JUDGMENT : Arijit Banerjee, J. One Sisir Kumar Bhattacharya, since deceased, was the owner and resident of a flat situated in the north-east part of the first floor of a three storied building at 12A, Southern Avenue, Calcutta 700025. He passed away on 7 July, 2002 at S.S.K.M. Hospital, Calcutta. His wife had pre-deceased him. He left behind four sons and three married daughters. His sons are Subol, Somnath, Tarun and Goutam. His daughters are Amita, Gita and Namita. 2. On or about 9 January, 2008 Goutam filed PLA No. 6 of 2008 in this Court's Testamentary and Intestate Jurisdiction praying for probate of a document which he claimed to be the last Will and testament dated 12 May, 1997 executed by Sisir. The Will was written in Bengali language and registered with the District Sub-Registrar, South 24 Parganas, Alipore. Goutam is named as the executor in the said Will. 3. Gita, Namita, Somnath and Tarun had filed caveats and affidavits in support thereof. Accordingly, the probate proceeding became a contentious cause and was registered as TS 15 of 2009. Gita and Namita did not adduce evidence in support of their cases. Somnath and Tarun adduced evidence challenging the validity of the said Will. 4. After considering the issues suggested on behalf of the plaintiff i.e. Goutam and the contesting defendants i.e. Somnath and Tarun, a learned Judge of this Court by an order dated 12 July, 2010 framed the following issues:- "1. Is the Will in question, i.e. dated 12.05.1997 the genuine last will & testament of Sri Sisir Bhattacharjee? 2. Is the said Will dated 12.05.1997 otherwise valid? 3. Was the above Will executed in accordance with law? 4. Did the testator have legal capacity and right to bequeath the property in question as he did by the Will? 5. To what relief, if any, is the plaintiff entitled?" 5. Evidence was adduced by Somnath, Tarun, Goutam and one Sudhamay Goutam, who was an attesting witness to the Will in question. The other attesting witness namely, Biman Ghosh Dastidar had passed away by the time the probate proceeding was initiated. 6. The main subject matter of the Will is the flat at 12A Southern Avenue, Calcutta where the testator resided. It is a fairly small flat. The testator gave one room to his eldest son Subol and one room to his youngest son Goutam. 6. The main subject matter of the Will is the flat at 12A Southern Avenue, Calcutta where the testator resided. It is a fairly small flat. The testator gave one room to his eldest son Subol and one room to his youngest son Goutam. All other properties were bequeathed to Subol and Goutam in equal shares. Under the said Will no part of the testator's properties was given to Somnath or Tarun or to the three married daughters. 6. I will first note the grounds on which the defendants/caveators have resisted the Will being admitted to probate. 7. Somnath filed an affidavit affirmed on 3 April, 2009 in support of his caveat. The points taken in the said affidavit can be summarized as follows:- (i) Goutam shared an in-amicable relationship with the testator. (ii) The testator did not execute any Will. (iii) The signature purporting to be that of the testator on the alleged Will is not that of the testator. (iv) In the alternative, if it is held that the signature on the Will is that of the testator the signature is so placed on the document that it was not intended by the deceased to give effect to the said document as a Will. (v) The persons purported to have witnessed the Will did not see the deceased sign the said document and/or were not present when the deceased signed the same. (vi) The purported Will cannot be construed as a testamentary instrument, is vague, uncertain, unclear and no probate can be granted in respect thereof. (vii) The deceased lacked testamentary capacity. (vii) Execution of the Will was obtained by fraud, undue influence and importunity. (viii) Sudhamoy Goutam is an acquaintance of the plaintiff, and they together have jointly perpetrated fraud on the testator. (ix) At the time of registration of the document, the deceased did not know and/or was not made aware that the document sought to be registered was a Will. 8. The affidavit affirmed by Tarun on 3 April, 2009 in support of his caveat is identical in all respects with that of Somnath. 9. Appearing for the defendants Mr. Dhruba Ghosh, Learned Sr. Adv. and Mr. Ravi Kapur, learned Advocate (since elevated to the Bench of this Court) argued that there are glaring inconsistencies in the evidence of the attesting witness namely Sudhamoy Goutam. 9. Appearing for the defendants Mr. Dhruba Ghosh, Learned Sr. Adv. and Mr. Ravi Kapur, learned Advocate (since elevated to the Bench of this Court) argued that there are glaring inconsistencies in the evidence of the attesting witness namely Sudhamoy Goutam. Learned Counsel submitted that in answer to Q. 5 Sudhamoy said that Sisir had gone to him in the last week of April of 1997. However, in reply to Q. 18 he said that Sisir went to him two days prior to 12 May, 1997. Re. Qs. 21, 22 and 24, Sudhamoy said that he and the other attesting witness were present when Sisir signed on the Will. He also said that he signed on the Will in the presence of the testator but he did not say that the other attesting witness namely Biman Ghosh Dastidar signed in his presence or in the presence of the testator. 10. Learned Counsel submitted that re: Q. 36 Sudhamoy said that he came to know about the petitioner when he went to affirm the affidavit. However, re: Q. 38 he said that at the time when he attested the Will in 1997 he did not know the petitioner. Re. Q 43 he said that before and after drafting of the Will he did legal work for Sisir. Re. Q. 44 he said that he had not done any legal work for the petitioner. Learned Counsel submitted that the aforesaid evidence of Sudhamoy is completely belied by Sudhamoy's letter dated 19 April, 1985 (Ext. 10) addressed to the Officer-in-Charge, Tollygunge Police Station, wherefrom it appears that Sudhamoy was the legal advisor of the petitioner. 