P. B. MUKHABJI, J.

( 1 ) THIS is an appeal from the judgment and order of P. C. Mallick J. , dismissing the propounder's petition for probate of a holograph will of the testator who outlived the will by about sixteen years, on the ground that the conscience of the Court had not been satisfied.

( 2 ) THE propounder Ajit Chandra Majumdar is the youngest son of the testator Adhar Chandra Majumdar. The testator had four sons, Akhil, Anil (the caveator), Ajit and one Arun who predeceased the testator. The predeceased son left a widow and four children, none of whom is contesting the will. The eldest son Akhil did not fife any affidavit In support of the caveat. The second son Anil, who is a doctor, is the caveator and he filed an affidavit in support of his caveat. Anil alone gave evidence at the trial of this contentious cause. Akhil neither filed any affidavit nor gave any evidence in Court and Anil's evidence in support of his caveat was ordered to be taken as the Written Statement of both Akhil and Anil against Ajit's petition for probate, regarded as the plaint in this contentious cause. The position, therefore, is that of all the four sons of the testator, one is the propounder, the predeceased son's children are not contesting while the other two are opposing the will but even out of them one has kept himself away from the box nor has affirmed any affidavit challenging the will. The dispute, therefore, mainly is between Anil and the propounder Ajit.

( 3 ) THE testator made the will on 8-1-1939. It is a holograph will written entirely by the hand of the testator in firm handwriting and in English. The testator was a retired Government servant and a pensioner. He lived for 16 years after the execution of the will and died on 20-12-1955. The will was attested by four attesting witnesses of whom Gobinda Madhab Chatterji and Devi Prosad Lahiri came to give evidence before the Court. The disposition in the Will which has provoked this opposition is due to the fact that the testator left the most valuable, if not the only substantial property of his estate to the youngest son Ajit only depriving others. This property is a house in Calcutta at 17f. Nalin Sarkar Street. Out of the total valuation of the assets of the testator at about Rs. 44,915/-this house alone is valued at about Rs. 44,060/ -.

( 4 ) ON behalf of the caveator, the Will is challenged on the ground of undue influence and coercion. It is said that the propounder Ajit is a bully who used to threaten the testator and who had a complete hold upon his father. It is also alleged against the propounder that he was of criminal disposition and rough. Incidentally, Ajit is a businessman who runs an electrical shop by the name of Central Electrical Works. It is said by the caveator that Ajit procured the Will. The Will is also challenged as unnatural and as containing an unjust disposition by the testator. The case of the cavetor is that the father was equally affectionate towards all the sons and there was no reason why he should give almost all his properties only to one depriving the others.

( 5 ) THE learned trial Judge has found that the Will was duly executed by the testator. He has also found that it was duly attested. He holds than the Will was executed at Puri. But the learned trial Judge refused probate of the Will on the ground that the propounder Ajit exercised undue influence and procured the Will and that the Will was not the Will of the testator as a free agent.

( 6 ) NOW, the case for undue influence, coercion and threat as pleaded in the affidavit in support of the caveat contains no particulars of such undue influence, coercion and threat. What is worse, the trial was allowed to proceed without even framing any issue at all on undue influence.

( 7 ) THE result, therefore, is that we have to gather the case of undue influence from the evidence given at large and appreciation of it in the judgment under appeal, (After discussing evidence His Lordship proc

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