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2024 DIGILAW 450 (CAL)

In the Goods of: Smt. Jayabat Roy v. Minati Roy

2024-02-29

KRISHNA RAO

body2024
JUDGMENT : KRISHNA RAO, J. 1. The plaintiff has initially filed an application for grant of probate of the last Will and Testament of the deceased Jayabati Roy dated 16th October, 2001 being PLA No. 226 of 2011. On receipt of caveat and affidavit in support of caveat, from one Smt. Minati Roy, the application is converted to a Testamentary Suit No. 20 of 2015 (Shri Samarendra Narayan Roy vs. Minati Roy). 2. CASE OF THE PLAINTIFF: (a) Smt. Jayabati Roy, since deceased during the life time had executed her last Will and Testament on 16th October, 2001 which is duly registered on 12th November, 2001 wherein the testatrix has appointed the plaintiff as sole executor of her last Will and Testament. (b) The husband of the testatrix, namely, Sri Kshitindra Narain Roy died on 17th January, 1979, leaving behind the testatrix as his legal heir. The testatrix died on 21st December, 2010 and the testatrix was issueless. After the death of the testatrix, the plaintiff has filed the instant proceeding. (c) As the testatrix and her husband died issueless, the details of the family members of the deceased mentioned in paragraph 8 of the plaint/ PLA application and none of the parties disputes about the family members of the deceased. (d) On receipt of special citation, the defendant namely Minati Roy has filed affidavit in support of caveat and other than the defendant none of the family members have filed any caveat or affidavit in support of caveat. The plaintiff/ executor of the Will is husband’s brother’s son of the testatrix. (e) The deceased abovenamed died leaving behind movable, immovable properties, investment in shares, cash, amount in banks, bank deposits etc., the net value of such assets will not exceed Rs. 52,46,674.72/-. (f) The Plaintiff submits that the deceased had referred to about two of her previous Wills, wherein the first one was dated 10th April, 1984 and the second one was dated 15th April, 1992 and both the previous Wills were revoked upon execution of the this last Will and testament dated 16th October, 2001. (g) The plaintiff submits that Ms. Minati Roy is not the daughter-in-law of the deceased/testatrix but she is the daughter in law of the brother-in-law (husband’s brother) of the deceased/testatrix. (h) In support of the case, the plaintiff has examined three witness namely: (i) Mr. (g) The plaintiff submits that Ms. Minati Roy is not the daughter-in-law of the deceased/testatrix but she is the daughter in law of the brother-in-law (husband’s brother) of the deceased/testatrix. (h) In support of the case, the plaintiff has examined three witness namely: (i) Mr. Prasanta Kumar Sil (One of the attesting witness of the Will) - as PW-1. (ii) Mr. Nemai Charan Ghosh ( Attesting witness of the Will) - as PW-2. (iii) Mr. Samarendra Narayan Roy (Plaintiff/Executor ofthe Will) - as PW-3. (i) During the evidence of the plaintiffs witnesses the following documents were exhibited: (i) Exhibit A: The Will dated 16th October, 2001. (ii) Exhibit A-1 Series: Signature of the testatrix Jayabati Roy. (iii) Exhibit A2: Signature of Mr. Prasanta Kumar. (iv) Exhibit A3: Signature appearing on the Will, of one Mr. Pradip Kumar Sil. (v) Exhibit A-4 Series: Signature of Mr. Nemai Charan Ghosh. (vi) Exhibit B: Original Copy of the death certificate of Jayabati Roy, issued by the Kolkata Municipal Corporation. (vii) Exhibit C: Death Certificate of Nripendra Narayan Roy, son of Surendra Narayan Roy. 3. CASE OF THE DEENDANT: (a) A caveat has been filed by one Ms. Minati Roy, opposing the said probate application filed by the plaintiff. (b) It is submitted by the defendant that the deceased Jayabati Roy, during her life had told her about her last Will and Testament which was executed by her in the year 1992. (c) It is submitted by the defendant that after the death of the husband of Ms. Minati Roy, on 7th October, 2000, she was not allowed to meet with the deceased by the plaintiff/sole executor. (d) It is submitted by defendant that from the records, it is apparent that a Partition and Administration Suit was instituted in the year 1993 by one Nilima Seal and after two years from filing of such partition and administration suit, Smt. Jayabati Roy (deceased) on 13th December, 1995 has made and published a Codicil to the Will of 1992. (e) The defendant while analysing the Will and Codicil dated 15th April, 1992 and 13th December, 1995, respectively, submitted that the deceased bequeathed her entire assets and properties for charitable purpose by constitution a Trust by appointing all the husband’s brother’s legal heirs as Trustees and Shebaits. (e) The defendant while analysing the Will and Codicil dated 15th April, 1992 and 13th December, 1995, respectively, submitted that the deceased bequeathed her entire assets and properties for charitable purpose by constitution a Trust by appointing all the husband’s brother’s legal heirs as Trustees and Shebaits. (f) The defendant submits that the deceased never had the intention to dispose her assets only to a single person, i.e. to Samarendra Narayan Roy, the plaintiff herein and it is pertinent to mention that in the Will dated 15th April, 1992 and the Codocil dated 13th December, 1995 she had stated that “.......That Samarendra Narayan Roy, son Diptendra Narayn Roy will enjoy her room after her demise till the date of partition is not done. However, after the partition is done, Diptendra Narayan Roy shall not have any right over the room.” (g) As per the submissions made by the defendant, the alleged Will dated 16th October, 2001, executed by the deceased is unnatural, since merely a suit being instituted by a relative of the defendant against the testatrix and later on withdrawn cannot be the reason for such drastic change of circumstances for such unnatural bequeath as such suit was not even related to the deceased. (h) The defendant, Minati Roy, has examined herself as DW-1 in support of her case. (i) During the evidence of the defendant one document i.e. Certified copy of terms of settlement filed in Partition and Administration Suit being Suit No. 157 of 2005 is marked as “Exhibit-1.” 