11. Learned Counsel also referred to Sudhamoy's answers to Qs. 48- 52, 54, 57, 60, 61, 71, 72, 74, 81, 82, 84-88, 95 and 95. I have gone through the said questions and answers but I am of the opinion that the same are not relevant for the purpose of deciding the issues in hand. 12. Learned Counsel submitted that the execution of the Will has been challenged mainly on two grounds, namely; (i) the testator did not have the physical capacity to independently visit a lawyer and prepare a Will in the year 1997 and (ii) there were suspicious circumstances surrounding the execution of the Will which have not been dispelled by the propounder. In this connection learned counsel drew my attention to Qs. In this connection learned counsel drew my attention to Qs. 68-76, 110-113, 251, 254-262 of Somnath's deposition. The said questions and answers are reproduced hereinunder:- "Q. 68. (Shown a document) What are these documents? Ans. These documents relate to the incident that Gautam Bhattacharya filed a suit against my father, late Sisir Kr. Bhattacharya and it is the certified copy of the aforesaid suit (witness identifies) Q. 69. How did you get these documents? Ans. After applying for a certified copy in this connection, I received this copy from Alipore Court. Q. 70. Why have you filed a caveat in this proceeding? Ans: It may be mentioned here that my father, late Sisir Kr. Bhattacharya executed a deed of gift in my favour on 16.09.1981 and in the said deed of gift there was also provision for my eldest brother, Subol Kr. Bhattacharya and even prior to this, my father executed a hand-written will dated 23.04.1979 and even in the said will, there was also provision for my eldest brother. It may also be mentioned further that this alleged will was executed during pendency of the suit being 85/1994 in connection with the Deed of Gift. It may also be mentioned here that towards the end of the year 1992, the health of my father started deteriorating and prior to the year 1994, my father was affected by certain diseases such as chronic bronchial asthama, hypertension, serious respiratory trouble, heart block, blood sugar and hearing problem. This was mentioned in the admission made by my father before the learned Sub Judge, Alipore. In the year 1995, my father admitted before the learned Sub-Judge, Alipore that he was not able to see anything even with the help of spectacles and towards the end of the year 1996, his movement became very much restricted and he was not able to move alone. Due to the ailments such as short of hearing and poor eyesight, my father lost faith in himself and became dependent on others. It may also be mentioned here that my youngest brother, Goutam Bhattacharya, who is a Government Doctor, himself admitted on 14.08.2007 that 'my 86 years old infirm blind father'. It may be mentioned in this connection that my father reached the age of 86 years in the year 1994. Goutam Bhattacharya also admitted that my eldest brother was born crippled and he was physically challenged. It may be mentioned in this connection that my father reached the age of 86 years in the year 1994. Goutam Bhattacharya also admitted that my eldest brother was born crippled and he was physically challenged. So, it appears that Goutam Bhattacharya himself admitted in the year 1994 that my father was blind and my father, in the month of September, 1995, himself admitted that he was not able to see anything even with the help of spectacles in both the eyes. A person, who was 89 years old and short of hearing, who could not see through his eyes, it was not at all possible for him to go alone to any office or to any lawyer and to put his signature by seeing the papers on which he was supposed to sign in the Registry Office. It may also be mentioned here that when my youngest brother, Goutam Bhattacharya himself admitted that my eldest brother was born crippled, then it was impossible for a man like him to go to the Registry Office and see every page and put his signature. For these reasons I filed a caveat in this Hon'ble Court. Q. 71. (Shown a document) What does this document contain? Ans: This document contains the deposition before the learned Sub-Judge, Alipore. Q. 72. What is the document? Ans: This is a certified copy of the depositions which were adduced before the learned Sub-Judge, Alipore, by my father in connection with the Title Suit No. 85 of 1994. Q. 73. (Shown a document) Please come to page 12 of this copy document What is written in the last paragraph? Ans: (Witness reads) Q. 74. How did you get a copy of this document? Ans: After applying before the learned Alipore Court, I have received this copy. (Tendered the document and marked with Ext. 5') Q. 75. (Shown a document) What is this document? Ans: This is a certified copy of the plaint in respect of Case No. 85 of 1994. Q. 76 (Shown page 6 of the document) What is the first paragraph of the document? Ans: The plaintiff for the last few years is not keeping good health, he has hypertension, he is a patient of chronic bronchial asthama and has also a poor eyesight. The plaintiff has been required to lead a very lonely life with serious respiratory trouble. Ans: The plaintiff for the last few years is not keeping good health, he has hypertension, he is a patient of chronic bronchial asthama and has also a poor eyesight. The plaintiff has been required to lead a very lonely life with serious respiratory trouble. Meanwhile the plaintiff had heart block and also developed diabetes. Q. 110. I am showing you a document dated 9th March, 2012 disclosed as Serial No. 3 (Shown) What is the document? Ans: This is a letter under the RTI Act from Kolkata Municipal Corporation to Tapati Chatterjee, my advocate. And the receipt is also here in respect of the payment made. This is the original envelope. Q. 111. Kindly take a look at the letter enclosed with