JUDGMENT 1. The Court : The present suit arose from the probate petition filed by the plaintiff Kumar Shankar Sadhu praying for grant of probate of the purported Will dated 20th March, 1995 allegedly executed by the deceased Edwin Bason alias Edmond Bason who lately resided at the address mentioned in the cause title of the Probate Petition. Probate Petition disclosed that the deceased, an Indian Christian during his lifetime duly made and published his last Will and Testament dated 20th March, 1995 in English language and character. By the said Will the testator appointed the petitioners/plaintiffs as joint executors/executrix. It is the plaintiffs case that the said Will was duly registered by the Registrar of Assurance, Kolkata. According to the plaintiffs, assets those were left behind by the deceased, are within and outside the Ordinary Original Civil Jurisdiction of this Honble Court. 2. It has been disclosed in the Probate Petition that no person or persons have applied for probate of the said Will or for Letters of Administration with copy of Will annexed or for Succession Certificate in respect of the Estate or effects due to the Estate of the said deceased to any Court in the Union of India According to the plaintiffs execution of the said Will is proved by affidavit of Mr. David Elias Nahoum, one of the attesting witnesses affirmed on 10th November, 1995 and also by signature at the foot of the petition. The said affidavit of David Elias Nahoum has also been annexed with the petition. 3. The grant of probate of the said Will was initially opposed and or contested by one Mohammed Shahabuddin and one Ronald Edwin Armstead in their capacity as Joint Executors of an earlier Will of the said deceased made and published on 23th November, 1992. It is not disputed that both the earlier Will and the said Will are registered documents and by the said Will, the earlier Will was expressly revoked. 4. The cause of lodging of caveat and filing of affidavits in support thereof by the aforesaid Ronald Edmond Armstead by himself and Mohammed Shahabuddin, the probate proceeding (PLA no. 6 of 1996) became a contentious cause and was marked as T.S. No. 11 of 2006. 4. The cause of lodging of caveat and filing of affidavits in support thereof by the aforesaid Ronald Edmond Armstead by himself and Mohammed Shahabuddin, the probate proceeding (PLA no. 6 of 1996) became a contentious cause and was marked as T.S. No. 11 of 2006. Mohammed Shahabuddin and Ronald Edwin Armstead also filed an application for grant of probate of the earlier Will of the deceased before the learned District Delegate at Alipore being Act XXXIX case No. 111 of 1996. The said proceeding was subsequently transferred to this Honble Court and has been marked as E.O.P.L.A. No. 1 of 2007. Mohammed Shahabuddin, however, expired and his daughter, Naila Samreen Shahab, the only present contesting defendant made an application for being substituted on the basis of her right as a purported residual legatee in terms of the earlier Will and also by reasons of the fact that the other executor of the earlier Will, Ronald Edmond Armstead, was disinclined to act any further. The addition of the present contesting defendant, Naila Samreen Shahab, was, ultimately, allowed and by an order dated 26th September, 2006 read with order dated 16th November, 2006 and 24th November, 2006 passed by a Coordinate Bench of this Honble Court and records were amended. It is on record that subsequently, other surviving executor of the earlier Will, Ronald Edmond Armstead also expired and his name along with that of Mohammed Shahabuddin, who had earlier expired, was deleted by an order dated 26th March, 2007 by an order of a Coordinate Bench. Present suit has been contested only by the defendant Naila Samreen Shahab, who claims to be beneficiary and residual legatee of the earlier Will. 5. Defendant Naila Samreen Shahab has entered appearance and filed written statement through advocate. Issues were framed by an order dated 14th August, 2006 and those are as follows: 1) Did the testator have testamentary capacity at the time of the making the Will dated 20.03.1995? 2) Was the Will dated 20.03.1995 not executed out of the free will of the Testator, as alleged? 3) Was the Will dated 20.03.1995 obtained by undue influence, force and/or coercion, as alleged? 4) Was the Will dated 20.03.1995 validly executed in accordance with law? 5) Are the plaintiffs entitled to grant of probate of the Will dated 20.03.1995, as prayed for? 6) To what relief, if any, are the plaintiffs entitled? 6. 3) Was the Will dated 20.03.1995 obtained by undue influence, force and/or coercion, as alleged? 4) Was the Will dated 20.03.1995 validly executed in accordance with law? 5) Are the plaintiffs entitled to grant of probate of the Will dated 20.03.1995, as prayed for? 6) To what relief, if any, are the plaintiffs entitled? 6. From the affidavit in support of caveat on behalf of defendant no.3 affirmed on 8th December, 2006 as filed in this proceeding, it appears that the defendant opposed the grant, inter alia , on the following: (i) Edwin Edmond Bason was lying at Harrington Nursing Home as a patient in precarious condition on March 20, 1995 when he could not have any physical or mental capacity to make any disposition whatever and that the said deceased had no capacity to understand the import of his acts and deeds, if there be any. The execution of the Will of Edwin Bason has been denied. (ii) The deceased had no intention to make and publish any such Will as alleged and the reasons in support of the alleged decision of the deceased to cancel his last Will and testament dated 23rd November, 1992 which was duly made, published and registered by the deceased as mentioned in the said Will dated 20th March, 1995 had been inserted at the instance of the plaintiffs and such reasons for cancellation of the alleged last Will dated 23rd November, 1992 are false and imaginary. (iii) The ded had no capacity to sign and execute the purported Will dated 20th March, 1995 and to present the same for registration. It has been denied that the deceased had ever signed and executed the purported Will knowing and realizing the contents thereof. (iv) The deceased was not in a fit condition and capacity to ask the alleged witnesses of the purported Will to attest his alleged signature in the purported Will. (v) The nature of the signatures and initials incorporated in the pages of the said purported Will as the purported initials and signatures of the deceased itself rendered the purported Will to be invalid and ineffective document thereby the same is incapable of being probated. (vi) Although, the testator was well conversant in English language, the purported Will contains an endorsement to the effect that the same was read over and explained to the testator by Mr. (vi) Although, the testator was well conversant in English language, the purported Will contains an endorsement to the effect that the same was read over and explained to the testator by Mr. S.K. Bose, learned Advocate for the petitioners/plaintiffs. The said endorsement shows that the deceased had no capacity to make and execute the purported Will or to understand the contents thereof. 7. Cardinal question requires to be tested in this suit is whether the testator had the testamentary capacity and, if so, whether he had executed the Will out of his own free will and volition without any undue influence, coercion and/or force and whether the Will so executed is legally valid in law. For the sake of convenience and in fact, for the effective decision regarding grant of probate issue no. 4 is to be decided first and thereafter, other issues. Issue no.4 'Was the Will dated 20.03.1995 validly executed in accordance with law? From the record it is borne out that the Will appears to have been executed on 20th March, 1995 at Harrington Nursing Home, Kolkata. According to the plaint case when the Will was executed three attesting witnesses namely, (1) Dr. Asit Sarkar, (2) Mr. David Elias Nahoum, since deceased and (3) Susanta Kumar Bose. The defendant made a pleading in the written statement that the Will in question is not a valid Will nor was it bona fide and genuine. According to them the said Will has been procured by undue influence and coercion at the instance of the plaintiffs. It is the further case of the defendant that the deceased was not in a fit condition and had no capacity to ask the attesting witnesses of the purported Deed to attach their alleged signatures in the purported Will and further that inasmuch as testator was well conversant with English language, there can be no occasion to read over and explain by somebody about the contents of the said Will and such circumstances raises suspicion and nullify the veracity of the execution of the Will by the testator himself. It has been argued by the defendant that the plaintiff has not explained away the suspicious circumstances arising from the above circumstances indicated in the written statement and therefore, the plaintiff has failed to discharge his onus of proof, the genuineness of the Will and under no circumstances the Will can be probated as sought for. Defendant has also made out a case that the testator was about 84 years of age at the time of execution of the Will in question which will be borne out from the Will (Exbt.A) and the