4. ISSUES: On the basis of the pleading of the parties, the following issues were framed: (i) Whether the Will dated 16th October, 2001 executed by the deceased testatrix was out of her free will and volition and whether the same is unnatural or not? (ii) Whether or not the signature of the testatrix in the alleged Will is genuine and not surrounded by any suspicious circumstances? (iii) Whether the signature appearing in the Will is manufactured and/or forged in any manner? (iv) Whether the executor is entitled to get probate of the Will dated 16th October, 2001? (v) Whether the testatrix executed the Will after knowing its contents? (vi) Whether the Caveatrix has a caveatable interest in the estate of the deceased? 5. SUBMISSIONS ON BEHALF OF THE PLAINTIFF: (a) Mr. (iv) Whether the executor is entitled to get probate of the Will dated 16th October, 2001? (v) Whether the testatrix executed the Will after knowing its contents? (vi) Whether the Caveatrix has a caveatable interest in the estate of the deceased? 5. SUBMISSIONS ON BEHALF OF THE PLAINTIFF: (a) Mr. Aniruddha Mitra, Learned Advocate representing the plaintiff submitted that Special Citations were served upon all the family members of the deceased testator but only the defendant has filed her caveat and none of the family members have filed any objection for grant of Probate to the plaintiff in terms of the lats Will and Testament dated 16th October, 2001. He submits that one of the attesting witness of the Will namely Shri Prasanta Kumar Sil is the son of the brother of the testatrix. The said witness is examined as PW-1 in the instant case. (b) Mr. Mitra submitted that PW-1 who is the attesting witness has identified the Will and the Will is marked as Exhibit-A and the said witness has also identified the signatures of the testatrix in the said Will and the signatures of the testatrix were marked as Exhibit-A/1 series and the signature of PW-1 in the Will as attesting witness is marked as Exhibit-A/2. He submits that the PW-1 has further stated in his examination in chief that the other two attesting witnesses namely Pradip Kumar Sil and Nemai Charan Ghosh were also present at the time of execution of the Will by the testatrix and both the witnesses have signed in the Will. PW-1 has identified the signatures of the other two attesting witness, namely, Pradip Kumar Sil and Nemai Charan Ghosh and signatures of both the witnesses were marked as Exhibit-A/3 and A/4 respectively. Mr. Mitra submitted that the PW-1 in his evidence has stated that he has accompanied the testatrix to the registration office and on 12th November, 2001, the Will was registered. He also stated that the testatrix died on 21st December, 2010 and he identified the Death Certificate of the testatrix. (c) Mr. Mitra submitted that the PW-2, namely, Nemai Charan Ghosh who is one of the attesting witness of the Will, is also an advocate by profession and in his evidence he has stated that under the instructions of the testatrix, he has drafted the Will and got the same typed. (c) Mr. Mitra submitted that the PW-2, namely, Nemai Charan Ghosh who is one of the attesting witness of the Will, is also an advocate by profession and in his evidence he has stated that under the instructions of the testatrix, he has drafted the Will and got the same typed. He has stated that the testatrix and other two witnesses of the Will signed in his presence in the residence of the testatrix. Mr. Mitra submitted that both the witnesses have deposed that at the time of execution of her last Will and Testament, the testatrix was in a fit state of mind and was physically fit. (d) Mr. Mitra Submitted that the PW-3 is the executor of the Will i.e. the plaintiff of the instant case. He stated that he came to know about the Will after the demise of the testatrix and after her shrad ceremony. Mr. Mitra submits that PW-3 deposed that the two of the attesting witnesses, namely, Prasanta Sil and Pradip Kumar Sil are the nephews of the testatrix have informed about the Will to the plaintiff. (e) Mr. Mitra submitted that in the Will it is mentioned that the testatrix has previously executed two Wills dated 10th April, 1984 and 15th April, 1992 but by executing the present last Will and Testament had revoked the previous two Wills. Mr. Mitra submitted that the plaintiff has proved the will in compliance of Section 63 of the Indian Succession Act, 1925. (f) Mr. Mitra submitted that the caveatrix /defendant in her affidavit in support of caveat pleaded that execution of Will by the testatrix in favour of the plaintiff is unnatural as the total property has been bequeathed to one person only, though the testatrix had love