this communication and tell my lord what does it contain? Ans: My brother had written in his own handwriting that my "86 years old infirm, blind father". He had written this letter to the Vigilance Officer on 14.08.2007. Q. 112. How did you receive this letter? Ans: this has been received through my advocate from the Kolkata Municipal Corporation. Q. 113. Was this received by your learned advocate in the usual course of business? Ans: Yes upon making application, this was received. (The document is tendered and marked as Exbt. 9 collectively) Q. 251. I suggest to you that the will dated 12th May 1997 was duly attested by two attesting witnesses in your father's presence and your father signed the will in their presence? Ans: I do not agree because of the reason that Biman Ghosh Dastidar, one of the attesting witnesses, a close friend of Goutam Bhattacharya, used to work with Kolkata Police and was addicted to liquor and Sudhamoy Goutam, another attesting witness, did legal work on behalf of Goutam Bhattacharya on 18th April, 1985. He was the Legal Advisor of Goutam Bhattacharya and especially acquainted with him. Q. 254.Mr. Bhattacharya, I am showing you your answer to question no. 251 in cross examination where you have said that Sudhamoy Goutam, another attesting witness, did legal work on behalf of Goutam Bhattacharya on 18th April, 1985, can you please clarify what legal work you are talking about in this answer? Ans: Mr. Sudhamoy Goutam, acting as the advocate of Mr. Goutam Bhattacharya, had written a letter to the Officer-in-Charge of the Tollygunge Police Station on 18th April, 1985. Q. 255. Ans: Mr. Sudhamoy Goutam, acting as the advocate of Mr. Goutam Bhattacharya, had written a letter to the Officer-in-Charge of the Tollygunge Police Station on 18th April, 1985. Q. 255. Have you had the occasion to see this letter written by Sudhamoy Goutam to the Tollygunge Police Station? Ans: I have seen this letter and a copy of that letter has been disclosed in this proceeding. Q. 256. From where did you get a copy of that letter? Ans: During the pendency of this suit while I was looking into the files of my younger uncle Sukumar Bhattacharya, I had come across this letter. Q. 257. I am showing you a document a copy whereof has been disclosed by letter dated 19th March, 2013 by the defendants being a letter dated 18th April, 1985, is this the document that you are referring to? Ans: Yes. Q. 258. Is this the true and/or original letter that you found in your uncle's files? Ans: Yes. I had got this letter from the old file of Late Sukumar Bhattacharya and it appears from this letter that the original of this letter was sent to the Tollygunge Police Station. Q. 259. What is the purport of this letter? Ans: From this letter it clearly appears that Sudhamoy Goutam had acted as the advocate of Goutam Bhattacharya. Q. 260. Whose signature appears on this document dated 18th April, 1985? Ans: The signature of Sudhamoy Goutam, Advocate, appears at the bottom of the letter. Q. 261. Are you acquainted with the signature of Sudhamoy Goutam? Ans: Yes. I am very well acquainted with the signature of Mr. Sudhamoy Goutam because right from the beginning of this suit, I have found the signature of Sudhamoy Goutam appearing as a witness to the alleged Will and Sudhamoy Goutam has signed under the endorsement prepared by Sudhamoy Goutam while adducing the evidence before this Court has admitted of the signature. This is how I am acquainted with the signature of Sudhamoy Goutam. (This document is tendered and marked as Exhibit 10, subject to objection) The Court: Mr. Dhruba Ghosh, learned Counsel for the caveators, submits that the admissibility of this document has been decided by this Court by its order dated 4th March, 2015 passed in GA No. 117 of 2015 and as such there can be no valid objection to marking the said document as an exhibit. Mr. Dhruba Ghosh, learned Counsel for the caveators, submits that the admissibility of this document has been decided by this Court by its order dated 4th March, 2015 passed in GA No. 117 of 2015 and as such there can be no valid objection to marking the said document as an exhibit. Mr. Swarnendu Ghosh, learned Counsel appearing for the plaintiff, disputes such contention of Mr. Dhruba Ghosh and submits that the observation in the order dated 4th March, 2015, is only prima facie and the document requires to be proved by the witness which has not been done. Q. 262. Do you know Sudhamoy Goutam personally? Ans: No, I do not know Sudhamoy Goutam personally. But when he had come to adduce evidence, I had seen him and while deposing before the Court he had specifically stated that he did not know Dr. Goutam Bhattacharya and he had never taken any legal work on his behalf, but it appears from his letter that since 18th April, 1985, Sudhamoy Goutam was associated with Dr. Goutam Bhattacharya and he had done legal work on behalf of Dr. Goutam Bhattacharya. It is pertinent to mention here that while deposing before this Court Sudhamoy Goutam had stated that he knew my father, late Sisir Kumar Bhattacharya had gone to him in 1997 without his walking stick. Dr. Goutam Bhattacharya who is a doctor at Government Hospital had admitted in writing on 14th August, 2007 that his father was infirm and blind since 1994 and while deposing before the Court in TS No. 85 of 1994 my father, later Sisir Kumar Bhattacharya had very specifically stated that he was unable to see with or without spectacles. From the said facts mentioned by me it is clear that Sudhamoy Goutam had deposed falsely before the Hon'ble Court. It is clear, that Sudhamoy Goutam has acted as the lawyer of Dr. Goutam Bhattacharya during 18th April, 1985 and, thereafter, had prepared the alleged Will and had been a witness to the same which proves that Sudhamoy Goutam was intimately associated with Dr. Goutam Bhattacharya. It is clear from this that Sudhamoy Goutam had deposed as instructed by Dr. Goutam Bhattacharya and furnished facts according to the instruction of Dr. Goutam Bhattacharya." 