defendant was aged about 24 years at the time of execution of the earlier Will in her favour in 1992. The defendant argued that the testator was aged about 84 years has been substantiated from the certificate of death (Exbt.C). it is not denied that the testator was admitted to Harrington Nursing Home, Kolkata on 02.03.1995 and in support thereof the defendant draws attention of this Court to Exbt.D which is a receipt of Nursing Home instead on 12.06.1995 and to that effect the learned counsel relied on the discharge certificate issued by the Nursing Home (Exbt.M). Therefore, according to the defendant the testator was in the nursing home for about 100 days, he was treated there for 82 days after the execution of the alleged Will. Ultimately, the testator died on 06.07.1995 and he relied on a death certificate (Exbt.C) to this effect. Therefore, the claim of the plaintiffs that the testator was of 'sound mental status' is difficult to believe, despite the certificate of doctor (Exbt.H). The defendant disputes the correctness of the deposition of David Elias Nahoum (PW1) in respect of question no. 65 and answered thereto that the testator was in sound mind and his 100% mental alertness becomes doubtful. In elaborating such argument the defendant relied on (A) the discharge certificate issued by the nursing home where it was stated that the testator was admitted with gross infection on both feet and with low general condition. B) Dr. Paes in letter dated 21.03.1995 stated that testator was in very poor condition when he first saw him. (Exbt.I). (C) As per discharge certificate, the infection was, to begin with, both feet eaten up with maggots and auto-amputation of right toe due to gangrene formation. B) Dr. Paes in letter dated 21.03.1995 stated that testator was in very poor condition when he first saw him. (Exbt.I). (C) As per discharge certificate, the infection was, to begin with, both feet eaten up with maggots and auto-amputation of right toe due to gangrene formation. (D) On 5th/6th March, 1995 Mohan Khanna (PW2) found the testator on bed behind the curtain with the foot of the testator tied to the railing of the bed and the leg was bandaged and kept straight (question nos. 31 to 34 of DW2) and on 10.03.1995 found the leg of the testator in the same position and found the testator 'in a stage of semi unconsciousness' (question no.38 of DW2). (E) As per deposition of PW1 and PW2, the alleged execution of the Will by the testator took about two hours, i.e., from 11.30 am to 1.30 pm as would be evident from question nos. 71, 72, 77, 78, 124 & 130 of PW1. As per the deposition of Mr. Susanta Kumar Bose, learned advocate (PW4) the alleged execution was made and completed within half an hour that is to say, from 1.30 pm to 2.00 pm as will be evident from question nos. 195, 196 and 198 of PW4. (F) The Two signatures of the testator on the last page of the alleged Will dated 20th March, 1995 do not at all appear to be the signature of a person having normal physical and mental capacity for execution. (G) Dr. Vace Paes (PW3) stated that he issued a Certificate of fitness (Exbt.H) on the day of alleged execution i.e., on 20th March, 1995 at about 11.00 am to 12.00 Noon and deposed to the effect that the testator was mentally fit and alert with 'full mental capacity' and with 'no other medical problem'. But Dr. Paes also stated that the testator was physically and mentally weak and that when he delivered the certificate to the testator, no one, except the testator, was present. On the other hand as per the deposition of the PW1 and PW2 the deed of trust and Will was executed by the testator on 20.03.1995 during 11.00 am to 1.30 pm, and as per the deposition of PW4 Mr. Susanta Kumar Bose, execution was made during 1.30 pm and 2.00 pm on 20.03.1995 when all the trustees and other witnesses were present. Dr. Susanta Kumar Bose, execution was made during 1.30 pm and 2.00 pm on 20.03.1995 when all the trustees and other witnesses were present. Dr. Paes stated further that on 20.03.1995 he issued the certificate of fitness before the execution of the Will and he also stated that he was not present when the Will was executed. The defendant submitted that this being the testimony of Dr. Paes, the certificate of fitness are unworthy of being relied upon. Based on the submission the defendant submitted that testator was neither physically fit nor mentally alert at the time of alleged execution of the Will dated 20.03.1995. In answering issue no. 4 the plaintiff submitted that it is true that the will was executed on 20th March, 1995 at Harrington Nursing Home, Kolkata and the testator executed the Will in presence of three attesting witnesses. According to the plaintiff the will has been proved by examination of two out of three attesting witnesses, namely, David Elias Nahoum and Mr. Susanta Kumar Bose, advocate. Initially by reasons of requirement of law, the plaintiff had relied on the evidence of David Elias Nahoum, who was examined de benne esse in the suit even prior to the framing of the issues, by reason of his old age and failing health. The said David Elias Nahoum (PW1), who has since expired, was a renowned Confectioner and having some repute deposed before the Court and in his examination-in-chief that he had long association with the deceased and his mother for more than 30 years and had also deposed as to how he had introduced Mr. Susanta Kuma Bose, Advocate to the testator, when he had visited the testator in March, 1995 at Harrington Nursing Home, Kolkata where the testator was admitted on account of infection in leg. It is the plaintiffs positive case that signature on the Will has been proved to the signature of the testator and which was done in his presence and also in the presence of Dr. Asit Sarkar and Mr. Susanta Kumar Bose. It is the plaintiffs positive case that signature on the Will has been proved to the signature of the testator and which was done in his presence and also in the presence of Dr. Asit Sarkar and Mr. Susanta Kumar Bose. The Will has been marked as Exbt.A after such proof and the affidavit of evidence of the attesting witnesses, Davit Elias Nahoum (PW1) was marked Exbt.B. Record reveals that David Elias Nahoum has identified the signature of the testator as also his own signature and has deposed that he was in the room of the nursing home at 6, Ho Chi Minh Sarani, Kolkata where the testator signed first, thereafter, it was first signed by the said witnesses namely David Elias Nahoum and the last signatory was Mr. Susanta Kumar Bose, advocate. It is, significantly noted that in answer to the question put by the Court, David Elias Nahoum confirmed that he had signed the Will in presence of testator. It is also significantly noted that the Will has been admitted into evidence without any objection and has been marked as Exbt.A. The signature of Edwin Edmond Bason @ Edwin Bason had been marked as Exbt. A-1 and also confirmed by the other attesting witness, Mr. Susanta Kumar Bose, advocate (PW4) in answer to question no. 18 of his examination-in-chief held on 12.09.2013. The other attesting witness, Mr. Susanta Kumar Bose (PW4), in answer to question no. 19 to 36 has also identified the other signatures and handwritings of the said deceased being Exbt. A-5 to A-8. From the above circumstances and the discussion as has been made, hardly anything more is required to hold that execution of the Will has not been proved. The Will has been proved by two of the attesting witnesses PW1 and PW4 and the same has been validly made and executed. Therefore, it is held that the Will has been validly executed by the deceased. It is necessary to mention here that PW4 who is an advocate clarified in his deposition that date of registration of the Will was 21st March, 1995 which is borne out from question no.39 of his examination-in-chief held on 12.09.2013. The Will was registered along with a trust deed which was also executed on 20th March, 1995 itself. And both the documents were registered on 21st March, 1995 as will be evident from the deposition in question no. The Will was registered along with a trust deed which was also executed on 20th March, 1995 itself. And both the documents were registered on 21st March, 1995 as will be evident from the deposition in question no. 59 - 61 of his Examination-in-chief held on 12.09.2013. Relying on Bharpur Singh & Ors. -Vs. - Shamsher Singh reported in (2009) 3 SCC 687 , Mr. Ali submitted that a Will must be proved having regard to the provisions contained in Clause (c) of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Evidence Act, 1872 in terms whereof the propounder of a Will must prove its execution by examining one or more attesting witnesses. He submitted that where the Will is surrounded by suspicious circumstances, it would not be treated as the last testamentary deposition of the testator. This proposition is no longer res integra but the conditions laid down under Section 63 of the Succession Act , and amounts of evidence required under Section 68 of the Evidence Act, in my view have been satisfied as per requirement in this case. The said decision cited by Mr. Ali itself says 'Where, however, the validity of the Will is challenged on the ground of fraud, coercion or undue influence, the burden of proof would be on the caveator...' 