and affection with all members of the family. He submits that the defendant has pleaded that there is existence of suspicious circumstances in execution of the Will as the testatrix was not aware about the disposal of her properties and the signatures appearing in the Will is manufactured and fabricated. The defendant has also pleaded that the testatrix was not in a fit state of mind but the defendant has failed to prove any of the suspicious circumstances as stated in her affidavit. (g) Mr. The defendant has also pleaded that the testatrix was not in a fit state of mind but the defendant has failed to prove any of the suspicious circumstances as stated in her affidavit. (g) Mr. Mitra relied upon the judgment reported in H. Venkatachala Iyengar vs. B.N. Thimmajamma and Others, AIR 1959 SC 443 and submitted 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 satisfactory evidence. (h) Mr. Mitra relied upon the judgment reported in Bharpur Singh and Others vs. Shamsher Singh, (2009) 3 SCC 687 and submitted that where 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. (i) Mr. Mitra relied upon the judgment reported in Mahesh Kumar vs. Vinod Kumar and Others, (2012) 4 SCC 387 and submitted that once the execution of the second Will is held as duly proved, the earlier Will automatically becomes redundant because the second Will represents the last wish of the testator. (j) Mr. Mitra relied upon the judgment reported in Meena Pradhan and Others vs. Kamla Pradhan and Another, 2023 INSC 487 and submitted that apart from the statutory compliance, broadly it has to be proved that (a) the testator signed the Will out of his own free Will, (b) at the time of execution he had a sound state of mind (c) he was aware of the nature and effect thereof and (d) the Will was not executed under any suspicious circumstances. (k) Mr. Mitra submitted that the caveatrix only made an allegation in the affidavit in support of the caveat but has been not able to bring any circumstances either by cross examining the witness of the plaintiff or during her examination to prove the suspicious circumstances. He submits that the plaintiff has proved the Will through the attesting witnesses. 6. SUBMISSIONS OF THE DEFENDANT: (a) Mr. Kuldip Mullick, Learned Advocate representing the defendant submitted that the testatrix lived in a joint family, though separated by kitchen but all material time did puja and other family rituals and gatherings together. He submits that the plaintiff has proved the Will through the attesting witnesses. 6. SUBMISSIONS OF THE DEFENDANT: (a) Mr. Kuldip Mullick, Learned Advocate representing the defendant submitted that the testatrix lived in a joint family, though separated by kitchen but all material time did puja and other family rituals and gatherings together. She spend most of the time together with her husband’s brothers family members as she was issueless and she spent most of her days gossiping, discussing and chatting with her family members. He submits that the testatrix had disclosed to the defendant with regard to the Will executed by her in the year 1992 wherein she had bequeathed the properties to her family members. (b) Mr. Mullick submitted that after the death of the husband of the defendant, the plaintiff never allowed the executrix to have a free conversation or conversation without any prying eyes. He submits that the plaintiff misbehaved with the defendant with the intension that the defendant should not go near to the testatrix or converse with testatrix. (c) Mr. Mullick submitted that it has been alleged by the propounder of the Will that there was a Partition and Administration Suit instituted in the year 1993 by one Smt. Nilima Seal with respect of the property and due to the said change of circumstances, the testatrix has executed this alleged Will but the same is not believable as after filing of the said suit, the testatrix has made Codicil on 13th December, 1995 to the Will of 1992. (d) Mr. Mullick submitted that the testatrix has never discriminate between the genders and the same would reflect from the Will of 1992 wherein the testatrix not only gave authority to female heirs of her husband’s brothers but also act as a Trustee to the Trust which she wanted to create by virtue of the 1992 Will. He submits that in the Will of 1992, the testatrix has bequeathed her entire property and assets for charitable purpose by directing to constitute a Trust and appointing all the husband’s brothers legal heirs as Trustees and Shebaits. He submits that the intension of the testatrix was to preserve and maintain and to do act for the Deity of the house and the Puja and Pala to be performed by the Trustees from the income received from the Estate. (e) Mr. He submits that the intension of the testatrix was to preserve and maintain and to do act for the Deity of the house and the Puja and Pala to be performed by the Trustees from the income received from the Estate. (e) Mr. Mullick submitted that the alleged Will is purely unnatural as the deceased was affectionate towards all of her heirs and devolving all the properties upon the executor without any rhymes and reasons makes the Will unnatural. He submits that bequeath did not reflect her true mind as the deceased had love and affection for all heirs, nephew and niece and the legal heirs. He submits that the plaintiff has not established that there was such abnormal change of circumstances for the testatrix to execute a new Will in