13. Goutam Bhattacharya. It is clear from this that Sudhamoy Goutam had deposed as instructed by Dr. Goutam Bhattacharya and furnished facts according to the instruction of Dr. Goutam Bhattacharya." 13. Relying on the aforesaid evidence, learned Counsel submitted that the testator was almost blind and was otherwise physically infirm and was not in a proper state of mind to execute a Will on 12 May, 1997 when the Will in question was allegedly executed. 14. Learned Counsel relied on the following decisions:- (i) H. Venkatachala Iyengar vs. B. N. Thimmajamma, (1959) AIR SC 443, paras 19-23. This decision lays down the tests for deciding whether or not a Will should be probated. Learned Counsel submitted that none of the tests are satisfied. I will revert back to the decision later. (ii) Kartar Kaur vs. Milkho, (1996) 11 SCC 626 , paras 13-18. This decision was relied upon in support of the proposition that where there are suspicious circumstances surrounding the execution of a Will which have not been explained by the propounder, probate of a Will should not be granted. (iii) Bharpur Singh vs. Shamsher Singh, (2009) 3 SCC 687 , paras 14- 17 and 23. This decision also discusses the general principles governing grant of probate of a Will. I will revert back to this decision later. (iv) S. R. Srinivasa vs. S. Padmavathamma, (2010) 5 SCC 274 . The Apex Court held that in view of several suspicious circumstances surrounding the execution of the Will, the High Court was not justified in admitting the Will in question to probate. I will discuss this decision later. 15. On the basis of the above submission, learned Counsel for the defendants prayed for dismissal of the suit. 16. On the other hand, Mr. Swarnendu Ghosh, learned Advocate led by B. S. Sinha Roy, learned Advocate submitted that there is nothing unusual about the Will and there are no suspicious circumstances surrounding the execution of the Will. It was submitted that the testator shifted to the flat which is the subject matter of the Will in the year 1969 with Amita, Subol, Tarun and Goutam. Gita and Namita got married prior to that. Amita also got married in 1970. Somnath since birth lived with the testator's eldest brother Sushil till his marriage. In all official records Sushil instead of Sisir had been recorded as Somnath's father. Gita and Namita got married prior to that. Amita also got married in 1970. Somnath since birth lived with the testator's eldest brother Sushil till his marriage. In all official records Sushil instead of Sisir had been recorded as Somnath's father. After his marriage Somnath shifted to his in-laws' house at 37 Lake Place, Kolkata in the year 1985. Tarun also after his marriage shifted to his flat in 1990 at 42/50 New Ballygunge Road, Kolkata. Subol is speech and hearing impaired since his birth. Subol got married in the year 1986 to Krishna who is also speech and hearing impaired. They gave birth to a normal baby son, Sumon. Krishna prior to Sumon's birth left for her paternal home and since then never returned to the suit flat leaving Subol alone. Goutam and his wife looked after Subol. 17. Mr. Ghosh submitted that at the time of execution of the Will on 12 May, 1997 Sisir was mentally and physically alert and healthy and remained so, till his death on 7 July, 2002. Goutam was nowhere near Sisir when the Will was executed. He first came to know of execution of the Will when he received a letter at Malda from Sisir along with the original Will. 18. Learned Counsel submitted that though both Gita and Namita filed affidavits in support of their caveats, yet, they did not adduce any evidence in support of their respective affidavits. This means that ultimately they have withdrawn their challenge to the Will. Amita filed an affidavit supporting the Will. Sudhamoy Goutam is an eminent practising Advocate at the Alipore Court and he has duly proved the Will as an attesting witness. 19. Learned Counsel then drew my attention to the affidavits filed by Somnath and Tarun in support of their respective caveats and to their depositions. In particular, my attention was drawn to Qs. 117 to 120 of Somnath's evidence in support of the submission that Somnath never saw the Will prior to affirming the affidavit in support of his caveat. Therefore, his challenge to the signature of the testator is based on assumptions and surmises. Similarly, learned Counsel drew my attention to Qs. 206 to 214 of Tarun's deposition in support of the submission that Tarun also never saw the Will even up to the stage of deposing before this Court. Therefore, his challenge to the signature of the testator is based on assumptions and surmises. Similarly, learned Counsel drew my attention to Qs. 206 to 214 of Tarun's deposition in support of the submission that Tarun also never saw the Will even up to the stage of deposing before this Court. The allegations made by Tarun are imaginary, vague and based on assumptions. 20. Mr. Ghosh submitted that Somnath and Tarun have no feeling for their deaf and dumb eldest brother Subol. They never looked after Subol. Their only intention is to grab a share in the said flat. Subol has survived only because Goutam and his wife looked after him, attended to his day to day needs including medical needs and cared for him in all possible manners and this is recognized by the testator in the said Will. 21. As regards the argument of the caveators that execution of the Will is surrounded by suspicious circumstances, Mr. Ghosh submitted that this point was neither taken in the affidavits filed by Somnath and Tarun nor was made an issue. Hence, the caveators cannot be permitted to urge this point. There is no documentary or oral evidence in support of the allegation of suspicious circumstances. 