Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 1048 (GAU)

AJIT KUMAR KHANDELWAL v. AMAR NATH KHANDELWAL

2018-07-18

KALYAN RAI SURANA

body2018
JUDGMENT AND ORDER : 1. Heard Mr. R.K. Jain, the learned advocate for the appellant as well as Mr. S.P. Choudhury, the learned advocate for the respondent No.1. None appears on call for the proforma respondents No.2 to 16. 2. By this appeal under Section 299 of the Succession Act, 1925, the appellant has assailed the judgment dated 07.04.2005, passed by the learned Additional District Judge, Cachar, Silchar, in Test. Suit No. 31 of 2001, thereby dismissing the petition filed by the appellant-plaintiff (hereinafter referred to as the “propounder”) for grant of probate in respect of the ‘will’ of Late Hira Devi Khandelwal (hereinafter referred to as the “testatrix”), who had executed her will on 09.12.1994. The testatrix had died on 04.05.1999 at Silchar. 3. At the outset, it must be mentioned that as per endorsement dated 12.01.2000, made in the LCR, the original will is lying in safe custody of the learned trial Court, which had inadvertently not been sent to this Court along with LCR. Hence, the learned advocates for the contesting parties have consented that the matter can be heard on the basis of copy of will annexed to the Memo of Appeal. 4. At the time of death, the testatrix had been pre-deceased by 2 (two) daughters. She left behind 4 (four) sons and several grand-children, as named in para-4 of the probate petition. As per the will, the testatrix had left behind 4 bank accounts, 1 PPF A/c., various NSC Certificates, UTI Certificates, LIC Mutual Fund, receivable claim in MS 1/1995 and jewelry, the value of which was declared as Rs.29,52,506/-. As per the copy of will annexed to the present Memo of Appeal, the propounder was made the executor and the above referred movables were directed to be distributed amongst the three daughter-in-law and several grand-children. The respondent No.1, and his family consisting of him, his wife and children were excluded from inheritance of the effects mentioned in the will by stating in the will that he had broken all relation with her. 5. The probate petition filed by the propounder was registered as Misc. (Probate) Case No. 10/2000. The respondent No.1 had contested the said petition, as such, the said petition was converted to Test Suit No. 31/2001. 5. The probate petition filed by the propounder was registered as Misc. (Probate) Case No. 10/2000. The respondent No.1 had contested the said petition, as such, the said petition was converted to Test Suit No. 31/2001. In his objection, the respondent No.1 had disputed the genuineness of the will on the ground that he had not broken his relationship with the testatrix, his mother and she had the guardian at the time of the marriage of his son on 26.01.1996 and invitation letters were printed in the name of the testatrix and even after the death of the testatrix, the invitation letters were printed by the propounder in the name of all brothers. It was claimed that the properties, specially the jewelry had been not been correctly described in the will. It was claimed that the testatrix did not know English language as she was educated till class VII or VIII, but not from English medium school. It was also stated that the propounder was handling accounts and Income tax, and was also maintaining bank accounts and investments of the testatrix and she was residing with the propounder and the will was drawn at the instance of the propounder, while the testatrix was totally under his control and that the propounder was the maximum beneficiary of the will. It was stated that the testatrix had no reason to deprive the family of the respondent No.1, his wife and children (i.e. daughter-in-law and grand-children). It was stated that the will was not voluntarily executed by the testatrix and that the propounder had fabricated the will in order to grab the properties of the testatrix. It was claimed that the execution of the alleged will did not conform to the requirement of law and that the signature of the testatrix was taken without explaining contents of the will and that the signature of the witnesses were taken subsequently. 6. On the basis of the pleadings, the learned trial Court had framed the following issues:- 1. Whether the petition for probate is maintainable? 2. Whether the executrix executed the will in favour of her eldest son out of love? 3. Whether all the properties, movable were included in the testament and schedule of the petition? 4. Whether any amount of money was withdrawn earlier for filing the probate petition? 5. Whether the petition for probate is maintainable? 2. Whether the executrix executed the will in favour of her eldest son out of love? 3. Whether all the properties, movable were included in the testament and schedule of the petition? 4. Whether any amount of money was withdrawn earlier for filing the probate petition? 