the year 2001. He submits that even the registration of the alleged Will is not registered in terms of Sections 58, 59 and 60 of the Registration Act, 1908. (f) Mr. Mullick submitted that the drafting, execution and registration of the alleged Will espouses suspicion. He submits that the PW-2 being the draft man of the alleged Will never knew the testatrix. He submitted that as per the evidence of PW-2, one Ram Prasad Bhattacharya, an Advocate had introduced the testatrix in her residence. Mr. Mullick submitted that PW-2, stated that he along with Ram Prasad Bhattacharya and another gentleman went to the house of the testatrix but he has neither identified the said person nor he knows the name of the said gentleman and as such there is a suspicion that someone has actively participated for execution of the alleged Will but the said fact was not brought before this Court to remove suspicion by leading sufficient and cogent evidence by the plaintiff. (g) Mr. Mullick submitted that there is a doubt whether PW-2 at all met with the testatrix or had drafted the Will as per the instruction of the testatrix. He submits that as to how the testatrix all of a sudden called upon a unknown person to draft the alleged Will when she had her own nephew namely, Pradip Kumar Sil, Advocate and Mr. Samarendra Narayan Roy (executor) as Advocate in her known house. (h) Mr. He submits that as to how the testatrix all of a sudden called upon a unknown person to draft the alleged Will when she had her own nephew namely, Pradip Kumar Sil, Advocate and Mr. Samarendra Narayan Roy (executor) as Advocate in her known house. (h) Mr. Mullick submitted that the propounder and his wife all material time have claimed to be with the testatrix as they used to reside in the next room beside the testatrix but the PW-2 never met anyone from the said joint family. He submits that the date of execution of the Will dated 16th October, 2001 i.e. just prior to the festival of Durga Puja and thus it would not be absurd that in the North Calcutta joint family at around 04.00 P.M. No one was in the house on all the occasions when PW-2 visited the house of the deceased. (i) Mr. Mullick relied upon the judgment reported in Bhagat Ram and Another vs. Suresh and Others, (2003) 12 SCC 35 and submitted that registration of a document does not dispense with the need of proving the execution and attestation of the document which is required by law to be proved in the manner as provided under Section 68 of the Evidence Act and Section 58 of the Registration Act. (j) Mr. Malick relied upon the Judgment reported in Jagdish Prasad Tulshan vs. Yasheel Jain, 2007 SCC Online Cal. 241 and submitted that if the probate Court is satisfied about the prima facie existence of prior Will, the beneficiary or the executor under the prior Will should be permitted to file caveat in the proceedings for grant of Probate of subsequent Will. (k) Mr. Mallick relied upon the judgment reported in Benga Behera and Another vs. Braja Kishore Nanda and Others, (2007) 9 SCC 728 and submitted that existence of suspicious circumstances itself may be held to be sufficient to arrive at a conclusion that execution of the Will has not been duly proved. (l) Mr. Mallick relied upon the judgment reported in Rama Dutta and Others vs. Atanu Dutta, 1998 SCC Online Cal. 253 and submitted that where there is a mystery of suspicion pointing out towards the absence of any of the factors i.e. execution capacity or own volition, the probate Court asks for a clearing up of the mystery and a removal of suspicion. (m) Mr. 253 and submitted that where there is a mystery of suspicion pointing out towards the absence of any of the factors i.e. execution capacity or own volition, the probate Court asks for a clearing up of the mystery and a removal of suspicion. (m) Mr. Mallick relied upon the judgment reported in Niranjan Umeshchandra Joshi vs. Mrudula Jyoti Rao and Others, (2006) 13 SCC 433 and Nirmal Kumar Saha and Another, vs. Dipankar Saha and Others, 2018 SCC Online Cal. 6417 and submitted that burden of proof that the Will has been validly executed and is a genuine document is on the propounder who seeks probate of the Will. He has to prove that the testatrix has signed the Will and that she had put her signature on the Will out of her own free will and having a sound disposition of mind and she understood the nature and effect thereof. (n) Mr. Mullick submitted that plaintiff has not proved the Will and has not cleared the suspicion by adducing cogent evidence. 7. DECISION WITH REASONS: All six issues are inter connected with each other and thus all issues have been taken up together: (a) The plaintiff has examined PW-1, namely, Prasanta Kumar Sil, who is one of the attesting witnesses of the Will dated 16th October, 2001. The said witness during his evidence has identified the Will dated 16th October, 2001 executed by the testatrix and the said Will was marked as Exhibit-A. He has also identified the signatures of the testatrix in the said Will and signatures of the testatrix were marked as Exhibit-A/1 series. The signature of the PW-1 in the Will is marked as Exhibit-A/2. The PW-1 is the husband’s brother son of the testatrix. He has further stated that at the time of execution of the Will by testatrix, his aunt (testatrix), himself, his elder brother and the Advocate of the testatrix, who is also an attesting witness and drafted the Will were present. He has also identified the signature of