22. It was submitted that Sisir executed the Will keeping in mind the welfare, wellbeing and future of Subol. Only a very small room measuring about 120 sq. ft. was given to Goutam so that he could reside in the said flat and take care of Subol. 23. Mr. Ghosh referred to Secs. 61 and 63 of the Indian Succession Act, 1925 and submitted that the Will has been proved in accordance with law. He further relied on the following decisions:- (i) Naresh Charan Das Gupta vs. Paresh Charan Das Gupta, (1955) AIR SC 363, para 4. The Apex Court held that the burden of proof that a Will was executed under undue influence is on the party who alleges it. It is not every influence which is brought to bear on a testator that can be characterized as 'undue'. It is open to a person to plead his case before the testator and to persuade him to make a disposition in his favour. If the testator retains his mental capacity and there is no element of fraud or coercion the Will cannot be attacked on the ground of undue influence. It is open to a person to plead his case before the testator and to persuade him to make a disposition in his favour. If the testator retains his mental capacity and there is no element of fraud or coercion the Will cannot be attacked on the ground of undue influence. (ii) A.E.G. Carapiet vs. A.Y. Derderian, (1961) AIR Calcutta 359. A Division Bench of this Court at paragraphs 16 to 19 of the judgment explained the tests by which the Probate Court may judge whether the testator had a sound disposing mind. (iii) Ramesh Chandra Das vs. Lakhan Chandra Das, (1961) AIR Calcutta 518. A learned Judge of this Court discussed as to what amounted to a testator having a good state of health and mind. (iv) Sridevi vs. Jayaraja Shetty, (2005) 2 SCC 784 . The Apex Court held that the onus of proving a Will is on the propounder. In the absence of suspicious circumstances, proof of testamentary capacity and signature of the testator is sufficient to discharge such onus. The onus to explain suspicious circumstances, if any, is also on the propounder. However, the onus to establish allegations of undue influence, fraud or coercion is on the persons making such allegations. In either case proof should be one of satisfaction of a prudent man. (v) H. Venkatachala Iyengar vs. B. N. Thimmajamma (supra). The caveators have also relied on this decision and I will discuss it later in this judgment. (vi) Union of India vs. Ibrahim Uddin, (2012) 8 SCC 148 . This case was relied on in support of the submission that the Court cannot travel beyond the pleadings as no party can lead evidence on an issue/point not raised in the pleadings. (vii) Ravinder Singh vs. Janmeja Singh, (2000) 8 SCC 191 . In the context of an election petition the Apex Court observed that no evidence can be led on a plea not raised in the pleadings and that no amount of evidence can cure defect in the pleadings. (viii) Kartar Kaur vs. Milkho, (1996) 11 SCC 626 . Paragraph 17 of the judgment has been relied upon which merely extracts a paragraph from the earlier decision of the Apex Court in the case of H. Venkatachala Iyenger (supra). (ix) Ramabai Padmakar Patil (dead) through LRs vs. Rukminibai Vishnu Vekhande, (2003) 8 SCC 537 . (viii) Kartar Kaur vs. Milkho, (1996) 11 SCC 626 . Paragraph 17 of the judgment has been relied upon which merely extracts a paragraph from the earlier decision of the Apex Court in the case of H. Venkatachala Iyenger (supra). (ix) Ramabai Padmakar Patil (dead) through LRs vs. Rukminibai Vishnu Vekhande, (2003) 8 SCC 537 . In this decision the Apex Court discusses the general principles for deciding whether a Will should be admitted to probate. (x) M.B. Ramesh (Dead) by LRs vs. K.M. Veeraje Urs (Dead) By LRs, (2013) 7 SCC 490 . The Apex Court held that the totality of the evidence on record will have to be looked into in coming to a conclusion as to whether or not a Will has been duly proved and requirements of Secs. 61 and 63 of the Indian Succession Act have been satisfied. (xi) S. R. Srinivasa vs. S. Padmavathamma, (2010) 5 SCC 274 . In this decision the Apex Court discussed the mode and manner of proof of execution of a Will and also the issue of suspicious circumstances. Court's View:- 24. Before taking the issues involved in the suit it would be helpful to note the contents of the Will of which probate is being sought. By the said Will Sisir devised different portions of the residential flat to Subal and Gautam as indicated in detail in the Will. He gave nothing to the three daughters and the other two sons namely Tarun and Somnath. However, Sisir explained the reason therefor in the Will. He recorded that he got his daughters 'married to suitable grooms and they are living peacefully, happily and affluently in the homes of their respective husbands'. He also noted that Tarun and Somnath were 'well established in their respective fields of work and since a long time, they have been living elsewhere in separate mess along with their wives sons and others peacefully and happily'. Later in the Will he recorded that his 'second son Tarun Kumar Bhattacharya and third son Somnath Bhattacharya do not keep any sort of connection whatsoever with me. For that reason I do not give any portion of my property to them'. He further recorded in the Will that 'due to their physical disability, I have lot of love and affection towards my elder son and his wife and I am always worried about them and their child. For that reason I do not give any portion of my property to them'. He further recorded in the Will that 'due to their physical disability, I have lot of love and affection towards my elder son and his wife and I am always worried about them and their child. In order that my elder son and his family and my youngest son Sri Gautam Bhattacharya is able to live and reside in the flat occupied possessed and enjoyed by me, without any dispute after my death, I am making provision of partition and distribution by virtue of this Will'. Finally he recorded that 'my said son Dr. Gautam Bhattacharya has been shouldering all responsibilities and liabilities of mine and his elder brother and sister-in-law and their only son, Suman and have been always treating me and his handicapped brother and sister-in-law with due respect and love'. 