JUDGMENT & ORDER : This is an appeal under Section 100 of the CPC from the judgment dated 07.05.2013 delivered in T.A. No.14 of 2012 by the District Judge, South Tripura, Udaipur [as he then was]. By the said judgment, the judgment dated 28.04.2012 delivered in T.S.33(P) of 2010 by the Civil Judge, Sr. Division, South Tripura, Udaipur [as he then was] has been reversed and the suit instituted by the appellant being T.S.33(P) of 2010 for partition, declaration of the will as manufactured and inoperative and mean profit has been dismissed holding that the plaintiff-appellant is not entitled to the decree for partition as prayed for, as he had no existing right over the suit property. There was an attempt to explore an amicable settlement of the dispute which exists between the siblings, cousin and their mother but that has failed. 2. Briefly stated the relevant fact is that the appellant filed the suit. The plaintiff and the respondents No.2 and 4 are siblings, whereas the respondent No.1 is the widow of the predecessor and mother of the plaintiff and respondent No.4. The property in question has been left by Nibaran Ch. Ghosh, the father of the plaintiff and the respondents No.2 to 4 and husband of the respondent No.1. According to the plaintiff, the parties are entitled to one sixth share each of the suit land as described in the Schedule-A of the plaint. Nibaran Ch. Ghosh died on 21.10.2008. According to the plaintiff, after his death, he had persuaded the other defendants, the respondents herein, to cause partition of the said land by executing a registered partition deed. But the defendants No.1 and 2 claimed that they were and are the owners of the suit land by bequest and subsequent transfer. Hence the plaintiff and the defendant No.5 shall vacate the suit land. The defendant No.1 has transferred the land measuring 2.52 acres on accepting consideration money to the defendants No.3 and 4, the respondents No.3 and 4 herein. The plaintiff has brought on record that there was intervention by the village elders. In a village meeting it was disclosed that the defendant No.1 transferred her land to the defendants No.3 and 4 by a registered sale deed. The plaintiff has brought on record that there was intervention by the village elders. In a village meeting it was disclosed that the defendant No.1 transferred her land to the defendants No.3 and 4 by a registered sale deed. When the plaintiff and the defendant No.5 demanded to show them the registered will and the sale deed, neither the defendants No.1 and 2 nor the defendants No.3 and 4 could show those instrument. In the emerged circumstances, the said suit was instituted by the appellant. The defendants No.1 to 4 seriously disputed the claim of the plaintiff by filing their written statement. In the said written statement it has been asserted that Nibaran Ch. Ghosh by the will registered on 17.11.2004 bequeathed his landed property measuring 2.52 acres to defendant No.1, the respondent No.1 herein and the remaining landed property measuring 0.50 acre to the defendant No.2. After death of Nibaran Ch. Ghosh on 21.01.2008, the defendants No.1 and 2 maintained their possession over the suit land. Later on, by the registered sale deed No.1-1249 dated 14.07.2009, the defendant No.1 sold her entire property to the defendants No.3 and 4 on receiving the consideration money as settled. The defendants No.3 and 4 have been possessing the said land measuring 2.52 acre by growing seasonal crops and enjoying usufruct. Before filing of the suit, the plaintiff annoyed the defendants No.2 to 4 attempting to dispossess them. The defendant No.5 whose relation with Nibaran Ch. Ghosh is not very clear either from the plaint or from the evidence, save and except that the plaintiff has claimed that during his life-time Nibaran Ch. Ghosh demarcated a piece of the suit land in her favour, filed a separate written statement. In her written statement, she has asserted that the will was created by personification as Nibaran Ch. Ghosh had never executed such will bequeathing the suit land property in favour of the defendants No.1 and 2. It may also be noted that in her written statement she has claimed that she had already relinquished her share in favour of the plaintiff. Amongst the issues the following issue which is of paramount importance, was framed for purpose of adjudication in the suit : “Was the making of the registered WILL bearing No.139, dated 17.11.2004 in the custody of the defendants No.1 & 2 caused by fraud i.e; by way of exercising false personification? Amongst the issues the following issue which is of paramount importance, was framed for purpose of adjudication in the suit : “Was the making of the registered WILL bearing No.139, dated 17.11.2004 in the custody of the defendants No.1 & 2 caused by fraud i.e; by way of exercising false personification? Are the particulars of fraud by false personification as given in the plaint in sufficient to amount to an averment of fraud.” After hearing, the trial court decreed the suit on observing as under : “Hence, from the above discussion made it is clear that the plaintiff side