the Advocate, namely, Nemai Charan Ghosh in the said Will and the signature of the Advocate who had drafted the Will and also one of the attesting witnesses of the Will is marked as Exhibit-A/4 series. He has also identified the signature of the attesting witness, namely, Pradip Kumar Sil who is the brother of the PW-1 is marked as Exhibit-A/3. He has also identified the signature of the attesting witness, namely, Pradip Kumar Sil who is the brother of the PW-1 is marked as Exhibit-A/3. The PW-1 has also stated that on the request of aunt, he had accompanied his aunt on the date of registration of the Will and the Will was registered at Kolkata Registry Office in Government place. He has also stated that at the time of registration of the WILL, PW-1, his aunt and her lawyer were present. PW-1 also stated that the testatrix was physically fit and fine at the time of execution of the Will. He also stated that the mental condition of the testatrix was absolutely normal and healthy. During the cross-examination of the PW-1, he has stated that at that relevant point of time she used to attend all social functions, to visit our house time and again, to do all her choras and cook and all these she used to tell us also. In the cross-examination, he has further stated that the reason is that under the said Will, my aunt as bequeathed everything unto and in favour of the Samarendra Narayan Roy as his son is the only son-in-successor and ultimately it is the said son-in-successor who is going to inherit all the properties that has been bequeathed by my aunt unto and in favour of Samarendra Narayan Roy. In the cross-examination, he has further stated that “I agree she had bequeathed everything to Samarendra Narayan Roy because she used to love him a lot and she was full of praise of Samarendra Narayan Roy which she had expressed in our home also.” Though the Counsel for the defendant has raised several issues regarding suspicion over the execution of the Will by the testatrix in favour of the plaintiff but no such cross-examination is made on the said count. (b) PW-2 is Nemai Charan Ghosh who is also one of the attesting witnesses of the Will as well as drafted the Will as per the instructions of the testatrix. The PW-2 in his evidence, stated that the testatrix was his client and as per the instructions of the testatrix he has prepared the Will. He has identified the signature of the testatrix in the Will in Bangla as well as English language. In his evidence, he has stated that at first Jayabati Roy (testatrix) had signed first then Mr. The PW-2 in his evidence, stated that the testatrix was his client and as per the instructions of the testatrix he has prepared the Will. He has identified the signature of the testatrix in the Will in Bangla as well as English language. In his evidence, he has stated that at first Jayabati Roy (testatrix) had signed first then Mr. Prasanta Kumar Sil, PW-1 has signed as first witness, Pradip Kumar Sil as second witness and as the third witness I have signed. He has further stated that another signature of mine is also appearing in the Will as the Will drafted by me. He has further stated that the Will was executed at the residence of the executrix being Premises No. 268, 2nd Floor, Rabindra Sarani, Kol -700 007 and all together were present at the time of execution of the Will. He has further stated he was introduced to the testatrix by one Advocate, Mr. Ram Prasad Bhattacharya at her residence she expressed her desire to make one Will and she instructed me how to draft the Will and accordingly as per instruction, he has prepared the Will and after her approval, he finally got the Will typed. During the cross-examination, PW-2 has categorically denied the suggestion that he did not even know Samarendra Narayan Roy, the plaintiff herein, during the cross-examination, he has further stated that at first he had drafted the Will and thereafter he finally typed and the Will was executed by the testatrix in his presence and in the presence of two witnesses. (c) PW-3 is Samrendra Narayan Roy who is the plaintiff, propounder of the Will. He has stated that he and his wife jointly and together regularly used to look after the deceased, Jayabati Roy. He has further stated that Minati Roy, the defendant herein cannot legally come under the category of heirs as her husband passed away long back and she is not coming under any category of the succession. He has produced the original Death Certificate of deceased Jayabati Roy and the same is marked as Exhibit-B. He has stated that Jayabati Roy died issueless and as such Minati Roy cannot be the daughter in law of Jayabati Roy. During the cross examination, the PW-3 has stated that by revoking two earlier Wills, the executrix had executed his present Will dated 16th October, 2001. During the cross examination, the PW-3 has stated that by revoking two earlier Wills, the executrix had executed his present Will dated 16th October, 2001. He has also stated that he had no knowledge about the earlier Will. In the cross examination, the following questions were put to the PW-3, being Question Nos. 76 and 77 which reads as follows: “Q. 76. The nephews of the testatrix informed you that the alleged Will was kept in her almirah. Am I correct? Yes, that is so. They told me that the Will was in the almirah and that the testatrix had told her nephews that she was keeping the Will in the almirah. Q. 77. When did you take the Will out of the almirah? The