8. Relying on the decision in H. Venkatachala Iyengar -Vs. - B.N. Thimmajamma and Ors. reported in AIR 1959 SC 443 . Mr. Ali submitted that the propounder must be called upon to show by satisfactory evidence that the Will signed by the testator and that he was in sound state of mind and that he understood the nature and effect of the disposition and put his signature to the document of his own free will . All these conditions, as I have already discussed, have been fulfilled based on the evidence. This judgment has no bearing in the fact situation of the present case. 9. Relying on R.V.E. Venkatachala Gounder -Vs. - Arulmigu Viswesaraswami & V.P. Temple & Anr. reported in (2003) 8 SCC 752 it has been submitted by Mr. Ghosh that when the Will has been marked as Exhibit and Subsequently, execution has been proved by the propounders, burden of proof shifts upon the defendant to prove that the Will is not a genuine one. - Arulmigu Viswesaraswami & V.P. Temple & Anr. reported in (2003) 8 SCC 752 it has been submitted by Mr. Ghosh that when the Will has been marked as Exhibit and Subsequently, execution has been proved by the propounders, burden of proof shifts upon the defendant to prove that the Will is not a genuine one. The decision also lays down a law that any objection to the admissibility of the document if to be made the same should have been made at the time of its admission. 10. Be that as it may it is the settled proposition of law as decided by the Honble Apex Court in R.V.E. Venkatachala Gounder -Vs. - Arulmigu Viswesaraswami & V.P. Temple & Anr. reported in (2003) 8 SCC 752 that the proper time for making objection when the document is admitted into evidence and if no such objection is made and the document is admissible in evidence otherwise, then the defendant forfeits his right to make objection. However, there is no dispute to the proposition that even if a document is admitted into evidence contents thereof has to be proved independently. 11. In this regard it may be apposite to rely on a decision in Javer Chand & Ors. -Vs. - Pukhraj Surana reported in AIR 1961 SC 1655 where the Honble Apex Court held that once a document has been admitted in evidence, it will not be open either to the parties or to the Court itself or to all Court of Appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction. 12. In this case in my view, the plaintiff has been able to prove execution of the Will by the evidence of attesting witnesses. Once execution is proved then the other question whether he had mental capacity or not will come later. Thus issue no 4 is answered in the affirmative and in favour of the plaintiffs. 13. Now, I shall deal with issue no.1 'Did the testator have testamentary capacity at the time of making the Will dated 20.03.1995?' 14. The said Will was executed by the deceased on 20th March, 1995, admittedly at Nursing Home. Thus issue no 4 is answered in the affirmative and in favour of the plaintiffs. 13. Now, I shall deal with issue no.1 'Did the testator have testamentary capacity at the time of making the Will dated 20.03.1995?' 14. The said Will was executed by the deceased on 20th March, 1995, admittedly at Nursing Home. It is important to note that the said deceased was admitted for his treatment of infection in his leg which could otherwise affect his mental faculty, so that he is unable to take any decision after conscious thought. To this end the plaintiffs relied on the certificate of Dr. Paes which was tendered and marked as Exbt.H. the said certificate (Exbt.H.) is also dated 20th March, 1995. The plaintiff also relied on the discharge certificate (Exbt.M) issued by the Nursing Home Authorities. It has been pointed out by the learned counsel for the plaintiff that the discharge certificate itself shows that the patient was well. He drew attention of this Court to the remarks 'patient is now discharged under favourable condition with the following advice' It is the positive case made out by the plaintiff that hospitalization of the deceased was because of his leg infection and that no other syndrome. Therefore, this leg infection can no way be said to be an un-wellness for which the deceased was lacking in his mental capacity to exercise freely for the purpose of execution of the Will in question, nor could the treatment for the foot infection, in any manner, impair his testamentary capacity as alleged by the defendant all throughout. The doctor who issued the certificate is Dr. Vace Paes who in his deposition confirmed the issuance of the certificate dated 20th March, 1995 (Exbt.H). Extensive cross- examination was held and questions were asked to Dr. Vace Paes pertaining to Exbt.H but the witness could not be shaken and I have considered the question nos. 84 to 89 of Dr. Vace Paes in this regard. Since opportunity of cross-examination has been fully utilized by the defendant and nothing could be elucidated from the said witness raising suspicion over the certificate issued by him, it is difficult for this Court to accept submissions made by the defendant that the testator was not mentally so fit that he could execute the Will out of his own volition. 15. 15. It has been submitted on behalf of the plaintiff that it would not only appear that the mental condition of the testator has been duly certified on the said date by a renowned medical practitioner but also there is no contrary evidence in cross-examination of Dr. Vace Paes which would suggest any impairment of the mental or testamentary capacity of the deceased. It is the consistent claim of the plaintiff that the deceased executed the Will on 20th March, 1995 being fully conscious of what he was doing and it would otherwise appear from a series of contemporaneous correspondence, while getting himself treated for his foot infection. Plaintiffs, to this effect relied on Exbt.J which is a letter dated 26th March, 1995 written to the Officer-in- charge Kareya Police Station; Letter dated 22nd March, 1995 (Exbt.R) written by the testator to the three executors and recording the handing over keys of residence in view of admission to nursing home with reference to the registered deed of trust wherein the testator had also appointed three executors as the trustees; letter dated 4th April, 1995 (Exbt.S) authorizing Mr. Vinsent who was also a co-signatory of the bank account of the testator to debit all legal and medical expenses to his account and also authorizing the three trustees who were his power of attorney holders to take legal actions against Mr. and Mrs. Sahabuddin (father and mother of Ms. Naila) and their daughter, Naila for trespass and forcible entry into the premises under his occupation during the period when he was undergoing medical treatment; a suit being Title Suit no. 162 of 1995 was also filed by the testator against the defendant and others for recovery of possession of his residential property which was forcibly occupied and that the plaint was signed by the testator himself (Exbt.BB); letter dated 1st May 1995 (Exbt.O) being a letter written to the Deputy Commissioner of Police recording the fact that he Officer-in-charge, Kareya Police Station had come for an enquiry regarding the property on 27th April, 1995 and the statement disclosed thereat. The said letter is important as the same expressly records the factual background of the association of the testator with Naila; letter dated 9th May 1995 (Exbt.P) written by testator to the Human Rights Commission complaining about how the testator had been illegally dispossessed from his own house by the defendant; letter dated 15th June, 1995 (Exbt.N) whereby the testator complained before the police that though he had been discharged from nursing home on 12th June, 1995, he was unable to return to his own residence as the same had been forcibly occupied by Mr. and Mrs. Sahabuddin and their daughter Naila, who broke into his flat on 4th April, 1995 while he was at nursing home. The above mentioned contemporaneous documents written by the testator to various authorities reveals that the testator was in full control of his mental faculties and was completely aware as to what he was doing keeping in mind of his forceful dispossession by the defendant and her associates taking advantage of the ailing health of the testator. Proper mental capacity of the testator would also appear from the documents relied on by the defendant being the rent receipt dated 6th February, 1995 (Exbt.9) and consent form issued by the Electricity Authority and signed by the testator thereon on 18th February, 1995 (Exbt.12). Defendant has also admitted in her cross-examination (answers to question nos. 450 to 469) that the testator was 'absolutely mobile' and was fit mentally and physically. In this regard question no. 457 of the deposition of Naila Samreen Shahab can be importantly quoted thereafter below 'Q. 457. His mental alertness was?