5. Whether the will is a valid one and probate can be granted as applied for? 6. To what relief/reliefs, the O.P. No. 1 is entitled to? 7. The appellant had examined 3 (three) witnesses including himself (PW-1), Sanjay Kumar Khandelwal (PW-2) and Sumanta Sarathi Endow (PW-3), and had exhibited two documents, viz., Will (Ext.1) and Death Certificate (Ext.2). However, the respondent no.1 did not examine any defence witnesses. 8. In respect of issue No.1, the learned trial Court had held that the suit was maintainable and, as such, the issue was decided in the affirmative and in favour of the appellant. The issue No.2, was decided in the negative and in favour of the appellant. In respect of issue No.3, it was held that all the properties of the testatrix was included in Schedule of the petition and the testament and, as such, the issue was decided in the affirmative and in favour of the appellant. In respect of issue No.4, it was held that there was no evidence to show that any money was withdrawn earlier for filing probate petition and, as such, the issue was decided in the negative and in favour of the appellant. 9. In respect of issue No.5, the learned trial Court had heavily relied on the statements of the three witnesses made during cross examination. The PW-1 had stated that he had not seen the will during the lifetime of the testatrix and he had no knowledge of the contents of the will and as stated by the testatrix, the will was prepared by an advocate of this Court. The PW-1 had stated that he had not seen the will during the lifetime of the testatrix and he had no knowledge of the contents of the will and as stated by the testatrix, the will was prepared by an advocate of this Court. Sanjay Kumar Khandelwal (PW-2), who was one of the attesting witnesses had stated that the will was typed by Late Phani Bhushan Das Gupta and the propounder, who was his maternal uncle had called him from his residence and the propounder took the Deputy Sub-Registrar to their residence at evening hours for registration of the will and when he had gone there the testatrix was sitting in the verandah and the PW-3 appeared there and then a typed will was prepared before the Deputy Sub-Registrar, who put his official stamp on the will and asked him to put his signature and Hira Devi Khandelwal had also put her signature there. Sumanta sarathi Endow (PW-3), who was the attesting witness of the will had stated in his cross-examination that at the request of the propounder, he had gone to his residence at about 11/11.30 am and at that time Sanjay Kumar Khandelwal (PW-2) and Phani Bhushan Das Gupta (typist) were there and as per instructions of the propounder, he had put his signature on the will after perusing the same. Thus, based on the said evidence, the learned trial Court held that while as per PW-2, the will was executed in evening hours, but as per PW-3, the will was executed in 11/11.30 am., and that there was no endorsement in the will that it was prepared by an advocate at Guwahati, while as per PW-2 and PW-3, the will was typed by Late Phani Bhushan Das Gupta (typist) and that there was nothing in the evidence of PW-1 as to who had prepared the will. The learned trial Court had also held that as per the cross examination of PW-1, the testatrix was living with him and he had maintained the accounts of the testatrix and had maintained her Income tax statement. Moreover, it was held that as per PW-1, he had never seen the will during the lifetime of the testatrix and as per PW-2, he had gone at the request of PW-1 and as per PW-3, he had put his signature at the request of PW-1. Moreover, it was held that as per PW-1, he had never seen the will during the lifetime of the testatrix and as per PW-2, he had gone at the request of PW-1 and as per PW-3, he had put his signature at the request of PW-1. Thus, the learned trial Court held that the testatrix had not admitted the execution of the will before the Deputy Sub-Registrar at the time of registration of the will. It was also held that registration of will was not necessary, but if the will is registered, the testatrix must admit her signature before the registering authority. Moreover, it was held that the propounder had failed to prove that the testatrix was acquainted with English. It was also held that the attesting witnesses had not put their signature at the instructions from the testatrix and the testatrix had stated nothing before them that she had executed the will and that the Deputy Sub-Registrar had read over the contents of the will before them. It was, thus, held that the will was not a valid one. Accordingly, the issue No.5 was decided in the negative and against the appellant. In view of the decision in respect of issue No.5, it was held that the appellant was not entitled to any relief. 