The burden of proof lies on the person propounding the Will to prove affirmatively that the testator was of sound mind at the date of execution and further that he knew and approved the contents thereof.

( 1 ) THIS appeal is preferred by the plaintiff appellant against a judgment and decree of the Trial Court refusing grant of probate briefly in the circumstances as follows:

( 2 ) THE appellant made an application in the Court of the District Judge, Malda for grant of probate of a Will of one Rajes-wari Debya. The case set up by the appellant briefly was that Rajeswari Debya died on or about 29th December, 1956, at the residence of her daughter Sushamabala Debya at Khaskhole in the district of Malda leaving considerable amount of the immovable properties described in the Affidavit of Assets as also her near relations namely two daughters -- Sushamabala and Nirupama and their several sons and daughters. The Will was duly executed on 16th Agrahayan 1363, B. S. corresponding to 2nd December, 1956. The testatrix at the time of her death, it is alleged, had a fixed place of abode at Khaskhole. The appellant a son of Sushama was appointed executor in the Will and there being no other application for probate or for letters of administration, he was entitled to the grant of probate of the Will.

( 3 ) THE proceeding on the objection by the other daughter Nirupama of the testatrix appeared as a contentious cause and in the written statement filed by her, apart from the general denial of all allegations made in the application, it was alleged that the Will was set up as a counter-blast to the partition suit already filed by her after the death of Rajeswari Debya who lost her mental balance long before the date of execution of the Will. She had no sound disposing mind and was completely under the control of Sushama and her sons and daughters and Sushama's son-in-law Byomkesh Pandey, all of whom conspired to grab her entire properties and thus to deprive Nirupama of her legitimate share of the properties left by her mother. As Billeswar, it is further alleged, was most intelligent and shrewd person amongst Sushama's sons, he has been set up as an executor in the Will and has now made an application on entirely false and frivolous allegations for grant of probate of the Will.

( 4 ) UPON these pleadings two issues were framed, first, as to whether the will was duly executed and attested and secondly whether the testatrix had testamentary capacity to execute the Will. The propoun-der examined 9 witnesses including himself and two witnesses were examined on behalf of the first respondent. Learned Court below on the basis of a copy of the Will as the original was lost to which we shall come presently, found on evidence that the Will was neither duly executed and attested nor the testatrix had the testamentary capacity to execute the Will and accordingly dismissed the application for probate. That is how in short the appellant being aggrieved has preferred the present appeal.

( 5 ) THE most unfortunate and no less serious part of the matter in this case is that the original Will which was unregistered was lost or mislaid under strange circumstances. At the instance of the appellant, the learned District Judge, it appears, sent for the examination of the thumb impression of the testatrix, though the genuineness of the thumb impression was not in issue specifically, to the Anderson House at Alipore District 24-Parganas for the opinion of the Government Finger Print Expert. Along with the Will a power of Attorney admittedly executed by Rajeswari in favour of husband of her second daughter Nirupama and since cancelled was sent for comparison. Thereafter as appears from the Order No. 66 passed on 3-2-62, 9 days after the receipt of the acknowledgment of the cover containing the Will and the Power of Attorney, the Deputy Inspector General of Police, C. I. D. by his letter dated 1-12-61 informed the learned District Judge "that the disputed Will in 3 sheets in a sealed cover does not appear to have been received. Only 4 sheets of Ammukhtearnama have been received in a registered cover. " Thereupon a preliminary inquiry was held by t