has rightly proved by the evidence of various witnesses and various exhibited documents more specifically the Exbt.3 series that the said Nibaran Ch. Ghosh was capable of reading and writing at the time of execution of the will as he put his signatures upto the period of May, 2006 in the pension recipient register of the Bagabasha Gaon Panchayat. Though as it is already discussed above that thumb impression of said Nibaran Ch. Ghosh was also found in the said register for the month of March,05, October,05, June,05, July,05 and those thumb impressions were not authenticated by attaching any certificate. It is also discussed above that as no certificate was attached with the thumb impressions hence the genuineness of the thumb impression seems in doubt. The defendant side has also failed to show by producing any medical certificate that the said Nibaran Ch. Ghosh lost his eye sight, hence it is difficult to believe the story of the defendant side. As the plaintiff side has proved that at the time of execution of will the said Nibaran Ch. Ghosh was capable of reading and writing by Exbt.3 series, the making of the registered will bearing No.139 dated 17.11.2004 in the custody of defendants No.1 & 2 can be said to be caused by fraud i.e. by way of exercising false personification. Hence, issue No.5 is decided in favour of the plaintiff side.” [Emphasis added] 3. Being aggrieved by the said judgment dated 28.04.2012 as passed by the Civil Judge, Senior Division, South Tripura, Udaipur [as he then was] in T.S.(Partition)33 of 2010, the defendants No.1 to 4 filed an appeal under Section 96 of the CPC in the court of District Judge, South Tripura, Udaipur [as he then was] being T.A.14 of 2012. Being aggrieved by the said judgment dated 28.04.2012 as passed by the Civil Judge, Senior Division, South Tripura, Udaipur [as he then was] in T.S.(Partition)33 of 2010, the defendants No.1 to 4 filed an appeal under Section 96 of the CPC in the court of District Judge, South Tripura, Udaipur [as he then was] being T.A.14 of 2012. By the judgment dated 07.05.2013 delivered in T.A. 14 of 2012 by the District Judge, South Tripura, Udaipur [as he then was] the said appeal has been allowed by dismissing the suit. 4. To question the said judgment dated 07.05.2013 this appeal under section 100 of the CPC has been filed. Mr. Bhattacharjee, learned senior counsel appearing for the appellant has submitted that the execution of the will is shrouded by suspicious circumstances and the legatees did not discharge the burden of proof in respect of the execution without any shred of suspicion. According to Mr. Bhattacharjee, learned senior counsel, the judgment of the trial court is structured on sound reasoning. According to the appellant, during the life time of the testator he used to put his signature wherever he was supposed to sign on any records or papers. But in the will which was registered on 17.11.2004 the testator has put his thumb impression even in the records of registration including in the fee book. Mr. Bhattacharjee, learned senior counsel has further submitted that though the defendant-respondents No.1 to 4 has claimed that the testator lost his eye sight and for that reason he put his thumb impression on the testament, but no medical certificate in this regard was produced in the trial. 5. Mr. Bhattacharjee, learned senior counsel has further submitted that even in the year 2005 the testator put his signature. For drawing the pension, the testator used to put signature not his thumb impression on the recipient register of Bagabasa Gaon Panchayat. In the said register for the month of 2005, October 2005, June 2005, July 2005 (Exbt.3 series), the testator Nibarandra Ch. Ghosh put his signature. But in the will registered under No.139 dated 17.11.2014, the testator put his thumb impression and the legatees, the defendant-respondents No.1 and 2, have stated that the testator could not put his signature as he lost his sight. 6. Mr. Ghosh put his signature. But in the will registered under No.139 dated 17.11.2014, the testator put his thumb impression and the legatees, the defendant-respondents No.1 and 2, have stated that the testator could not put his signature as he lost his sight. 6. Mr. Bhattacharjee, learned senior counsel has contended further that thumb impressions were not authenticated by attaching any certificate meaning after obtaining the thumb impression, the person who took the thumb impression did not authenticate the same by attaching his certificate that he had obtained the said thumb impression of the person whom he identified. Mr. Bhattacharjee, learned senior counsel has stoutly added that the testator was capable of reading and writing and the caveator (the plaintiff) has proved his ability of signing the testament or will. As such, the first appellate court ought to have disbelieved the execution of the will by the testator by bequeathing the properties described in Schedule-A. As consequenti, the registered sale deed No.1-1249 dated 13.7.2009 by which the defendant No.1 had transferred 2.52 acre out of the land as described in the Schedule-A in favour of