10. Heard the submissions made by the learned Counsels for both sides. As those submissions have been dealt with herein below, it is not deemed necessary to burden the record with their submissions. It would be sufficient to mention that the stand of the learned advocate for the appellant in respect of decision by the learned trial Court on issues No.5 and 6 can be compartmentalized in 5 (five) broad heads, viz., (i) minor discrepancies in the evidence of the PWs during their cross examination was given more weightage than the documentary evidence which existed on record, (ii) the judgment was vitiated by surmises and conjectures; (iii) the propounder had not derived any benefit out of the will; (iv) the stand of the respondent in the objection was considered despite the fact that the respondent No.1 did not give any evidence; (v) no one else in the family had objected to the probate proceeding. In support of his submissions, the learned advocate for the appellant had relied on the following cases, viz., (i) Ved Mitra Verma Vs. In support of his submissions, the learned advocate for the appellant had relied on the following cases, viz., (i) Ved Mitra Verma Vs. Dharam Deo Verma, (2014) 15 SCC 578 , (ii) Leela Rajagopal & Ors. Vs. Kamala Menon Cocharan & Ors., (2014) 15 SCC 570 , (iii) Durga Vs. Anil Kumar, (2005) 11 SCC 189 . i. In the case of Ved Mitra Verma(supra), it was held that the exclusion of the other children of the testator and the execution of the will for the sole benefit of one of the son, i.e. the respondent, by itself, was not a suspicious circumstances, and that the property being self acquired, the will of the testator was held to prevail. The present case in hand is still in better footing, because in this case no property was bequeathed to the propounder. ii. In the case of Leela Rajagopal (supra), the testator had executed a will bequeathing her house property in favour of daughter of her predeceased daughter and to respondent No.1, who was her second daughter, to the exclusion of her sons. In this case, (1) there was a discrepancy as to place of execution of will, as stated in verification filed with application of probate by PW-3 and oral evidence of the said witness tendered in Court, (2) the Respondent No.1 had (i) participated in registration of will, (ii) summoning her friend (PW-3) to be an attesting witness, (iii) taking testator to the office of the Sub-Registrar for registration of will, (iv) lack of knowledge of English by testator. These were held to be of no consequence on the ground that the previous identical will was cancelled where there is no allegation about participation of Respondent No.1, and the contents of the will would have been explained to her before registration of the will or ascertained from the Sub-Registrar. However, the Hon’ble Supreme Court had held that these were not suspicious circumstances. iii. In the case of Durga(supra), the Hon’ble Supreme Court had held that two attesting witnesses deposing that the testator was in sound disposing mind at the time of execution of the will, as such, minor contradictions while deposing about the manner and time of execution of the will was not fatal. 11. iii. In the case of Durga(supra), the Hon’ble Supreme Court had held that two attesting witnesses deposing that the testator was in sound disposing mind at the time of execution of the will, as such, minor contradictions while deposing about the manner and time of execution of the will was not fatal. 11. The stand of the learned advocate for the respondent No.1 can be compartmentalized under 3 (three) broad heads, viz., (i) that the propounder had actively participated in the preparation of the will; (ii) that the propounder had derived the maximum benefit out of the will; (iii) that the will was neither signed not attested in accordance with the law. The learned advocate for the respondent No.1 has relied on the following cases – (i) Jagdish Chand Sharma, (2015) 8 SCC 615 : (2015) 0 Supreme(SC) 373 (ii); Indu Bala Bose Vs. Manindra Chandra Bose, AIR 1982 SC 133 : (1982) 1 SCC 20 ; (iii) H.Venkarachala Iyengar Vs. B.N. Thimmajamma, AIR 1959 SC 443 . i. In the case of Jagdish ChandSharma(supra), owing to the service rendered by the propounder, the testator had bequeathed the property in exclusion of his sons, for their disagreeable conduct. Referring to the depositions of the AWs, the Hon’ble Supreme Court had held that the will was not executed in terms of mandate of Section 63 of the Succession Act. Accordingly, it was held that the bequest in favour of the appellant was by exclusion of his wife, children and grandchildren, who were alive and with whom the testator had cordial relation, as such, the bequest was held to be ex facie unnatural, unfair and un-probable. Under the circumstances, it was held that the suspicious circumstances had an impact against the bequest. Thus, the appeal was dismissed. ii. In the case of Indu Bala Bose(supra), the Hon’ble Supreme Court had held that the propounder must remove the doubts of suspicious circumstances. iii. In the case of H. Venkarachala Iyengar (supra), it was held that if it is shown that the propounder had taken active part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstances. It was further held that the Court must be satisfied that the will had been validly executed by the testator who is no longer alive. 