date on which I went and looked for the Will, I found the Will on the same date.” (d) The defendant/caveatrix has examined one witness i.e. the defendant herself. As per the statement of the DW-1, namely, Minati Roy that the testatrix had earlier executed a Will in the year 1992 and after registration of the said Will, the testatrix had informed the defendant that the testatrix had bequeathed whatever she wanted to give everybody. She further stated that she do not believe that the executrix had actually executed another Will in the year 2001 by appointing the plaintiff as sole executor because the executrix has already executed a Will in the year 1992 by bequeathing all of us. (e) As regard why the defendant is not believing about the execution of Will dated 16th October, 2001 wherein the testatrix has bequeathed the total properties to the plaintiff, two specific questions are put to the defendant during her examination in chief at question Nos. 5 & 13 and question No. 14 which reads as follows: “Q. 5. Why are you contesting the grant of probate of this Will of Jayabati Roy on October, 2001? Because I do not believe that Mrs. Roy had actually executed this Will because she left by giving all of us equally in the Will she had executed in 1992. She had made bequests to all of us. Why would she bequeath everything to Samarendra Narayan Roy? If she had desire she would have done it earlier. Q. 13. Because I do not believe that Mrs. Roy had actually executed this Will because she left by giving all of us equally in the Will she had executed in 1992. She had made bequests to all of us. Why would she bequeath everything to Samarendra Narayan Roy? If she had desire she would have done it earlier. Q. 13. You have deposed earlier today that you have challenged the grant of probate of this Will because you thought that Jayabati Roy could not have executed this Will of her own volition would made you think that she did not do so? I feel this way because I have known her from very young age and for many years. If she wanted to make this kind of Will then why would she come back after having registered that Will in 1992 and told me about it. Q. 14. I am drawing your attention to your answer to question No. 5. What made you believe that Mrs. Jayabati Roy had not executed this Will of October, 2001? The reason for my disbelieving is that in the year 1992, when she had executed a Will and got it registered and came home, she told me that she had actually executed a Will and registered the same and had bequeathed to her four sons of the household. When it was told by Samarendra Narayan Roy about a Will that has been executed by Jayabati Roy in October, 2001 she had not told me anything about the said Will. When Jayabati Roy used to come to my room since our rooms are adjacent to one another, Samarendra Narayan Roy used to shout and he used to work about in front of my room and when I used to go to the room of Jayabati Roy since she had a good relationship, Samarendra Narrayan Roy would also go into the room and sit there. Another fact, I want to say is this that had Jayabati Roy executed a Will of 2001 voluntarily out of her own accord then why she did not disclose the same to me because she had told me everything about the Will. Another fact, I want to say is this that had Jayabati Roy executed a Will of 2001 voluntarily out of her own accord then why she did not disclose the same to me because she had told me everything about the Will. She had executed the Will earlier in the year 1992 and had also said to me about the fact of her bequeathing.” (f) The defendant has also stated that since the death of her husband, the plaintiff always used to misbehave with her and was not allowing the testatrix to talk with the defendant. In the cross examination, the defendant has stated that apart from the defendant, the plaintiff is having good relationship with all other family members. In the affidavit in support of caveat, the defendant has claimed that she is the daughter in law of the testatrix but during her examination before this Court, the defendant stated that “I am the deceased brother–in law’s wife. My mother-in-law’s father is Khitindra Narayan Roy and wife of Khitindra Narayan Roy is Jayabati Roy.” (g) As per the case made out by the defendant in the affidavit in support of caveat that the testatrix has executed the alleged Will by bequeathing the total property to the plaintiff is unnatural and the signatures in the Will seems to be not of the testatrix and have been manufactured or forged but the defendant has not proved the said allegation by way of her cogent evidence. The defendant tried to prove that the plaintiff had not allowed the defendant to talk with the testatrix independently after the death of her husband but as per the evidence of the defendant during her cross-examination, she has stated in question No. 97 which reads as follows: “Q. 97. So, I take it that you had unrestricted access to Jayabati Roy through the day? Yes, everybody could meet everyone in the house. So, I take it that you had unrestricted access to Jayabati Roy through the day? Yes, everybody could meet everyone in the house. There was no restriction as such.” (h) The defendant has raised the issue that there is no change of circumstances to execute the Will dated 16th October, 2001, though prior to the said Will the testatrix has executed a Will in the year 1992 wherein the testatrix has bequeathed her properties to all