/ He was absolutely fit mentally and physically. He was absolutely mobile and could do whatever he wanted to do.' 16. Through Exbt.B which is an affidavit, Mr. Nahoum has confirmed that the testator was under supervision of Dr. Vace Paes and was of sound mental condition and could comprehend very clearly what was going on. Mr. Nahoum has also further confirmed in his answer to question no. 65 that the testator was in sound mind and was not complaining of anything in the nursing home in view of the fact that the testator had only leg infection. Mr. Nahoum is one of the attesting witnesses in the Will in question. Mr. Nahoum has also further confirmed in his answer to question no. 65 that the testator was in sound mind and was not complaining of anything in the nursing home in view of the fact that the testator had only leg infection. Mr. Nahoum is one of the attesting witnesses in the Will in question. After he made the confirmation that testator was in sound mind and was not complaining of anything in the nursing home because he had nothing more than the only leg infection. In question no. 197 when he suggested that Mr. Bason was physically handicapped and mentally incompetent to understand the Will, he again confirmed that 'he was capable and competent to sign the Will'. This being the deposition and when the witness confirms the position that the testator was of sound mind particularly, when the witness confirms his stand with regard to the suggestion given to him the evidence is valuable and should not be disbelieved unless the defendants are able to prove the contrary by cogent evidence. Although, it was agitated during argument by Mr. Ali that the testator was neither physically fit nor mentally alert at the time of alleged execution of the Will dated 20th March, 1995, taking note of PW1 the first attesting witness who was examined and cross-examined thoroughly, such argument does not hold good. 17. Mr. Ali argued contradictions in the evidence of the PWs but such contradictions, as I have seen, are minor contradictions and not unnatural exposure of the witness. Such minor contradictions, as Mr. Ali pointed out, that the witness are not believable, is difficult to accept because Court always consider the evidentiary value of the witnesses in its totality, not in isolation. The defendants have never thrown any challenge that the signature on the Will is not of the testator but what they have challenged, is about the mental capacity of the testator. If that be so, contrary is required to be proved. It would be very difficult a case to presume that the testator has not executed the Will with conscious mind simply because he was admitted to hospital with leg injury and that he had no mental capacity to execute the Will when the attesting witnesses including a doctor of some repute deposed on box that he certified the testator to be fit and of sound mind to execute the Will. 18. 18. The unimpeachable evidence of the attesting witnesses clearly prove the signature of the testator on the Will and the circumstances under which the Will was executed without being influenced in any manner whatsoever. Thus, issue no.1 is decided in the affirmative and it is held that the testator had requisite testamentary capacity at the time of making the Will dated 20.03.1995. 19. Now I shall decide issue no.2 and 3 together for the sake of convenience. Issue no.2 'Was the Will dated 20.03.1995 not executed out of the free will of the Testator, as alleged?' And issue no.3 'Was the Will dated 20.03.1995 obtained by undue influence, force and/or coercion, as alleged?' 20. These two issues somehow are inter linked with issue no.4 which I have already decided in the affirmative. While answering these issues this Court will also reiterate the discussion already made earlier while answering issue no.4. It has been alleged by the defendants that initials of the testator on the bottom of every page of the Will are comparatively bold and shaky and in blue ink but the two signatures on the right side bottom of the last page of the Will are absolutely feeble and in black ink. According to the defendants those are not at all the normal signatures of the testator. It is alleged by the defendant that three witnesses of the plaintiffs being PWs 1, 2 and 4 stated that deed of trust was executed first and thereafter the Will. PWs 1 and 2 claim that the deed of trust was also registered on 20th March, 1995 within 11.30 am and thereafter, the Will was taken up. According to the defendant if the versions of the four plaintiffs witnesses are taken as per their face value, those are not only contradicting but mutually exclusive and none of them can be accepted as being corroborated. It follows further that even if the contradictory version of the two alleged attesting witnesses examined being PW1 and PW4 are both presumed to be correct it follows that, at the time of the alleged execution of the Will by the testator, at the most one of them was present and the alleged Will was not executed by the testator in presence of two other witnesses. It is agitated by the defendant that PW2 Mr. It is agitated by the defendant that PW2 Mr. Suvra Roy stated that trust deed was executed in presence of all between 11.00 am -11.15 am and further the said witness stated that the deed of trust was executed in presence of Additional Registrar of Assurances and that the plaintiff left the nursing home after execution and registration of the trust deed. It has been further submitted that PW2 stated that she knew, at the time of leaving that the Will would be executed. It has been pointed out that the statements of the attesting witnesses are contradictory to each other and therefore, not believable. As I have already pointed out that it is not expected that all the attesting witnesses have to give a picture identical with each other. These discrepancies are the natural expression of the witnesses rather to put them in doubt. Two of the attesting witnesses adduced evidence to prove the execution and attestation of the Will. There are no discrepancies in such evidence adduced by them. The process of execution and attestation has been described in detail. Will was marked Exhibit in this proceeding without, however, any objection. Both these witnesses were not present during registration. Only S Kumar Bose was present and he gave evidence that the Will and the trust deed were registered on 21st March, 1995. Registered documents always speak for itself as to the date of registration. Oral evidence, however, detailed it is, cannot supersede the documentary proof. That apart to prove a Will its registration has got no impact. 21. The defendant primary attack is that execution of the Will is shrouded by suspicious circumstances. Mr. Ghosh has rightly submitted that there is no specific plea or evidence to substantiate this allegation. This Court has already clarified that it is the requirement of law that the plaintiff has to clear out the doubts from the mind of the Court and from the discussion earlier made it clear that regarding suspicious circumstances the plaintiff has been able to prove that the execution of the Will is genuine. This Court has already clarified that it is the requirement of law that the plaintiff has to clear out the doubts from the mind of the Court and from the discussion earlier made it clear that regarding suspicious circumstances the plaintiff has been able to prove that the execution of the Will is genuine. Now if the defendants make a categorical denial of the signature on the Will by the testator they have to make a specific pleading in that regard and once such plea is taken, burden of proof shall lie upon the defendant to prove that the signatures on the Will are not of the testator but to this effect no steps has been taken, rather the Will has been admitted as an Exhibit without objection. It was submitted by Mr. Ali that it is immaterial whether document has been admitted into evidence or not but the plaintiff, has to prove his case. It is true that the plaintiff has to prove the Will and in my view they have been able to do so. It is not necessary to repeat that the defendants have already admitted signature on the Will by the testator. May be those signatures are feeble but fact remains those signatures on the Will have not been challenged by the defendants to be not the signature of the testator. In such circumstances if we accept those to be the signatures of the testator, it is the duty of the plaintiff to prove that there was no suspicious circumstances in execution of the Will. 22. A person who propounds the Will or produces the Will before the Court and once the Court relies upon the same, has to prove that (i) the Will in question is the legal declaration of the intention of the deceased. (ii) the testator when executed the Will was in a sound and disposing state of mind and (iii) the testator had executed the Will of his own free will, meaning thereby, he was a person free from all sorts of influences when he executed the Will. 23. (ii) the testator when executed the Will was in a sound and disposing state of mind and (iii) the testator had executed the Will of his own free will, meaning thereby, he was a person free from all sorts of influences when he executed the Will. 23. It is intended to give an opportunity to any person even if it is the slightest and even the bare possibility of an interest in the proceedings to challenge the genuineness of the Will and place before the Court all the relevant circumstances before the grant in rem is made in favour of the person claiming the probate. The onus of proof rests squarely upon the person propounds the Will and in the absence of any suspicious circumstances surrounding its execution, the proof of testamentary capacity and testators signatures as required by law would normally suffice in discharging the onus. Where, however, suspicious circumstances are found to exists, propounder of the Will must explain them and dispel all the suspicions to the satisfaction of the Court before it is accepted as genuine. This would be so even in those cases where such a plea has not been raised. In such cases also, it is for the propounder to satisfy the conscience of the Court. However, what are suspicious circumstances must invariably be judged in the facts and circumstances of each particular case. The attending circumstances in the present case does not give rise to any such occasion which can raise any doubt that the Will was not executed by the testator with his free will or without his consciousness. We have already dealt with those circumstances as evident from the evidence adduced by the plaintiffs. 