25. Thus, from the tenor of the Will it is clear that Sisir had special love and affection and weakness for Subal and his wife since both were handicapped. He was not fond of Tarun and Somnath since they lived separately and did not look after their ageing father. He was fond of Gautam who took upon himself all responsibilities of his ageing father and physically challenged elder brother and sister-in-law. To my mind, there is nothing unnatural about the disposition made in the Will in spite of Sisir favouring Subal and his wife and Gautam and disinheriting Tarun and Somnath and the three married daughters. 26. Just because two sons and a daughter-in-law are the beneficiaries under the Will to the exclusion of the other two sons and three married daughters, the Will cannot be said to be unnatural. A Will is generally made when the testator desires to alter the natural course of succession. As observed by the Apex Court in the case of Ramabai Padmakar Patil (dead)-vs.-Rukminibai Vishnu Vekhande (supra), a Will is executed to alter the mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a natural heir. If a person intends his property to pass equally to his natural heirs, there is no necessity at all of executing a Will. It is true that the propounder of a Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. If a person intends his property to pass equally to his natural heirs, there is no necessity at all of executing a Will. It is true that the propounder of a Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that the natural heirs or some of them have been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance. 27. Now I come to the question as to whether or not the Will was duly signed by Sisir i.e., whether the execution of the Will has been duly proved. Sec. 63 of the Indian Succession Act, 1925 prescribes the manner of execution of an unprivileged Will. The requirements are as follows:- (a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. (c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. 28. The burden of proving valid execution of a Will and that it is a genuine document is squarely on the propounder. He must establish that the testator has signed the Will within his free will and having a sound disposition of mind and understood the nature and effect of the instrument on which he was appending his signature. The testamentary capacity of the propounder must also be established. The propounder must explain to the satisfaction of the Court suspicious circumstances, if any, surrounding the execution of the Will. 29. The testamentary capacity of the propounder must also be established. The propounder must explain to the satisfaction of the Court suspicious circumstances, if any, surrounding the execution of the Will. 29. A Will has to be proved like any other document. Sec. 68 of the Indian Evidence Act provides that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence. The proviso to Sec. 68 clarifies that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution is specifically denied by the person by whom it purports to have been executed. Sec. 69 of the Evidence Act provides for the manner of proof of execution of a document which is required by law to be attested, when no attesting witness is found. We are not concerned with such a situation. 30. Taking the first issue, i.e., whether or not the Will in question is the genuine last Will and testament of Sisir, I find that both Goutam and Sudhamay Goutam (attesting witness) has deposed that it is indeed a Will executed by Sisir. The signature of Sisir has been proved by the said two witnesses. No other Will of any date subsequent to 12 May, 1997 has been produced by anybody. A bald statement has been made in the affidavits filed by Somnath and Tarun to the effect that the signature purporting to be that of Sisir on the alleged Will is not that of Sisir. However, the answers to Qs. 117 to 120 of Somnath's deposition and the answers to Qs. 206 to 214 of Tarun's deposition establish that they had not seen the Will and consequently the signature on the Will prior to affirming their respective affidavits in support of their caveats. Hence, the assertion by them that the signature on the Will is not that of the testator was purely speculative. A case cannot be built up on the basis of speculation. Hence, the assertion by them that the signature on the Will is not that of the testator was purely speculative. A case cannot be built up on the basis of speculation. Further, neither Somnath nor Tarun asked for examination of the testator's signature by handwriting expert even after seeing the Will in the course of the proceeding. Hence, clearly they were not serious about their contention that the signature of the testator on the Will is not genuine. I have carefully analysed the evidence of Somnath and Tarun and I have come to the conclusion that no case has been made out in support of their speculative defence that the signature of the testator on the Will is not genuine. Hence, the first issue is decided in favour of the plaintiff. I hold that the Will in question is the last Will and testament of Late Sisir Bhattacharjee bearing his genuine signature. 