the defendants No.3 and 4 is bound to be declared illegal and inoperative for not having competence of the defendant No.1 to transfer. It had been declared void by the court of the first instance inasmuch as it was issued by a person without competence to transfer. Mr. Bhattacharjee, learned senior counsel was highly critical of the finding as returned by the first appellate court. The first appellate court has returned the following finding, after while the will as genuine : “On careful scrutiny of the evidence of the plaintiff and defendants side, learned Court below came to the finding that the registered Will found in the custody of defendants No.1 and 2 can be caused by fraud by way of exercising false personification. He came to the finding on analysis of the oral evidence of the witnesses. The fact remains that the registered Will not yet cancelled. No suit is filed for declaration of the said Will as nullity or void. It is a registered instrument and within the limitation period no suit was filed for cancellation of the instrument. Suspicious circumstances in respect of execution of the Will not comes out from the evidence. The fact remains that the registered Will not yet cancelled. No suit is filed for declaration of the said Will as nullity or void. It is a registered instrument and within the limitation period no suit was filed for cancellation of the instrument. Suspicious circumstances in respect of execution of the Will not comes out from the evidence. The Will is required to be attested by 2 or more witnesses, each of whom has seen the testator signing or affixing his mark in the Will. So by affixing his mark i.e. thumb impression the Will can be said to be genuine. In Tripura probate of Will is not necessary. In order to prove execution of Will it is absolutely necessary that the testator must have signed in the Will in presence of the attestors or testator must personally acknowledge his signature in presence of attestors. From careful scrutiny of the evidence as adduced by both the parties it is found that Nibaran Ch. Ghosh sometimes signed in the paper and sometimes he put thumb impression as he had been suffering from eye ailments. In his last days he turned into blind. Firstly, the Will was genuine one, secondly the Will was executed in presence of attesting witnesses. Exbt. C is the Will executed by Nibaran Ch. Ghosh. The thumb impression was taken by Prabhat Ch. Bhowmik. There are 2 attesting witnesses, one is Bhagirath Ch. Dey and another is Pramod Ranjan Chakraborty. The attesting witness Bhagirath Ch. Dey is examined by the defendant-appellants’ side. By that Will 50 Satak of land under Khatian No.158, old Dag No.697, present Dag No.1632 and 1631 was given to Gangarani Ghosh. Another 2.52 acres of land was given to Bhalobasha Ghosh under Khatian No.158, present Dag No.1632 and 1631. In total land measuring 3.02 acres. There is nothing in the evidence to show that the Will was executed by exercising fraud or false personification. Registered Will cannot be disbelieved only on the omnibus statement that it was executed by exercising of fraud and false personification. In the schedule-A, the entire property under plot No.1632 and 1631, land measuring 3.02 acres is shown. But that property already given to defendant No.2, Gangarani Ghosh and defendant No.1, Bhalobasha Ghosh by execution of Will. Registered Will cannot be disbelieved only on the omnibus statement that it was executed by exercising of fraud and false personification. In the schedule-A, the entire property under plot No.1632 and 1631, land measuring 3.02 acres is shown. But that property already given to defendant No.2, Gangarani Ghosh and defendant No.1, Bhalobasha Ghosh by execution of Will. So, the land cannot come under the purview of partition as the matter of false personification and fraud, is not established because the executor of the will Nibaran Ch. Ghosh sometime used his signature and sometimes put thumb impression in many documents. So, the Will is to be taken into consideration. It is not that the thumb impression was not put by him, but it was taken by one person in presence of attesting witnesses. The attesting witnesses also supported that in presence of attesting witnesses thumb impression was put. So, issue No.1 was not rightly decided by the learned court below.” 7. Since, the first appellate court has accepted the will as genuine, the bequest of the property as described in Schedule-A cannot be negated. Thus the plaintiff and the defendants No.3 and 4 or for that matter the defendants No.1 and 2 did not had any right over the said property by way of inheritance. However, later on, the defendants No.3 and 4 became the owner of the landed property measuring 2.52 acre by virtue of transfer caused by the defendant No.1 after death of the testator. Thus, after such transfer, the defendant No.1did not have any right over the landed property as described in the Schedule-A as well. But the defendant No.2 became the owner of the landed property measuring 0.50 acre (part of Schedule-A) by virtue of the said will. 8. Mr. A.K. Pal, learned counsel while defending