24. The nature of disposition made in the Will has to be considered along with other attending circumstances and to justify as to whether the Will in question is or is not the last will of the testator. The probabilities that find expression from the circumstances attending the execution of the Will are important factors that should be kept in consideration. The Court should have a realistic approach with due record to human conduct and attending circumstances. It cannot be concluded that one single instance or circumstances alone would be sufficient to create suspicion with regard to the execution of the will. The Court should have a realistic approach with due record to human conduct and attending circumstances. It cannot be concluded that one single instance or circumstances alone would be sufficient to create suspicion with regard to the execution of the will. Cumulative effect of the circumstances brought out in evidence must be tested against probabilities and improbabilities in a realistic approach.] 25. The fact that the testator had executed the Will out of his own free volition and without any coercion or undue influence, is evident from the contemporaneous correspondence already referred to earlier in dealing with the previous issues, but also the factual background in which the Will was executed, is to be considered. In his letter dated 1st May 1995 (Exbt.O), the testator clearly indicated that he had met Ms. Naila and her family in June 1992 and it was expressed 'was impressed with her and she too was very much fond of'. It further reveals from the letter that Naila gave the testator an assurance of marriage and promise to stay with him. Though, the testator expressed that he was 'too old to marry her and it was an unequal love'. An expression was also made to the effect 'Love knows no bounds'. 26. Further the documents on record as well as the oral testimony discloses that the defendant, Naila, had represented to the tatstator that she had left for Chichago for leather business which could be apparent from paragraph 6 of the plaint in Title Suit no. 162 of 1995. In cross-examination of the defendant the witness admitted that she did not have any occasion to go to Chichago and tried to explain that though she never entered Chichago she was there in transit while traveling from Dubai to Kolkata. Relevant portion of the cross- examination in question nos. 783 to 790 are reproduced below: 'Q. 783. [shown a document disclosed by the defendant being DD 24 at page 154 of the Judges Brief of Documents] - What is this document about?/This is plaintiffs Title Suit 162 of 1995. Q. 784. Who has filed this suit? /Kumar Shankar Sadhu, Suvra Roy and Wilfred Vincent. Q. 785. Do you find the name Edwin Bason as plaintiff No.1?/As I have said these suits have not been filed by Mr. Bason. Q. 786. (Question repeated)?/Yes, it is written over here. Q. 787. Q. 784. Who has filed this suit? /Kumar Shankar Sadhu, Suvra Roy and Wilfred Vincent. Q. 785. Do you find the name Edwin Bason as plaintiff No.1?/As I have said these suits have not been filed by Mr. Bason. Q. 786. (Question repeated)?/Yes, it is written over here. Q. 787. At the top you will find there are signatures of all the plaintiffs (shown) - Do you find the signature of Mr. Bason?/Yes, I do. But It is not the normal signature of Mr. Bason. Q. 788. This is the document which has been disclosed by the defendant - are you aware of that?/Yes, it has been filed by Kumar Shankar Sadhu, Suvra Roy and Wilfred Vincent. Q. 789. As to whether any written statement has been filed in this suit?/All the procedures took place. Q. 790. Are you aware why this suit was filed?/We had filed TS 157 of 1995 for the declaration of our tenancy right and injunction. They filed the counter suit which is 162/1995 for ousting us.' Similarly, answer to few questions namely questions nos. 799 and 800 are set out below: 'Q. 799. You never left for Chicago, you said, then what was the occasion for inviting Mr. Bason to Chicago when you never resided there?/Because uncle had relatives in England and Chicago. He wanted to come there. It is very easy to go everywhere staying in Dubai. So, I requested him to come Chicago, to visit Chicago at least. Q. 800. Did you ever visit Chicago?/I have not visited inside Chicago. I was on transit. My aunt also stays there. I have my cousins staying there. It will be very easy for Mr. Bason to take the independent visa.' To the question raised by the Honble Court, witness had admitted that she did not go to Chicago. Answer to question nos. 801 to 805 are set out below:- 'Q. 801. Where were you going when you were on transit to Chicago?/ From Dubai to Frankfurt, I was in transit to Chicago. Q. 802. Is it your evidence to go to Dubai you were in transit in Chicago?/I think I was on the way to Dubai. There were some problems in Biman Bangladesh Airlines, for which I had in transit on the way to Chicago. Q. 803. Can you specify from which airport you went to Chicago?/Frankfurt. Q. 804. Q. 802. Is it your evidence to go to Dubai you were in transit in Chicago?/I think I was on the way to Dubai. There were some problems in Biman Bangladesh Airlines, for which I had in transit on the way to Chicago. Q. 803. Can you specify from which airport you went to Chicago?/Frankfurt. Q. 804. So from Frankfurt you went to Chicago and thereafter you went to Dubai?/Yes. Q. 805. I put it to you that your entire evidence is clearly untrue?/I disagree.' 27. Witness tried to explain that while returning from Dubai to Kolkata she witness had to go to Chicago from Frankfurt. On analysis of the evidence falsity comes out from the passport of the witness. 28. Although, record reveals that the defendant never went to Chicago, she was continuously writing to testator giving a false impression that she was in Chicago Exbt.AA and its contents is self evident. Again the answers given by the witness in question nos. 806 to 810 are set out below: 'Q. 806. (Shown third paragraph of ext. AA 'Now summer is approaching in India. If you want to come to Chicago, I will sponsor through my own. You can come here in three months or so. We can go back together') - if you never been in Chicago how did you invite Mr. Bason to come to Chicago staying for months and return together?/ It does not mean that I myself would sponsor him. I myself was not residing there. Q. 807. I am not asking you about sponsoring. How could you promise Mr. Bason to return together if you were not yourself was residing in Chicago?/ As he intended to come Chicago then we could have come back together and could have stayed there. Q. 808. Did you have your independent Visa?/It is very easy to go anywhere in world from Dubai? Q. 809. I am suggesting it to you that you are giving untrue evidence once again?/I was in transit in Chicago. Q. 810. I am suggesting it you that all along you and your family had represented to Mr. Bason that you were in pursuing you business in market and would be back after six month?/ But the letter was written to me. Most of the time I was in Gulf.' 29. Q. 810. I am suggesting it you that all along you and your family had represented to Mr. Bason that you were in pursuing you business in market and would be back after six month?/ But the letter was written to me. Most of the time I was in Gulf.' 29. In cross-examination it was clearly found that the defendant without having gone through Chicago had been falsely suggesting that she was in Chicago and was inviting the testator to come there. That apart passport of the defendant (Exbt.Z) shows that the defendant never went to Chicago and all along she traveled from Kolkata to Dubai and vice versa . It would appear that her such travelling from Dubai to Kolkata and vice versa , was false, as would be evident from the cross-examination in questions nos. 619 to 708. Those questions and answers are set out below:- 'Q. 619. Now subsequent to June 1994 can you recall when you next consulted to Dr. Chakraborty?/I was here till the August. Since I had come to India when I just conceived, I was under the treatment of Dr. Chakraborty till I went to Dubai. Q. 620. You went back to Dubai in late August in 1994?/ Yes. Q. 621. Do you recall when you came back from Dubai in June 1994?/I do not remember. Q. 622. Was it till the first half of June or second half of June, 1994 approximately?/ I have my passport. I can show you that. Q. 623. Dr. Chakraborty treated you till the time of the birth of your child?/ Yes, but in between when I was in Dubai I was being treated by the hospital authorities over there till I came in January. Q. 624. Therefore, I take it to be your evidence that subsequent to August 1994 you came back to India in January 1995, am I right?