31. Taking the second issue i.e., whether or not the said Will is otherwise valid, no case has been made out by the defendants as to why the Will is otherwise invalid. No argument has been advanced by the defendants on this issue. Hence, I hold that the Will is otherwise a valid Will. 32. As regards the third issue, I have briefly discussed above the legal requirements for executing a valid Will. The Will was signed by the testator in the presence of two witnesses as would appear from the deposition of one of the testators (Sudhamay Goutam) and the two witnesses then put their signatures on the Will in front of the testator (see Qs. 21 to 24 of Sudhamay Goutam's deposition). The other witness to the Will namely, Biman Ghosh Dastidar had passed away and accordingly could not be called to prove the Will. However, the requirement in law is not that both the witnesses must depose in a probate proceeding to prove the Will. If one of the witnesses is dead at the time of the proceeding, the other witness alone is competent to prove the Will. Hence, I hold that the Will has been executed in accordance with law. 33. As regards the fourth issue, no argument has been advanced on behalf of the defendants to the effect that the testator did not have the legal capacity or right to bequeath the property in question as he did by the said Will. Hence, I hold that the Will has been executed in accordance with law. 33. As regards the fourth issue, no argument has been advanced on behalf of the defendants to the effect that the testator did not have the legal capacity or right to bequeath the property in question as he did by the said Will. Hence, I have to conclude that the testator had such legal capacity. In any event, the Probate Court does not decide whether or not the testator had title to a property which is the subject matter of his Will. 34. Mr. Dhruva Ghosh, Learned Senior Counsel, argued that the testator did not have the physical capacity to independently visit a lawyer and prepare a Will in the year 1997. Evidence has been led on this point by Somnath and Tarun. However, such point has not been taken in the pleadings filed by Somnath and Tarun. It is established law that relief not founded on the pleadings cannot be granted. A decision in a case cannot be based on grounds outside the pleadings of the parties. No evidence is permissible to be taken on record in the absence of the pleadings in that respect. The Court cannot travel beyond the pleadings as no party can lead evidence on an issue/point not raised in the pleadings and in case such evidence has been adduced, it is to be ignored. It may be a different situation where in spite of specific pleadings a particular issue is not framed and parties having full knowledge of the issue in controversy lead evidence and the Court records a finding on it [Plz. See Union of India vs. Ibrahim Uddin (supra)]. Similarly, in Ravinder Singh vs. Janmeja Singh (supra), the Apex Court observed that it is an established proposition that no evidence can be led on a plea not raised in the pleadings and no amount of evidence can cure defect in the pleadings. 35. In view of the aforesaid being the position in law, I am unable to take into consideration the evidence adduced on behalf of the defendants trying to establish that the testator was not in a fit state of health to execute the said Will. On the other hand, the attesting witness Sudhamay Goutam stated in cross-examination that the testator did not have any physical problem when he was executing the Will. On the other hand, the attesting witness Sudhamay Goutam stated in cross-examination that the testator did not have any physical problem when he was executing the Will. When the testator visited his chamber he did not walk with a stick. In examination-in-chief he stated that the testator visited him alone on 2/3 occasions and thereafter he was accompanied by someone else. The propounder deposed that the testator lived for more than five years after execution of the said Will and that all along he was fit both physically and mentally. 36. In view of the aforesaid, I am unable to accept the contention of the defendants that the testator was not in a condition of health as would enable him to execute the said Will. 37. The other point urged by Mr. Dhruba Ghosh, Ld. Sr. Counsel is that there were suspicious circumstances surrounding the execution of the Will which have not been explained by the propounder. Again this point does not find place in the affidavits filed by either Somnath or Tarun. In my opinion, merely making a bald statement that there are suspicious circumstances surrounding the execution of a Will would not suffice. Particulars must be furnished. It must be indicated with some degree of clarity as to what such suspicious circumstances are. There are no such particulars in the pleadings filed by the defendants and not even a bare statement that the execution of the Will was in suspicious circumstances. Hence, following the principle laid down by the Apex Court in the cases of Union of India vs. Ibrahim Uddin (supra) and Ravinder Singh vs. Janmeja Singh (supra), I am unable to countenance the argument of learned Counsel regarding execution of the Will being surrounded by suspicious circumstances. 38. The propounder was nowhere near the testator when the Will was executed. The propounder did not play any major role in the execution of the Will. He is not a major beneficiary under the Will. The language of the Will is quite clear. The language indicates that the testator was consciously executing the Will and was aware of the manner in which he was bequeathing/devising his properties. His explanation as to why he was bequeathing/devising his property to two of his sons to the exclusion of the other two sons and the daughters displays sufficient clarity of thought and alertness of mind. The language indicates that the testator was consciously executing the Will and was aware of the manner in which he was bequeathing/devising his properties. His explanation as to why he was bequeathing/devising his property to two of his sons to the exclusion of the other two sons and the daughters displays sufficient clarity of thought and alertness of mind. In Bharpur Singh (supra), the Apex Court indicated some examples of suspicious circumstances surrounding the execution of the Will. They are:- "(i) The Signature of the testator may be very shaky and doubtful or not appear to be his usual