12. It was further held that the Court must be satisfied that the will had been validly executed by the testator who is no longer alive. 12. In view of the above, the following points of determination arises for the decision in this appeal:- (A) Whether the finding of the learned trial Court in respect of issue No.2 is sustainable on facts and in law? (B) Whether the execution and registration of will is surrounded by unusual or suspicious circumstances? (C) Whether the impugned judgment warrants any interference by this Court? 13. In so far as the findings in respect of issues No.1, 3 and 4 are concerned, the finding by the learned trial Court has not been disputed and/or contested by both sides. There is no cross objection by the respondent No.1 against the finding by the learned trial Court on issues No.1, 3 and 4, which were decided in favour of the appellant, as such, the decision by the learned trial Court in respect of those issues is not required to be elaborately scrutinized again. However, notwithstanding that there was no challenge to the decision of the learned trial Court on said issues, having perused the pleadings and materials on record, it is seen that there is no reason for this Court to question the decision by the learned trial Court on those issues. Hence, the decision on issues No.1, 3 and 4 are upheld. 14. The Point of determination No. ‘A’ is taken up first. On scrutiny of the records, it appears that the issue No.2 -“Whether the executrix executed the wi in favour of her eldest son out of love?” was wrongly framed. Hence, the decision on issues No.1, 3 and 4 are upheld. 14. The Point of determination No. ‘A’ is taken up first. On scrutiny of the records, it appears that the issue No.2 -“Whether the executrix executed the wi in favour of her eldest son out of love?” was wrongly framed. It is seen that in the will, (i) there is no statement by the testatrix that the will was executed by her out of love for the eldest son, (ii) from the contents of the will, it appears that as per the said will (Ext.1), the desire of the testatrix was that notwithstanding any nomination made by her in respect of her bank accounts, certificates, LIC, etc., the nominees would collect the proceeds and give it to the appellant-propounder to enable him to distribute the same in accordance with the mandate of the will and it was also provided that if the nominees delay collection of the effects, then the propounder was authorized to collect the proceeds of the bank accounts, certificates, LIC, etc., (iii) it is explicitly clear that by the said will (Ext.1), no money, property or asset of the testatrix was given to the propounder in his name, (iv) as per the will, the appellant-propounder was the youngest son of the testatrix, (v) by the will, the testatrix had merely mentioned that she had lost all love and affection for the respondent No.1, who was stated to have broken off all relation with her and, as such, she was excluding him, his wife, his children and his heirs from her estate. Thus, neither there is any statement in the will (Ext.1) that the same was executed out of love and affection for anyone, nor the will is in favour of the eldest son. Thus, the learned trial Court had erred in appreciating the facts and, as such, this Court is inclined to set aside the finding by the learned trial Court on issue No.2, and the said issue is struck-off, having found the same to have been wrongly and/or incorrectly framed. The point of determination No. ‘A’ is answered accordingly. 15. Point of determination No. ‘B’ is taken up now. The point of determination No. ‘A’ is answered accordingly. 15. Point of determination No. ‘B’ is taken up now. i. From the cross examination of the propounder (PW-1), it is seen that in his cross examination, PW-1 had stated that prior to her death, the testatrix had informed him that he was named as executor of her will. He had further stated that the testatrix had registered a Will and that he had not seen the will during her lifetime and that he had no knowledge of the contents of the will during the life time of the testatrix. The appellant-propounder (PW-1) had specifically denied in his cross examination that he was present at the time of registration of the will and he had also denied that he had called the Deputy Sub-Registrar to his residence. He had also denied that he had collected (sic. should have been “contacted”) Sanjay Khandelwal to be an attesting witness to the will. He had stated that his mother had informed that an advocate (whose name