/ Yes. Q. 625. You have your passport which you can produce before this Court on the next occasion?/ Yes. Q. 626. You have deposed on the last occasion that Mr. Bason was aware of your marriage on 16th April, 1993?/ That day he met to be husband. He knew Zameel on the 2nd of April but prior to that he knew that I am supposed to get married to him. Q. 627. When you were married to be your husband was he present?/ Of course. Bason was aware of your marriage on 16th April, 1993?/ That day he met to be husband. He knew Zameel on the 2nd of April but prior to that he knew that I am supposed to get married to him. Q. 627. When you were married to be your husband was he present?/ Of course. Q. 628. Was there any function on 6th April, 1993?/ No. This meeting was with Mr. Armsteads uncle house because my family members were known to him at that time. Q. 629. What would be your reaction if I say you were supposed to meet Mr. Bason on 6th April, 1993 but excused yourself on the pretext of function?/ There was not any function. Q. 630. I am showing you a bunch of documents being Exbt.10 in the proceeding. Look at the first document being a letter dated 6th April 1993 which according to you has been written by Mr. Bason permitting you to go to function. Can you tell what this function was about?/ This function was on the 7th or 6th. Q. 631. What was the function on the 7th April, 1993?/ That is not my nicah (marriage). Q. 632. What was the difficulty in mentioning the fact that you were having your nicah on 7th April, 1993 to Mr. Bason?/ If he has expressed having nicah (marriage) with me that I do not know. Q. 633. How would you think that this letter of 6th April, 1993 was written by Mr. Bason in respect to a letter written by you?/ I had written a letter. He used to write letters everyday. He knew that I am in a lot of problems regarding my marriage. So, he just said go for function but you send me all those like whatever he wanted. Q. 634. The letter that you write to Mr. Bason is not the partp of Exbt.10, am I right?/ I do not know it is written in the back. Q. 635. Therefore, the reverse of the first page of Exbt.10 is the note which you have written to Mr. Bason, am I right?/ Yes. Q. 636. And in that note you are mentioning about the attending function and not specifying any NIcah?/ Lot of things. It is not written over there. Q. 637. Q. 635. Therefore, the reverse of the first page of Exbt.10 is the note which you have written to Mr. Bason, am I right?/ Yes. Q. 636. And in that note you are mentioning about the attending function and not specifying any NIcah?/ Lot of things. It is not written over there. Q. 637. Now in this correspondence which you have relied upon in there any reference of your marriage or about your husband or about your family life after marriage with Mr.Bason with whom you claimed to be close?/ This was small letters but factually we have been talking everything because my diary was very much against my marriage. Q. 638. After your marriage you went to Dubai sometime in January 1994, am I right?/ Yes. Q. 639. In between your marriage and this period of January 1994 where you are staying?/ Sometimes I used to stay at Karaya Road as well as 27, Syed Amir Ali Avenue. Q. 640. You used to stay at Syed Amir Ali Avenue with your husband?/I was not married at that time. Q. 641. When did you get married?/April 1993. Q. 642. My question to you was that in between your marriage and going to Dubai in January 1994 where did you stay?/I stayed in Keraya Road as Well as 27, Syed Amir Ali Avenue as I do today also. Q. 643. Do you recall that you have already deposed ht you have stayed at night a t 27, Syed Amir Ali Avenue?/I have replied earlier I said there I used to stay at night in Syed Amir Ali Avenue and Karaya Road because I have my brothers small baby whom I was looking after at that time. Q. 644. How would you react, if I say that you had disclosed to Mr. Bason that you were going to Dubai for business purpose?/I had disclosed to Mr. Bason that I had been going to Dubai for business purpose. Initially my husband had to ork and I had nothing to do. My brothers had leather business. An indenture was there since Dubai was a very big international place for business. Q. 645. Did you meet Mr. Bason in June 1994?/Yes. Q. 646. Now on 6th April, 1993 Mr. Bason told you to go for the function and requested you to send something for him. Am I correct?/Yes. Q. 647. My brothers had leather business. An indenture was there since Dubai was a very big international place for business. Q. 645. Did you meet Mr. Bason in June 1994?/Yes. Q. 646. Now on 6th April, 1993 Mr. Bason told you to go for the function and requested you to send something for him. Am I correct?/Yes. Q. 647. This function, according to you, is your Nica. It was not on 6th April, 1993, but on 7th April, 1993?/Yes. Q. 648. Kindly have a look at Ext. 10 once again and, in particular, the letters which, according to you, Mr. Bason had written to you in Dubai. Can you identify the dates of the letters which you received from Mr. Bason in Dubai?/Yes. The date is 15.6.1994. Q. 649. Is there any other letter other than the letter dated 15th June, 1994?/Yes. There is another letter dated 14.9.1994. Q. 650. Other than these two letters, is there any other letter which you supposedly received in Dubai?/I think these are the two letters only. Q. 651. Kindly read the first line of the letter dated 15th June, 1994 being part of Ext. 10./ The first line of the letter dated 15th June, 1994 reads as follows: 'Many thanks for your letter on 4/6 handed to me by your father quite surprise .place as usual.' Q. 652. Kindly take the letter dated 14th September, 1994 being part of Ext. 10. Is the date mentioned in the first line o the letter dated 15th June, 1994 - 4th June or 11th June [Please look at the hand written copy]/I do not know it is 4th or 11th. It may be 11th. I cannot read. Q. 653. Would you agree with me, if it is written 11th June and the writing is clear?/May be. I am not sure about it. Q. 654. How did Mr. Bason send this letter to you in Dubai?/At that time postal system was a very big problem. I think all the letters were gathered by my miss and the same were sent by her through courier. Q. 655. How did you send letters written by you to Mr. Bason?/I used to write letters, receive them at home and then I used to distribute the same through courier people. Q. 656. You used to send letters by ordinary post or by courier. Q. 655. How did you send letters written by you to Mr. Bason?/I used to write letters, receive them at home and then I used to distribute the same through courier people. Q. 656. You used to send letters by ordinary post or by courier. What was the normal time taken by courier for sending letters?/Maximum 1 or 2 days. I do not know how Mr. Bason used to send these letters at that point time. There are two ways of sending letters. One is ordinary post and another is courier. Mr. Bason referred to a letter dated 11th June. Q. 657. Yours is 15th June. Am I correct?/Yes. Q. 658. This letter of 11th June was delivered to Mr. Bason by your father. Am I right?/Yes. Q. 659. Therefore, your father must have received this letter?/My miss received this letter. Q. 660. Therefore, your miss must have received this letter between 11th and 15th June. Am I correct?/Yes. Q. 661. Do you have any of the envelopes or the courier receipts with you pertaining to these letters?/There were many letters together. Which you are referring to I do not know. I have to see that. Q. 662. Therefore, would I be wrong, if I say that you came to India definitely after 15th June, 1994?/I do not remember the exact date. Q. 663. If you are writing the letter of 15th June, 1994 from Dubai, surely you must have been in India at a date thereafter?/Yes. Q. 664. Kindly have a look at page 2 on the reverse of the letter dated 15th June, 1994. Would you read the name of the cassettes which Mr. Bason requested you to bring from Dubai?/Victor Sylvester. Q. 665. What about the second cassette?/I cannot make out. Q. 666. It is in the hand writing of Mr. Bason and you have deposed that you are very much conversant with his hand writing?/Yes. I am. Q. 667. I suppose that you have complied with the request made in this letter? Yes. I did. Q. 668. But you are unable to read the name of the second cassette which Mr. Bason had requested to bring?/At that point of time I was conversant with the hand writing of Mr. Bason. Every time I used to read his letter. But after 15 years I cannot make out his hand writing as on today. Q. 669. Q. 668. But you are unable to read the name of the second cassette which Mr. Bason had requested to bring?/At that point of time I was conversant with the hand writing of Mr. Bason. Every time I used to read his letter. But after 15 years I cannot make out his hand writing as on today. Q. 669. Would you agree with me you were requested to bring the cassette of Ross Canari and, in particular, the line 'I am in the mood for love'?/Yes. Q. 670. Now you are able to read it?/Yes. Q. 671. This is one of the reasons as would appear from this letter?/May be. That is the reason why he requested me. Q. 672. Kindly read the lines in the letter starting with the words 'hoping to see on the plenty of snaps'. Could you read the words after completion of the sentence?