the impugned judgment has contended that there is no infirmity in the analogy provided by the first appellate court. Mr. Pal, learned counsel has further asserted that the trial court has failed to appreciate the evidence in terms for determining the veracity of execution of the will. The trial court had failed to appreciate the evidence as led by the defendants No.1, 2 and 4 vis-a-vis the evidence as led by the plaintiff-appellant. The trial court has laid emphasis on the aspect of signature vis-a-vis the thumb impression in the backdrop of problems of eye sight of the testator. The trial court had failed to appreciate the evidence as led by the defendants No.1, 2 and 4 vis-a-vis the evidence as led by the plaintiff-appellant. The trial court has laid emphasis on the aspect of signature vis-a-vis the thumb impression in the backdrop of problems of eye sight of the testator. In the trial, the plaintiff adduced three witnesses viz. PW-1 (himself), PW-2 (Sri Nepal Pal) and PW-3 (Sri Swapan Acharjee). Three documentary evidence introduced by the plaintiff are Exbt.1 [the registered will executed by the predecessor on 17.11.2004] and Exbt.2 [the registered sale deed No.1-1249 executed by the defendant No.1 in favour of the defendants No.3 and 4]. The signatures of the testator in the pension register of Barabasha Panchayat have been marked as Exbt.3 series. The defendants adduced as many as eight witnesses viz. DW-1(the defendant No.1 herself), DW-2(Sri Pranatosh Debnath), DW-3(Sri Nakul Ch. Ghosh), DW-4 (Sri Nimai Das), DW-5(Sri Pramod Ranjan Chakraborty),DW-6 (Sri Bhagarathi Ch. Dey), DW-7 (Sri Sujit Saha) and DW-8(Sri Sameer Ranjan Saha). They introduced as many as eight documentary evidence including the original death certificate of Nibaran Ch. Ghosh, the testator (Exbt.A), the original sale deed No.1-1249 (Exbt.B), that original registered will (Exbt.C). Signature of Pramod Ranjan Chakraborty in Exbt.C has been marked as Exbt.C/1. Signature of Prabhat Ranjan Bhowmik, the deed writer in Exbt.C has been marked as Exbt.C/2 in series. Signature of Prabhat Ch. Bhowmik, the deed writer below the thumb impression of the testator in Exbt.C has been marked as Exbt.C/3, whereas signature of DW-6 in Exbt.C has been marked as Exbt.C/4. PW-1 has stated in the trial that the will is a manufactured one or created by personification. The said will, therefore, cannot be acted upon. Moreover, he has the right on the suit land to the extent of one sixth. He has further stated that the testator Nibaran Ch. Ghosh did never put his thumb impression. Thus the thumb impression available on the will cannot be accepted as that of the testator. PW-2 has testified in the trail in the same manner and stated that he cannot say whether on 17.11.2004 Nibaran Ch. Ghosh executed any will creating the bequest in favour of his wife and daughter. Ghosh did never put his thumb impression. Thus the thumb impression available on the will cannot be accepted as that of the testator. PW-2 has testified in the trail in the same manner and stated that he cannot say whether on 17.11.2004 Nibaran Ch. Ghosh executed any will creating the bequest in favour of his wife and daughter. PW-3, Sri Swapan Acharjee, the Panchayat Secretary of the Bagabasha Panchayat has produced the pension recipient register to show that on various date the testator had put his signature in the said register. He has admitted those signatures for the month of September 2003 in the register serial No.43, in the month of December, 2003, in serial no. 43, in the month of January, 2004, in serial No.43, in the month of February,04, in serial No.43, in the month of April,05 in the serial No.44, in the month of November,05, in serial No.42, in the month of December,05, in serial No.42, in the month of February,06 in serial no.41, in the month of May,06, in serial No.39. He also indentified all the signatures of Nibaran Ghosh in the above mentioned places and those are marked as Exbt.3 series. 9. In the cross examination, the said Panchayat Secretary has however admitted that at the time of obtaining the signatures on those registers he was not posted in the said Gaon Panchayat. He joined in the said Panchayat in the year 2010. Even the trial court has observed by way of paraphrasing the cross examination of PW-3 that he cannot say by seeing the signatures of Nibaran Ch. Ghosh that all signatures belong to him or not. Even he has categorically stated having refreshed on seeing the register that for the month of May, 2005 the money was taken by the plaintiff. Even in the month of March, 2005 (in Serial No.41) the money of Nibaran Ch. Ghosh was taken by putting thumb impression. Similarly for the month of June, 2005 (in Serial No.42), for the month of July, 2005 (in Serial No.42) the pension was received. In the subsequent months as well, it appears that the money was taken on affixing the thumb impression and below the thumb impression there is no attestation of the person who obtained the said thumb impression on the register. In the subsequent months as well, it appears that the money was taken on affixing the thumb impression and below