Signature. (ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time. (iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason. (iv) The dispositions nay not appear to be the result of the testator's free will and mind. (v) The propounder takes a prominent part in the execution of the will. (vi) The testator used to sign blank papers. (vii) The will did not see the light of the day for long. (viii) Incorrect recitals of essential facts." None of these are present in the facts of this case. I do not find anything even remotely suspicious about the execution of the Will. 39. I have considered the evidence adduced by the parties as a whole. As observed by the Apex Court, the totality of the evidence on record will have to be looked into in coming to a conclusion as to whether or not a Will has been duly proved and the requirements of Secs. 61 and 63 of the Indian Succession Act have been complied with. My conscience is more than satisfied that the Will in question is the last Will and testament of Late Sisir Bhattacharjee which he executed voluntarily in sound state of mind and health providing for mainly his specially abled elder son Subol while also making a small bequest to Goutam who he trusted and believed would look after his elder brother Subol. The Will is an eminently rational Will and makes complete sense. The other two sons of the testator never looked after him nor looked after Subol. The Will is an eminently rational Will and makes complete sense. The other two sons of the testator never looked after him nor looked after Subol. The estranged relationship between the testator on the one hand and Somnath and Tarun on the other hand is clear from the evidence on record. 40. Regarding Sudhamoy Goutam's letter dated 19 April, 1985, learned Counsel for the plaintiff submitted that the exhibit is a manufactured document. It is not the original of the letter. It is not a primary document. No case has been made out that the original has been lost. Learned Counsel referred to Ext. 11 which is an application dated 18 March, 2013 made by Somnath under the RTI Act to the Joint Commissioner of Police, Calcutta to supply information regarding receipt of a letter dated 18 April, 1985 written by Sudhamoy Gautam, Advocate to Officer-in-Charge, Tollygunge Police Station, Calcutta in respect of Misc. Appeal No. 387 of 1983 in the Court of 8th Addl. Dist. Judge. Learned Counsel then referred to Ext. 12 which is the reply to Somnath's RTI application wherein it is stated that no such latter of Sudhamoy Goutam could be found in the records of Tollygunge Police Station. I agree with the submission made by Learned Counsel for the propounder. In any event, too much has been sought to be made out of the said alleged letter. Even assuming that Sudhamay Goutam had acted as a lawyer on behalf of the propounder at some point in the past, the same, in my opinion, is of no consequence. No case has been made out by way of proper evidence that Sudhamay Goutam was acting in cahoots with the propounder. 41. In H Venkatachala Iyengar (supra), which both the sides relied on, the Apex Court observed, inter alia, as follows:- "22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkinson, (1946) AIR PC 156 : 50 Cal W N 895 "where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth." It would sound platitudinous to say so, but it is nevertheless true that in covering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect." 42. A certain degree of solemnity attaches to a Will by reason of the fact that it contains the last wish of the testator as to how his properties will devolve upon his departure from this would and also because by the very nature of the document, the testator cannot be called as a witness to prove the Will. In my opinion, it is the solemn duty of the Probate Court to try and give effect to the last desire of the testator unless the same becomes impossible for the reasons discussed above. Of course, the Probate Court is a Court of conscience and unless its conscience is satisfied that a Will has been executed voluntarily by the testator following the requirements of law with full consciousness of mind and without undue influence and without being a victim of fraud, probate will not be granted. Such satisfaction will have to come from the entire conspectus of a particular case as is revealed by the pleadings and evidence on record. The law is not, as I understand, that a Will has to be proved with mathematical precision. 43. Such satisfaction will have to come from the entire conspectus of a particular case as is revealed by the pleadings and evidence on record. The law is not, as I understand, that a Will has to be proved with mathematical precision. 43. I am satisfied that the Will in question was validly executed in accordance with law by Sisir and it is his last Will. Whether by their pleadings or by their evidence, the defendants have not been able to establish that Sisir lacked the mental capacity to execute the Will. On the contrary I am satisfied that Sisir knew exactly what he was doing by executing the Will. The Will was executed without any fraud or undue influence being exercised on him. There were no suspicious circumstances surrounding the execution of the Will. 44. In view of the aforesaid and taking a careful and realistic view of the facts of the case and the evidence on record, I am satisfied that the Will in question should be admitted to probate. Accordingly, there will be an order in terms of prayer (a) of the probate petition i.e., probate of the last Will and testament dated 12 May, 1997 executed by Late Sisir Kumar Bhattacharjee lately residing at 12A, Southern Avenue, Calcutta 700025, be granted to the petitioner as the executor thereof with effect throughout the State of West Bengal. Costs of this proceeding incurred by the plaintiff shall come out of the estate of the deceased. TS 15 of 2009 is accordingly disposed of. 45. Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.