the family members but the defendant has not adduced any cogent evidence to prove that the plaintiff has obtained Will by creating force, coercion or taking advantage of the innocence of the testatrix. (i) Learned Counsel for the defendant has relied upon judgment of Jagdish Prasad Tulshan (D) by LRs. (Supra) and Saroj Agarwalla (Dead) through Legal Representative Abhishek Agarwalla (Supra) with regard to the caveatable interest, this Court finds that the plaintiff has not seriously argued the point of caveatable interest of the defendant. After filing of probate application by the plaintiff, the defendant has filed caveat and affidavit in support of caveat which was accepted by this Court and the plaintiff has not raised objection for acceptance of the affidavit in support of caveat and on receipt of affidavit in support of caveat, the PLA application was converted to the Testamentary Suit. He has relied upon the Will of 1992 but none of the parties have placed the Will of 1992 on record but the plaintiff has not denied the said Will. The Testatrix Jayabati Roy and her husband Kshitindra Narayan Roy were issueless and the defendant is the daughter-in law of one Surendra Narain Roy who is one of the brother-in law of the testatrix and thus this Court hold that the defendant is having caveatable interest in the estate of deceased. The Testatrix Jayabati Roy and her husband Kshitindra Narayan Roy were issueless and the defendant is the daughter-in law of one Surendra Narain Roy who is one of the brother-in law of the testatrix and thus this Court hold that the defendant is having caveatable interest in the estate of deceased. (j) In paragraph 8 of the plaint/PLA application, the plaintiff has disclosed that the deceased died intestate, the estate as per Hindu Succession Act, 1956 would have devolved upon the following persons namely: S. No. Name Address Relation with the decease of (a) Rabindra Narayan Roy alias Robin Roy Son of Late Birendra Narain Roy Jaffaranie/Tajrish Taheri Ave/Mojgan K.H. House No. 6, Tehran, Iran Husband’s Brother’s Son (b) Pritindra Narayan Roy Son of Late Birendra Narain Roy 286, Rabindra Sarani, Kolkata-700007 -Do- (c) Samarendra Narayan Roy Son of Late Birendra Narain Roy -Do- Sole executor, petitioner (d) Lal Behary Dhar Son of Late Jugol Krishor Dhar and Late Smt. Raj Laxmi Dhar 40, Ramdhan Mitra Lane, Kolkata-700004 Husban’s Sister’s son (e) Sanjan Behary Dhar Son of Late Jugol Kishore Dhar and Late Smt. Raj Laxmi Dhar -Do- -Do- (f) Bepin Behary Dhar Son of Late Jugol Krishore Dhar and Late Smt. Raj Laxmi Dhar -Do- -Do- (g) Ashok Kumar Seal Son of Late Gakul Chandra Seal and Late Smt. Ratna Prova Seal 40, Elgin Road, Kolkata-700020 -Do- (h) Brojen Kumar Seal Son of Late Gakul Chandra Seal and late Smt. Ratna Prova Seal -Do- -Do- (i) Smt. Namita Boral Daughter of Late Birendra Narain Roy and Wife of Dr. Tarun Chandra Boral 10/18, Natabar Dutta Row, Kolkata-700012 Husband's brother's daughter (j) Smt. Sunita Seal Daughter of Late Brendra Narain Roy and Wife of Amal Kumar Seal 9A, Jagadish Nath Roy Lane, Kolkata-700006 -Do- (k) Smt. Suprova Dutta Wife of Late Jugal Kishore Dutta and Daughter of late Gakul Chandra Seal and Late Smt. Ratna Prova Seal 21, Najrul Sarani, Haridebpur, Dhalimpara, Kolkata-700104 Husband's Sister's Daughter (l) Smt. Kanak Prova Sinha Wife of Late Sudhansu Sinha and Daughter of Late Gakul Chandra Seal and Late Smt. Ratna Prova Seal 402, Keyatola Lane, Kolkata-700029 -Do- (m) Miss Sneha Prova Seal daughter of Late Gakul Chandra Seal and Late Smt. Ratna Prova Seal 40, Elgin Road, Kolkata-700020 -Do- (n) Miss Chitra Seal Daughter of Late Gakul Chandra Seal and Late Smt. Ratna Prova Seal -Do- -Do- As per record notices to all the above named persons were served but none have filed their caveat or affidavit in support of caveat. Section 63 of the Indian Succession Act, 1925 reads as follows: “63. Execution of unprivileged Wills: Every testator, not being a soldier employed in an expedition or engaged in actual warfare [or an airman so employed or engaged] or a mariner at sea, shall execute his Will according to the following rules: (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 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.” Section 68 of the Indian Evidence Act, 1872 reads as follows: “68. Proof of execution of document required by law to be attested - 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 subject to the process of the Court and capable of giving evidence: Provided 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 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.” (e) In the case of Meena Pradhan and Others, (2023) 9 SCC 734 , the Hon’ble Supreme Court held as follows: “9. A will is an instrument of testamentary disposition of property. It is a legally acknowledged mode of bequeathing a testator's property during his lifetime to be acted upon on his/her death and carries with it an element of sanctity. It speaks from the death of the testator. Since the testator/testatrix, at the time of testing the document for its validity, would not be available for deposing as to the circumstances in which the will came to be executed, stringent requisites for the proof thereof have been statutorily enjoined to rule out the possibility of any manipulation. 