the thumb impression there is no attestation of the person who obtained the said thumb impression on the register. But it appears that for the month of November, 2005, December, 2005, February, 2006 and May, 2006 the money was taken by putting the signature. DW-1 Bhalobasha Ghosh has stated in detail how the will was executed in her favour and one of her daughters namely Ganga Rani Ghosh. DW-1 has stated that the testator became blind since first part of 2004 and he started putting his thumb impression. DW-2 has testified that Ganga Rani Ghosh after her divorce started living with her mother (DW-1). DW-3 and DW-4 had witnessed certain part of transaction. DW-5 has given the detail how the will was executed. DW-5 has vouched in the trial that Nibaran Ch. Ghosh put his thumb impression in their presence on the will. DW-6 has also stated that he saw the testator in putting his thumb impression on the said testament. DW-7 has testified by saying that Nibaran Ch. Ghosh put his thumb impression on the fee register. Similarly, DW-8 has stated that the land measuring 2.52 acre out of the Schedule-A land was transferred by the defendant No.1 in favour of the defendants No.3 and 4. Despite that the trial court has observed that those thumb impressions were not authenticated by attaching any certificate. 10. Taking an impression that the will was manufactured by illegal means, the suit was decreed in pursuance to the judgment dated 28.04.2012, but the said judgment has been reversed by the impugned judgment. It appears that the trial court has not conformed to the canons of appreciating the evidence. The plaintiff has succinctly submitted that on the day of execution of the will, the testator was capable of signing and thus the thumb impression appearing in the will cannot be believed as the thumb impression of the testator. The trial court has accepted the said contention even though, the thumb impressions appeared in the pension recipient register without any certificate or attestation below thereto. DW-5 in particular has testified that Prabhat Ch. Ghosh, a deed writer whose hand writing is known to him has identified the handwriting and signature of said Prabhat Ch. Bhowmik. The trial court has accepted the said contention even though, the thumb impressions appeared in the pension recipient register without any certificate or attestation below thereto. DW-5 in particular has testified that Prabhat Ch. Ghosh, a deed writer whose hand writing is known to him has identified the handwriting and signature of said Prabhat Ch. Bhowmik. But DW-5 has not stated in his cross examination that he did know the testator. Similarly DW-6, one of the attesting witness has stated that the will was read over to the plaintiff in presence of Pramod Ch. Chakraborty and thereafter the testator had put his thumb impression in his presence. Since the medical certificate was not produced by the legatees, the trial court did not believe the thumb impressions appearing on the will is of the testator’s. Thus the will was declared to be inoperative, illegal and void initiao and cancelled for all purposes. Thereafter, pursuant to the said judgment a preliminary decree was issued for partition of the said land by the trial court. As stated, the first appellate court while deciding the appeal has observed that the process as observed by the legatees satisfies all requirements of proving the execution of the will by removing the alleged suspicious circumstances. The attesting witness PW-5 has clearly stated that the deed writer obtained the thumb impression of the testator and he put a certificate of attestation below that thumb impression. It is to be noted here that both the attesting witnesses DWs-5 and 6 are consistent while proving the execution of the testament, its process of preparation and registration. That apart, from Exbt.3 series, it has surfaced that the testator had also put his thumb impression on the pension recipient register so many times. Therefore, in absence of any medical records it can be inferred definitely that the testator had serious problem with his sight. 11. On the face of the evidence, the first appellate court has dismissed the suit by allowing the appeal. The finding as returned is in the considered opinion of this court does not suffer from any infirmity, inasmuch as the legatees through PWs 5 and 6 have established the execution of the will by the testator. It has not escaped the notice of this court that the plaintiff did not specifically laid that the thumb impression appearing on the testament [the will] are not of his father. It has not escaped the notice of this court that the plaintiff did not specifically laid that the thumb impression appearing on the testament [the will] are not of his father. Hence, on appreciation of the ground of objection, this court does not find any perversity in the finding as returned by the first appellate court. On affirmance, this court is constrained to observe that no substantial question of law is involved in this appeal. In the result, the appeal is dismissed. Draw the decree the accordingly. Send down the LCRs thereafter.