/I am reading : 'Hoping to see plenty of snaps to places where you have visited your friends etc. and business.' After that I cannot read. Q. 673. I am suggesting it to you that you had represented to Mr. Bason that you had gone to Dubai for business purpose and was staying at Dubai with your friends?/My uncle had been waiting over here and visited with my friends etc. for business purpose. I had gone with my husband. I was not doing business. I intended to do business. Q. 674. In this letter is there any reference to your husband or the fact that you are married?/ It was necessary. Q. 675. Is it you evidence that Mr. Bason is writing a personal letter to you without reference to your husband or the fact that you are married?/ I do not know it was not necessary because we were always talking over telephone. Q. 676. Did Mr. Bason have a telephone?/ Mr. Bason had no telephone. But Mr. Mahajan, one of the tenants, was living on the first floor of his house. Q. 677. Would you kindly read the first paragraph of the letter, particularly the words 'We will close with love'. What is written thereafter?/ We will close with love and in place uncle Edwin. Q. 678. Are the words 'waiting for your speedy return. Come soon. I want to see you' written in that letter?/ Yes, it is there. Q. 679. Would you kindly read the first paragraph of the letter, particularly the words 'We will close with love'. What is written thereafter?/ We will close with love and in place uncle Edwin. Q. 678. Are the words 'waiting for your speedy return. Come soon. I want to see you' written in that letter?/ Yes, it is there. Q. 679. Could you read the line immediately thereafter?/ 'And waiting for your speedy return. Come soon. I want to see you.' Q. 680. Immediately thereafter what is written?/ 'It will be two years of friendship on 16th June. Remember at my place. There are three pillers at my place from Kanpur. Lots of love to you again. Your loving uncle Edwin.' Q. 681. I am reading the line which you just now read. 'It will be two years of our friendship in 16th June. Remember we met at my place. Correct me if I am wrong?/ Yes. Q. 682. I have read it correctly?/ Yes. Q. 683. Therefore, according to you, Mr. Bason particularly remembered the date when you had first met and was waiting for your return to celebrate the two years for your friendship?/ It was not like that. 30. This was a simple relationship between father and daughter. It was the most respectful relationship that I had with him. Q. 684. Mr. Bason had written letters to the police, to the Human Rights Commission and to other authorities alleging that you had promised him to get married?/ These letters were written from the hospital when uncle was not in sense. These letters had been written by three persons, ie.e. Mr. Vincent, Mr. Sadhu and Mrs. Roy. These letters cannot be written by uncle because uncle very well knew the kind of relationship we had. Q. 685. I am drawing your attention once again to the letters of 15th June, 1994. Would you agree with me that in these letters there is a reference to your well-being. There is a reference to your friends with whom you have gone to visit Dubai. There is no whisper about your husband. Am I right?/ He has not written anything. Q. 686. Kindly take the letter of 14th September, 1994 also being part of Ext. 10. This letter was written by Mr. Bason in acknowledgement of a birthday card sent by you?/ Yes. Q. 687. And the birthday card of Mr. There is no whisper about your husband. Am I right?/ He has not written anything. Q. 686. Kindly take the letter of 14th September, 1994 also being part of Ext. 10. This letter was written by Mr. Bason in acknowledgement of a birthday card sent by you?/ Yes. Q. 687. And the birthday card of Mr. Bason was of 7th September?/ Yes. Q. 688. How did you send this card from Dubai or you had sent it from Calcutta?/ From Dubai. Q. 689. I take it that you have followed the same procedure of courier service by the courier people who in turn delivered the same to Mr. Bason?/ Yes. The practice was always there. These letters were gathered together and the same were sent through courier. Q. 690. In this letter also there is no reference to your husband. Am I correct?/Yes. He had not written anything. Q. 691. Is it not strange that Mr. Bason does not even ask about the well-being of your husband in spite of his knowledge that you are married?/He did not know that we would require these letters. Otherwise he could have written it. Q. 692. You have just now deposed before My Lord that Mr. Bason had written letters from the hospital when he was not in sense. What had happened to Mr. Bason?/He was suffering in the hospital. After that he became worse day by day. He was totally unable. His body movement became gradually slow. What I came to know from my father, uncle Armsteed and Mr. Siraj is that till 19th they visited. Q. 693. Till 19th of which month?/19th March, 1995. Q. 694. So, according to you, your father had visited Mr. Bason on 19th March, 1995. Is that so?/Yes. Q. 695. To Court:- When Mr. Sabyasachi Chowdhury, learned Counsel used the expression 'friendship' and your answer is on record, would you mean by the 'friendship'?/There was nothing wrong in the relationship. Uncle and myself can be the best friends. Q. 696. According to you, father can be a friend of the daughter?/Of course, they are the best friends. Q. 697. Then why you said that there was nothing wrong in the relationship between you and Mr. Bason when he used the expression 'friendship' between you and Mr. Bason?/As there was friendship between me and Mr. Bason, it would not be highlighted right now. Q. 698. Q. 697. Then why you said that there was nothing wrong in the relationship between you and Mr. Bason when he used the expression 'friendship' between you and Mr. Bason?/As there was friendship between me and Mr. Bason, it would not be highlighted right now. Q. 698. On the last occasion I had asked you to produce your passport which would show the exact dates when you were out of the country - have you brought the document?/Yes. (Witness produces the passport). (The passport is tendered and marked as 'Exbt.-Z) (Although the original passport of the witness is tendered and marked as an Exhibit, for the sake of convenience, a photocopy of the same will be kept on record as an Exhibit instead and in place of the original and the original passport will be returned to the witness after obtaining the photocopy of the same in course of the day). Q. 699. From the passport it appears that you left for Dubai on 3 January 1994?/Yes, for the first time. Q. 700. There is a departure from Calcutta on 27 May 1995?/Yes. Q. 701. Did you go to Dubai on 27 May 1995?/Yes. Q. 702. And when did you come back thereafter?/On 12 or 14 July 1995. Q. 703. And again you left for Dubai on 30 August 1995?/Yes, I did. Q. 704. (Shown the passport) Indicate the date in the year 1994 after you left the country on 3rd January - when did you come back?/I left Dubai on 5 July 1994. Q. 705. And on 21 August 1994 you again entered Dubai?/Yes. Q. 706. And from August 1994 for the remaining period of the year 1994 you were in Dubai?/Yes. Q. 707. And you returned to India on 11 January 1995/ Yes. Q. 708. And after your delivery in March 1995 you left again for Dubai sometime in May 1995?/Yes, 20 May 1995.' Similarly is the situation when she was cross-examined and was asked other questions being question nos. 709 to 740 as set out hereafter: Q. 709. (Shown Exbt.4, being a complaint dated 20 April 1995 to the police) You were the author of this letter along with your parents?/ Arstead Uncle was also there, he was the main person. Q. 710. The first signature is of yours?/ Yes. Q. 711. The second signature is of your mother?/ Yes. Q. 712. (Shown Exbt.4, being a complaint dated 20 April 1995 to the police) You were the author of this letter along with your parents?/ Arstead Uncle was also there, he was the main person. Q. 710. The first signature is of yours?/ Yes. Q. 711. The second signature is of your mother?/ Yes. Q. 712. The third signature is of your father?/ Yes. Q. 713. Is there any signature of Mr. Armstead?/ No. Q. 714. Therefore, you would agree with me that you are the author of this letter?/ To speak the truth, uncle Armstead was the one who used to do all these. My parents were not educated enough and I was too young to write all these. Q. 715. Are you or are you not aware of the contents of this letter?/ Of course I am. Q. 716. And you have signed the letter after understanding the contents?/ Yes. Q. 717. Kindly come to paragraph 3 where you find that you have made certain allegations against Subhra Roy, Vincent and Uma Shanakar Sadhu of harassing you all since 2 March 1995?/ That is so. Q. 718. Where were you on 2nd March 1995?/ I was in the hospital. Q. 719. And you were in the hospital since how long in March 1995?/ I was admitted on 1st March 1995 and released and 6 th March 1995. Q. 720. Therefore, at least till 6 March 1995 you did not and could not face any harassment?/ I may not. But I knew everything what was happening. Q. 721. And your knowledge is on the basis of hearing from someone else?/ Yes, from my parents and Armstead uncle. Q. 722. You have just deposed that your parents were not well versed in English and author of this letter was Mr. Armstead?