the witness as the attesting witness in the deed is not fatal to the grant and that probate should not be refused on such ground. 20. The attesting witnesses also need not be described as such in the deed itself. Non-description of the witness as the attesting witness in the deed is not fatal to the grant and that probate should not be refused on such ground. 20. In H. Venkatachala Iyengar (supra) the Supreme Court has held that, the party propounding a Will is required to prove the same. In dealing with the proof of Wills the Court is required to embark on the same enquiry as in the case of proof of documents. The propounder would be called upon to show 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 out 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, Court would be justified in making a finding in favour of the propounder. The Supreme Court has also noted that, there may be cases where the execution of the Will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful. The condition of the testator’s mind may appear to be very feeble and debilitated. 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 dispositions may not be the result of the testator’s free Will and mind. In such cases all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. Where the propounder himself takes a prominent part in the execution of the Will, which confers on him substantial benefit, then that, by itself, is generally treated as a suspicious circumstance attending the execution of the Will, and the propounder is required to remove such suspicion by clear and satisfactory evidence. 21. In Bharpur Singh & Ors. (supra) it has been held that, where a Will is surrounded by suspicious circumstances, it should not be treated as the last testamentary disposition of the testator. In such cases it becomes a matter of the Court’s conscience. 21. In Bharpur Singh & Ors. (supra) it has been held that, where a Will is surrounded by suspicious circumstances, it should not be treated as the last testamentary disposition of the testator. In such cases it becomes a matter of the Court’s conscience. The propounder of the Will has to remove all suspicious circumstances to satisfy that the Will was duly executed by the testator. Cogent and convincing explanation of the suspicious circumstances surrounding the making of the Will must be offered. Similar views have been expressed in S.R. Srinivasa & Ors. (supra), Balathandayutham & Anr. (supra) and Mahesh Kumar (supra). 22. The plaintiff is a beneficiary of the Will. The Will notes that, the defendant has sufficient income of his own. The testatrix has given her reasons in Exhibit ‘A’ as to why she is not bequeathing any property in favour of the defendant. 23. The mental capacity of the testatrix and the allegations of suspicions circumstances require consideration. The testatrix was suffering from Cancer for a considerable period of time. She was being treated. It is the case of the defendant that, the nature of treatment required frequent hospitalization of the testatrix and that she had developed an adverse disposition towards hospitalization. The defendant was looking after the testatrix for a considerable period of time. Since the Doctors had advised and required hospitalization of the testatrix, the defendant was forced to insist on the testatrix to accept hospitalization. This instance was for the benefit of the testatrix. This insistence on the part of the defendant had generated ill feelings of the testatrix towards the defendant, which according to the defendant, was subsequently manipulated by the plaintiff. The plaintiff had taken the testatrix from the Hospital on March 15, 2005 without informing the defendant. Since then, the defendant was denied any access to the testatrix by the plaintiff. The plaintiff on the other hand has stated in evidence that, the defendant had told the plaintiff it was no longer possible for the defendant to look after the testatrix subsequent to the hospitalization of the testatrix in March 2005. In fact, the defendant had transferred all the belongings of the testatrix to the vehicle of the plaintiff. The defendant and his wife did not behave in a befitting manner with the testatrix. In fact, the defendant had transferred all the belongings of the testatrix to the vehicle of the plaintiff. The defendant and his wife did not behave in a befitting manner with the testatrix. The plaintiff has relied upon the letters exchanged between the testatrix and the defendant as well as incidences between the testatrix and the wife of the defendant in this regard. 24. The testatrix had died on August 14, 2006. She had executed the Will on October 6, 2005. She had purchased the share of the defendant in respect of an immovable property by a registered deed of conveyance dated July 11, 2005. She was maintaining a diary for the year 2005. She had corresponded with the defendant during 2005. On the date of the execution of the Will being Exhibit ‘A’, that is, October 6, 2005 the testatrix had made an entry in her diary. The entry on October 6, 2005, in the diary of the testatrix being Exhibit ‘G’, speaks that, the testatrix had made a Will. There are various entries in the diary been Exhibit ‘G’. The testatrix was noting the developments in her life in the diary. The entries in the diary being Exhibit ‘G’ are in her own hand writing. She was also noting her physical discomfiture with the progress of the disease. The entries in the diary highlighted by the defendant in his evidence, do not establish that, the testatrix was in a debilitated mental state and was incapable of understanding the actions taken by her. She had purchased the share of the defendant in the immovable property on July 11, 2005 by a registered deed of conveyance being Exhibit ‘H’. Exhibit ‘H’ is a conveyance executed subsequent to the registered Will being Exhibit ‘A’. No evidence has been brought on record to suggest that, the defendant had after entering into the conveyance with the testatrix through Exhibit ‘H’, filed any proceeding claiming that, Exhibit ‘H’ is null and void due to the lack of mental capacity of the testatrix to understand the purport of the Exhibit ‘H’. The letters exchanged between the testatrix and the defendant establish that, they were not having a cordial relationship at least during the time of the exchange of the letters. The defendant was asking for accounts from the testatrix. The testatrix was replying to such demands, claiming that, the demands were unfounded. The letters exchanged between the testatrix and the defendant establish that, they were not having a cordial relationship at least during the time of the exchange of the letters. The defendant was asking for accounts from the testatrix. The testatrix was replying to such demands, claiming that, the demands were unfounded. They were exchanging threats of taking the matter to the Court. The testatrix was residing on her own, at own residence, for a considerable period subsequent to the execution of the Will. The evidence on record does not permit one to infer that, the testatrix was under the absolute control of the plaintiff, without the testatrix been able to take independent decisions or contact any other person from the world. The evidence suggests that, the testatrix had a telephone available to her. She was in a position to write letters. She had gone out from the house at least once to execute the deed of conveyance on July 11, 2005 after the execution of the Will on October 6, 2005. She had met the defendant at least twice after October 6, 2005. She was consulting doctors for her treatment. She was in contact with the outside world. She was in contact with persons beyond the plaintiff and the team of the plaintiff as identified by the defendant in his evidence. The diary entries establish that, the testatrix was a person of independent thinking and was keeping a robust mental health. The entries in the diary been Exhibit ‘G’ permits one to infer that, the testatrix was a person who preferred to live on her own terms. Viewed in such perspective, the actions taken by the testatrix are fully explained. She has also given her reasons for not leaving behind anything for the defendant in the Will being Exhibit ‘A’. A probate Court, although a Court of conscience, is not called upon to adjudge upon the ethics or morality of the person making the Will. The claim that the defendant was prevented from meeting the testatrix is without any substance. The testatrix had the requisite testamentary capacity to execute her will being Exhibit ‘A’. She was not prevailed upon to execute Exhibit ‘A’. In view of the discussion above, the allegation of suspicious circumstances attending to the execution of the Will also does not have any substance. The testatrix had the requisite testamentary capacity to execute her will being Exhibit ‘A’. She was not prevailed upon to execute Exhibit ‘A’. In view of the discussion above, the allegation of suspicious circumstances attending to the execution of the Will also does not have any substance. The fact that the testatrix had travelled from the residence of Sreejata Sen to present a Will and have the same registered at the Registrar of Assurances, Kolkata does not visit the execution of the will with a suspicious circumstance. The fact that, the testatrix was in the position to travel from Serampore to the office of the Registrar of Assurances at Kolkata establishes that, she was physically fit to travel. Finding and hiring a car for such travel by a lady living on her own over a period of time is not an insurmountable problem for such lady. She was working as a teacher before her retirement. Such a person hiring a car to travel to Kolkata does not permit inference of attending suspicious circumstances to the execution of the Will. True the role of the two attesting witnesses and the two Advocates named in the deposition of the witnesses are not as limited as they claim themselves to be, but that favour of the defendant. 25. Exhibit ‘A’ speaks of a reason as to why the defendant is excluded from any bequest. Exhibit ‘A’ has been duly attested by two witnesses. Both the attesting witness had deposed in the proceedings. I find nothing suspicious about the two attesting witnesses as suggested by the defendant. Both the attesting witnesses are known to her. It is her choice as to whom she requests to attest the Will. The evidence does not lead that she was of unsound mind. The evidence also does not establish that the testatrix was under the control of the plaintiff so as to allow the plaintiff to manipulate her. The testatrix was leaving separately for a considerable period of time. She had accessed the outside world from her home. She had written the diary in her own hand. It has not been established that she was manipulated or prevented from interacting with the outside world. In view of the discussions above, the contentions raised on behalf of the defendant are not acceptable. 26. The first issue is, therefore, answered in the affirmative and in favour of the plaintiff. She had written the diary in her own hand. It has not been established that she was manipulated or prevented from interacting with the outside world. In view of the discussions above, the contentions raised on behalf of the defendant are not acceptable. 26. The first issue is, therefore, answered in the affirmative and in favour of the plaintiff. The second issue is answered in the negative and against the defendant. The third issue is answered in the affirmative and in favour of the plaintiff. 27. There will be an order in terms of prayer (d) of the probate petition. The plaintiff will deposit balance of the maximum ad valorem court-fees if not already deposited. On such deposit the department will take appropriate steps for the purpose of implementing prayer (d). 28. T.S. No. 2 of 2009 is decreed accordingly. The parties will bear their respective costs. 29. The Department is directed to draw up and complete the decree as expeditiously as possible.