is omitted herein) at Guwahati had prepared the will. Thus, as per the cross-examination of PW-1, (i) he was not present when will was prepared, executed and registered; (ii) he did not call the attesting witnesses, (iii) he did not call the Deputy Sub-Registrar for registering the will, (iv) he did not request the attesting witnesses to sign the will. ii. As per the evidence-on-affidavit by PW-1 (para-5), PW-2 (para-1) and PW3 (para-1), one Late Phani Bhushan Das Gupta had typed the will of the testatrix. iii. In his cross-examination, the PW-2 had admitted that at the request of the propounder, he had gone to the house of the testatrix on 19.12.1994, when will was executed and registered. He had stated that the propounder had taken Sri U.C. Barman of Silchar Sub-Registry to their residence in evening hours. He had stated that a typed will was produced before the Deputy Sub-Registrar and the Deputy Sub-Registrar had put his official stamp on the will and asked PW-2 to put his signature. The testatrix also put her signature on the will in his presence. After that he left. Thus, as per his evidence both the PW-2 as well as the testatrix had put their signature in the presence of each other. The testatrix also put her signature on the will in his presence. After that he left. Thus, as per his evidence both the PW-2 as well as the testatrix had put their signature in the presence of each other. There is no cross examination of the said witness by which the validity of the attestation by him or by the PW-3 could be demolished and/or disbelieved. iv. As per cross examination of PW-3 he had gone to the residence of the testatrix at 11/11.30 am. at the request of the propounder. At the time when he had went, PW-2, testatrix and Phani Bhushan Das Gupta were present. On instructions from the propounder, PW-3 had read the will and then signed it. There is no cross examination of PW-3 to suggest that he and the testatrix had not signed in the presence of each other. Thus, the statements made in the evidence-on-affidavit by the PW-2 and PW-3 about due attestation in accordance with Section 63(c) of the Succession Act, 1925 could not be demolished. v. There was no cross examination of the PWs that on whose dictation the typist had typed the will, or on the point as to whether the propounder was present at the time of typing of the will and was influencing the testatrix at the time when the will was being typed-out. There is no cross examination of any of the three PWs to question the disposing state of mind of the testator. vi. The will (Ext.1), being a registered document, does contain an endorsement by the Deputy Sub-Registrar that the execution is admitted by the testatrix. Moreover, the PW-2 and PW-3 were not cross examined on the point if the will was read over before it was signed by the testatrix. vii. During cross-examination, the PW-1 had asserted that his mother (i.e. the testatrix) was familiar with English and it was not necessary for her to translate or interpret the contents of the will to her by anybody else. He denied that his mother had read upto Class-VI or VII and not read in English medium school. He further denied that his mother was not conversant with English language. He denied that his mother had read upto Class-VI or VII and not read in English medium school. He further denied that his mother was not conversant with English language. The signature of the testatrix on the will is in English in both pages of the will as well as in the back-page of page-1 of the will, used for endorsement made at the time of registration of will. The PW-2 and PW-3 were not cross examined on capacity of the testatrix to understand English language, or on the requirement of translating the will in the language in which the testatrix was allegedly conversant as per the respondent No.1. viii. The respondent No.1, who had objected to the probate proceeding, did not appear in the witness box to prove that he and his wife and children had maintained a cordial relationship with the testatrix. 16. Thus, it appears that the existence of some discrepancy in the evidence of the three PWs regarding the time of execution of will and with regard to the participation of the propounder in the preparation, execution and registration of the will. However, the participation of the propounder in the registration of the will to the effect of calling attesting witnesses and the Deputy Sub-Registrar, itself cannot be said to be an existence of a suspicious circumstances. However, it may be so if the propounder is found to have influenced the testatrix on had exercised control or coercion over the testatrix at the time of preparation, execution and registration of the will. None of these three circumstances could be culled out from the cross examination of the PWs. 17. Moreover, it is seen from the contents of the will (Ext.1) that no property was given to any of the sons of the testatrix, including the propounder. But, by the said will, in exclusion of the respondent No.1 and his wife and children, the property mentioned in the will was bequeathed to the (i) remaining three daughters-in-law of the testatrix, (ii) children of three sons of the testatrix, and (iii) children of the pre-deceased daughters of the testatrix. It is seen that except for the respondent No.1, no other legal representative of the testatrix had questioned the will or objected to the grant of probate. 