10. Relying on H. Venkatachala Iyengar v. B.N. Thimmajamma, 1958 SCC Online SC 31 : 1959 Supp. (1) SCR 426 : AIR 1959 SC 443 (three-Judge Bench), Bhagwan Kaur vs. Kartar Kaur, (1994) 5 SCC 135 (three-Judge Bench), Janki Narayan Bhoir vs. Narayan Namdeo Kadam, (2003) 2 SCC 91 (two-Judge Bench), Yumnam Ongbi Tampha Ibema Devi vs. Yumnam Joykumar Singh, (2009) 4 SCC 780 : (2009) 2 SCC (Civ) 348 (three-Judge Bench) and Shivakumar vs. Sharanabasappa, (2021) 11 SCC 277 (three-Judge Bench), we can deduce/infer the following principles required for proving the validity and execution of the will: 10.1. The court has to consider two aspects : firstly, that the will is executed by the testator, and secondly, that it was the last will executed by him. 10.2. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied. 10.3. The court has to consider two aspects : firstly, that the will is executed by the testator, and secondly, that it was the last will executed by him. 10.2. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied. 10.3. A will is required to fulfil all the formalities required under Section 63 of the Succession Act, that is to say: (a) The testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a will. (b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary. (c) Each of the attesting witnesses must have 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 acknowledgment of such signatures. (d) Each of the attesting witnesses shall sign the will in the presence of the testator, however, the presence of all witnesses at the same time is not required. 10.4. For the purpose of proving the execution of the will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined. 10.5. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of the testator. 10.6. If one attesting witness can prove the execution of the will, the examination of other attesting witnesses can be dispensed with. 10.7. Where one attesting witness examined to prove the will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence. 10.8. Whenever there exists any suspicion as to the execution of the will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator's last will. In such cases, the initial onus on the propounder becomes heavier. 10.9. 10.8. Whenever there exists any suspicion as to the execution of the will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator's last will. In such cases, the initial onus on the propounder becomes heavier. 10.9. The test of judicial conscience has been evolved for dealing with those cases where the execution of the will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the will while acting on his own free will. 10.10. One who alleges fraud, fabrication, undue influence et cetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation. 10.11. Suspicious circumstances must be “real, germane and valid” and not merely “the fantasy of the doubting mind [Shivakumar vs. Sharanabasappa, (2021) 11 SCC 277 ].” Whether a particular feature would qualify as “suspicious” would depend on the facts and circumstances of each case. Any circumstance raising suspicion legitimate in nature would qualify as a suspicious circumstance, for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit, etc. 11. In short, apart from statutory compliance, broadly it has to be proved that: (a) the testator signed the will out of his own free will, (b) at the time of execution he had a sound state of mind, (c) he was aware of the nature and effect thereof and (d) the will was not executed under any suspicious circumstances.” (m) In the present case, the plaintiff has examined two attesting witnesses of the Will i.e. PW-1 and PW-2. The witness no. 2 who is not only the attesting witness of the Will but he had also drafted the Will. The witness no. 2 who is not only the attesting witness of the Will but he had also drafted the Will. In his evidence, he has stated that on instruction of the testatrix he has drafted the Will and finally he typed the Will and thereafter the executrix has executed the Will in his presence as well as in presence of other two witnesses. Both the witnesses have stated that the Will was executed in the house of the testatrix and at the time of execution of the Will, the testatrix was fit state of mind and was physically fit. Thus this Court finds that the plaintiff has duly proved the execution of the Will by the testatrix on 16th October, 2001. (n) As regard the registration of the Will, the PW-1 has stated that the testatrix requested him to accompany the testatrix for registration and he has accompanied the testatrix to the Registration Office and at the time of registration testatrix, the PW-1 and one lawyer were present. Admittedly, the Will is the registered one and the defendant has not produced any contrary evidence that the Will was not registered on the said date. The presence of an Advocate at the Registration Office is proved from the Will as in the back side of the Will signature of one Advocate, namely, Pradip Das is appearing as identifier thus the registration of the Will is also proved. 8. CONCLUSION: Considering the above facts and circumstance, this Court finds that the plaintiff has proved the execution of the Will executed by the testatrix namely Jayabati Roy on 16th October, 2001 and the plaintiff is entitled to get probate in terms of prayer (c) of the plaint/ PLA application. Let probate be granted in terms of prayer (c) of the plaint/PLA application after compliance of all formalities. At the time of grant of probate, the copy of the Will be made as part of the probate. T.S. No. 20 of 2015 (Old No. PLA 226 of 2011) is thus disposed of.