/ Yes. Q. 723. Kindly come to paragraph 4 of this letter - you will find that you have made allegations that these persons were trying to oust you on 17 April and 19 April 1995 - do you stand by this allegation?/ Yes I do. Q. 724. Come to the last line of the first page where you have referred to the illness of your landlord and kindly come to the second page where you have alleged that you had gone to the nursing home to inform the landlord of the 'said facts'?/ Yes. Q. 725. Q. 724. Come to the last line of the first page where you have referred to the illness of your landlord and kindly come to the second page where you have alleged that you had gone to the nursing home to inform the landlord of the 'said facts'?/ Yes. Q. 725. What facts did you want to inform your landlord Mr. Bason?/ We wanted to inform him how these people were harassing us. Right from beginning Sadhu always wanted to take over the flat. Q. 726. So you wanted to inform Mr. Bason after the incident of 17 and 18 April 1995?/ Yes, I also wanted to inform this. Q. 727. When did you go to the hospital or nursing home in April 1995?/ We went there I do not remember the exact date. We were not allowed at all to see uncle. Q. 728. How many times did you go to Harrington Nursing Home?/ First time on 20 March 1995 in the evening. Later on I still kept on going till 27 March 1995, then from 27 March I was not physically well, then again after a few days I used to take intervals and then go. Q. 729. Therefore, you met Mr. Bason on a number of occasions?/ After hospitalization I never met. Q. 730. You just now deposed you went to the nursing home on a number of occasions?/ Yes, of course, but I was never allowed to see uncle. Q. 731. And you never lodged any protest regarding the same?/ I wrote to the nursing home. We were doing everything but we were never allowed to see uncle. Q. 732. When did you write to the nursing home?/ On 30 March 1995. Q. 733. Are you referring to this document (shown a document being Exbt.3)?/ Yes. Q. 734. This is the only letter which, according to you, you had written to Harrington Nursing Home?/ Yes, in writing this is the only letter. Q. 735. What is the proof that the nursing home received the letter?/ They signed on it. Q. 736. Do you know who has signed on it?/ No, I do not know, it was received by the reception. I personally handed over the letter. Q. 737. And the person who signed it struck his signature off?/ I do not know, but he has signed that I know. Q. 738. Q. 736. Do you know who has signed on it?/ No, I do not know, it was received by the reception. I personally handed over the letter. Q. 737. And the person who signed it struck his signature off?/ I do not know, but he has signed that I know. Q. 738. What is the date?/ 3 March 1995. Q. 739. So the letter written on 30 March 1995 has been received on 3 March 1995?/ It was all pre-planned and managed by them. This is the reason. Q. 740. I suggest to you that this letter is a forged and fabricated document which you have subsequently made?/ No. This is the original submitted on 30 March 1995.' 31. In relation to Exbt.3 to 4, her falsity becomes more evident. Evidence on record reveals that the defendant had all along given an impression that the defendant had gone to a foreign country, namely Chichago, USA, to pursue business and would come back and would be with the testator and the testator was not aware of the defendants marriage. It would also appear that for the first time the testator came to know about the marriage of the defendant towards the end of February, 1995. In September, 1994 the defendant was pregnant for about 4 to 5 months and in the letter written by the testator in September, 1994 as is evident from Exbt.10, there is no whisper about either the husband of the defendant or the health of the defendant, particularly, when it is being alleged that the testator was aware of the pregnancy of the defendant. These circumstances clearly depicts a picture that the testator in his own judgment decided to cancel the earlier Will and the will for which probate has been sought for in this suit, is the genuine last will of the testator. Issue nos. 2 and 3 are thus answered in the negative in favour of the plaintiffs and against the defendant. 32. Issue no.5 'Are the plaintiffs entitled to the grant of probate of the Will dated 20.03.1995, as prayed for?' In view of the discussion earlier made there is no scope for the defendant to contend that plaintiffs are not entitled to the grant as prayed for. It is therefore, held that the plaintiffs are entitled to the grant of probate of the will dated 20th March, 1995. 33. It is therefore, held that the plaintiffs are entitled to the grant of probate of the will dated 20th March, 1995. 33. A Will is a most solemn document known to law by which a dead man entrusts to the living for carrying out his wishes, and it is impossible that he may be called either to deny his signature or to explain any circumstances under which it was executed. It is essential that trust-worthy and effective evidence should be presented to establish compliance of law. Section 3 of the Evidence Act shows the meaning of proof to be that the fact meaning thereby here the Will is proved when the Court, after considering the matters before it, either believes it to exists or considers its existence so probable that a prudent man, under the circumstances of a particular case, to act upon the supposition that it exists. It is the settled law that each case has its own fact and has to be determined decided on the facts of that case only. A party who applies for probate or for Letters of Administration with a Will annexed is no doubt required to prove the Will. Such proof is usually furnished by the evidence of persons in whose presence the Will was actually executed or who subscribed their names to the documents, this is to say, all person who saw the testator executing it and, put their own names to the documents as attesting witnesses. Our High Court in Gopalnath -Vs. - Baidyanath reported in AIR 1931 Cal 87 held that where attesting witnesses are produced and they give clear and cogent testimony regarding execution, one should require from strong circumstances to reveal the effect of such testimony. It will not do to talk airily about the circumstances of suspicion. In this case I Have already discussed the evidence of the attesting witnesses the execution of the Will has not been denied by the defendant but what they have disputed is the shaky and feeble signature on the Will and the shakiness and feebleness has been sought to be confused with suspicious circumstances. The attempt so made by the defendant is not permissible under the law although there is no doubt that burden lies upon the propounder to prove the Will. 34. The attempt so made by the defendant is not permissible under the law although there is no doubt that burden lies upon the propounder to prove the Will. 34. The initial onus of proof of the Will is on the propounder of the testament, so that he is bound to satisfy the conscience of the Court that the instrument is the last Will of a free and capable man who executed it. Once execution and attestation is established by the propounder, the onus to prove that the Will was executed under undue influence shifts on the persons who allege undue influences, fraud or coercion by other circumstances or evidence denied by the defendant that the signature is not the genuine one. The defendant in this case nowhere in the written statement pleaded that the signature appearing on the Will is not the signature of the testator. In such circumstances it is difficult to arrive at a conclusion that the propounder has failed to prove execution of the Will by the testator. 35. Issue no.6 'To what relief, if any, are the plaintiffs entitled? It goes without saying that if the Will dated 20th March, 1995 is considered genuine and the last Will of the testator only the same can be probated and no other will if the testator had executed earlier. This Court has already held that the will dated 20th March 1995 is the last will duly and genuinely executed by the testator. Therefore, it can be construed that E.O.P.L.A. no. 01 of 2007 is liable to be dismissed as the same relates to grant of probate of an earlier will which the testator has very consciously revoked and by his last will dated 20th March, 1995 the earlier will has been rendered nugatory. Since this Court has already held that will being the subject matter of T.S. no. 11 of 2006 is genuine; that Will is the last will of the testator; the propounder has been able to prove the same and since it has been held that the propounder is entitled to the grant of probate of the said will dated 20th March, 1995, as prayed for in T.S. No. 11 of 2006. 36. This Court, therefore, directs that Probate of Will and Testament of Edwin Bason alias Edwin Edmond Bason, deceased abovenamed be granted to the plaintiffs with effect throughout the State of West Bengal. 36. This Court, therefore, directs that Probate of Will and Testament of Edwin Bason alias Edwin Edmond Bason, deceased abovenamed be granted to the plaintiffs with effect throughout the State of West Bengal. Urgent Photostat certified copy of this judgment, if applied for, be delivered to the learned counsel for the parties, upon compliance of all usual formalities.