18. It is seen that except for the respondent No.1, no other legal representative of the testatrix had questioned the will or objected to the grant of probate. 18. Thus, on considering all the circumstances, as indicated herein before, this Court is of the considered opinion that:- i. The denial by the propounder of having knowledge of the will and denying having called the attesting witnesses and Deputy Sub-Registrar for registering the will is not suspicious despite contradictory statement by the PW-2 and PW-3 in their cross examination to the effect that they had gone to the residence of the testatrix at the request of the propounder and that the propounder had called the Deputy Sub-Registrar from Silchar Sub-Registry to register the will. In the opinion of this Court, though the statement of PW-2 and PW-3 shows that the propounder had called attesting witnesses and Deputy Sub-Registrar, but it does not prove that the propounder had actively participated in the drafting of the will or had exercised control over the testatrix or had influenced the testatrix in the drafting of will in a particular manner. ii. The PW-2 and PW-3 had seen the typist, namely, Phani Bhusan Das Gupta, which means that the will was typed on the same day just before it was registered. On question being put during cross examination, the PW-1 had stated that the testatrix had informed him that the drafting of will was done at Guwahati by an advocate named by him. In view of the stand by the PW-1 that he had not seen the will during the lifetime of the testatrix, as such, when the registered will (Ext.1) was typed at residence of the appellant and the restatrix, there was no necessity for the appellant to prove that the will was drafted in Guwahati. Thus, as the will was typed in the presence of the testatrix, as such, it is not believable that the will was manufactured by the propounder. There is no cross-examination of any of the three PWs to bring home the point that the will was typed at the dictation of the appellant-propounder. iii. In their cross-examination, PW-2 and PW-3 had both admitted that they had signed the will at the instance of the propounder. There is no cross-examination of any of the three PWs to bring home the point that the will was typed at the dictation of the appellant-propounder. iii. In their cross-examination, PW-2 and PW-3 had both admitted that they had signed the will at the instance of the propounder. The said witnesses were not cross examined to demolish their stand in the evidence-on-affidavit to the effect that that they and the testatrix had signed the will in presence of each other. A mere existence of the alleged request by the propounder to PW2 and PW-3 to sign the will, does not make the propounder to be actively involved in the preparation of the will, so long as it is not established that the propounder was preparing the will of his own and/or was exercising influence over the testatrix at the time of preparation of the will. iv. The existence of a mere discrepancy as to the time of execution and registration of will, which as per PW-2, was signed and registered in evening hours, but as per PW-3, it was signed and registered at 11/11.30 pm, is not enough to hold the will to be forged or fabricated or to be a manufactured will because no benefit was derived by the propounder. In the opinion of this Court, a mere discrepancy about the time when the will was signed is not at all fatal. It is quite possible that by passage of several year’s time, memory may fade for some persons. It must be remembered that the will was executed and registered on 09.12.1994, and the PW-2 was cross examined on 02.07.2003 and the PW-3 was cross examined on 16.08.2003, which is around 9 years after the date when will was executed and registered. v. It is seen that the wife and children of the propounder are getting some legacy. But no attempt has been made to cross examine the witnesses to establish that the share of the wife and was in excess of share of other similarly situated beneficiaries. Moreover, the receipt of legacy by wife and children of the propounder equally with the wives and children of other two sons of the testatrix and children of daughters of the testatrix cannot be alleged to be conferment of any benefit to the propounder. Moreover, the receipt of legacy by wife and children of the propounder equally with the wives and children of other two sons of the testatrix and children of daughters of the testatrix cannot be alleged to be conferment of any benefit to the propounder. Granting benefit to daughters-in-law and grandchildren cannot be said to be unnatural, unfair and improbable, merely because one son (i.e. the respondent No.1) was excluded, the circumstances of which has been explained in the will. vi. The attesting witnesses had stated in their evidence-on-affidavit that the will was signed by them and the testatrix in the presence of each other, as such, will is not found to be contrary to the provisions of Section 63(c) of Succession Act, 1925 and Section 68 of the Evidence Act, 1872. 19. In the opinion of this Court, there is no absolute bar for an executor to bring personnel from the Sub-Registrar on Commission to his 75 years old mother for registration of her will or to request someone to be attesting witness to will. This Court is satisfied that the will was prepared by the testatrix out of her own volition and that from the evidence of the PW-2 and PW-3, the evidence that the testatrix and the attesting witnesses have signed in the will in the presence of the testatrix could not be established, as such, the valid attestation of the said will (Ext.1) is proved to the satisfaction of this Court. The endorsement in the will by the Deputy Sub-Registrar that the testatrix had admitted her signature shows that the will was actually signed by the testatrix, which was in English language, which does not disprove that the testatrix was conversant with English. With regard to allegation of lack of English language, this Court is guided by the ratio laid down by the Hon’ble Supreme Court in the case of Leela Rejagopal (supra), in para-15 thereof it has been held that “the lack of knowledge of English even if can be attributed to the testator would not fundamentally alter the situation inasmuch as before registration of the will the contents thereof can be understood to have been explained to the testator or ascertained from her by the Sub-Registrar.” 20. In the further opinion of this Court, as the respondent No.1 did not give his evidence in Court against the will, the respondent No.1 has not been able to demonstrate the existence of any suspicious circumstances in the execution and registration of the will. In the case of Ved Mitra Verma (supra), it has been held by the Hon’ble Supreme Court that the exclusion of some heirs will not vitiate the disposition made by the will. Moreover, it is seen that the sound disposing mind of the testatrix at the time of preparation and registration of the will was not questioned, and not disproved. 21. Thus, the cumulative effect of the discussion above is that the decision by the learned trial court on issue No.5 is not found to be sustainable either on facts or in law. The circumstances which the learned trial Court found to be suspicious, for reasons as indicated herein above, are not found to be suspicious circumstances at all. No benefit is derived by the propounder in his name and that the wife and children of the propounder had not been treated preferentially or differently than the other similarly situated legatees. The testatrix is found to have signed the will out of her free will in the presence of Deputy Sub-Registrar and Phani Bhusan Das Gupta (typist), as well as the two attesting witnesses, i.e. PW-2 and PW-3, who had attested it in presence of each other and in presence of the testatrix. Thus, this Court is inclined to set aside and reverse the finding of the learned trial Court on issue No.5 by holding that the appellant-propounder had been able to prove that the will was a valid one and probate, as applied for, can be granted. Thus, the point of determination No. ‘B’ is answered in the negative and in favour of the appellant by holding that the execution and registration of will is surrounded by unusual or suspicious circumstances. 22. Resultantly, in view of the decision of this Court on issue No.5, as framed by the learned trial Court, and on the point of determination No. ‘B’, the point of determination No. ‘C’ is answered in the affirmative and in favour of the appellant by holding that the impugned judgment dated 07.04.2005, passed by the learned Additional District Judge, Cachar, Silchar, in Test. Suit No. 31 of 2001 warrants interference by this Court. Suit No. 31 of 2001 warrants interference by this Court. Accordingly, the said judgment is set aside by granting probate in respect of the will dated 09.12.1994 executed by Late Hira Devi Khandelwal. ORDER 23. The appeal stands allowed. Let probate be granted to the appellant-petitioner. 24. The appellant shall deposit the requisite Court fees stamp paper and/ or shall deposit the e-court fees for the purpose of formal grant of probate. 25. The appellant shall comply with the requirements of Section 317 of the Succession Act within a period of 6 (six) months from the date of this order.