PRABIR KUMAR MAJUMDAR, J.

( 1 ) THIS is an appeal from judgment and decree dated 24/08/1982 passed by a learned single Judge of this Court on an application of the propounder for a probate of the Will dated 29/06/1979 executed by Sushila Bala Saba, mother of the propounder.

( 2 ) BY this judgment and decree the learned Trial Judge granted probate in favour of the propounder to the said Will and testament of Sushila Bala Saha dated 29/06/1979.

( 3 ) THE said Sushila Bala Saha died on 16/03/1980. She executed her last Will and Testament in English language and character on 29/06/1979 wherein she appointed the propounder Smt. Saraswati Mondal, her daughter, as executrix of the said Will and Testament. Under the said Will the executrix left behind her estate in favour of her daughter Smt. Saraswati Mondal, who is the respondent before us. She is the sole legatee under the said Will. On intestacy the properties left behind by the testatrix would have devolved on Sri Sachi Dulal Saha, the only son, who is the appellant before us and Smt. Saraswati Mondal, the propounder and Smt. Lakshmi Pramanik, daughters of the testatrix. On citations being issued, the caveat was entered into by the son of the testatrix Sri Sachi Dulal Saha, the appellant. In the affidavit filed in support of the caveat, the appellant contended that the testatrix during her lifetime was under the sole control and dominance of the propounder. He has also disputed the validity and legality of the Will executed on 29/06/1979. The appellant, by the said affidavit, has also disputed the testamentary capacity of the testatrix, who executed the said Will. The appellant has also taken a point that the property left behind by the testatrix was an undivided half share in the premises No. 5a, Rammohan Saha Lane, Calcutta and according to the terms of settlement filed in another Testamentary Suit No. 8a of 1973 before this Court on 14/09/1973 a decree was passed in the said testamentary suit recording said terms of settlement whereby the testatrix had only life interest and on her death the appellant would become entitled to the said property. Therefore, according to the appellant the testatrix had no power to dispose of the said property by her said Will and testament.

( 4 ) THE following issues were raised and settled at the trial :1. Did Sushila Bala Saha execute a Will on 29-6-79? 2. Did she have testamentary capacity to execute the Will? 3. Was the Will procured by undue influence? 4. To what relief, if any, the propounder is entitled?

( 5 ) THE learned trial Judge has held that the propounder has proved due execution of the said Will and testament dated 29/06/1979 and also proved that the testatrix had the testamentary capacity to make the said Will and testament and was of sound and disposing state of mind. As stated above, the learned Judge granted probate in favour of the propounder as prayed for.

( 6 ) THE learned Advocate appearing for the appellant has submitted that in view of the terms of settlement filed in the said testamentary suit No. 8a of 1973 the testatrix had only the limited interest in the said property, viz. , life interest and after her death the said property would devolve absolutely on the caveator. Therefore, according to the learned Advocate appearing for the appellant, the testatrix was not in a position to dispose of her undivided interest in the property in question being premises No. 5a, Ram Mohan Saha Lane, Calcutta in favour of her daughter, the respondent herein.

( 7 ) IT is alleged that the father of the respondent as also the appellant made a Will in favour of their mother, the testatrix and the testatrix being executrix of the said Will of her husband applied for grant of probate of the said will executed by her husband and by an order dated 14/09/1973 this Court granted probate in favour of the testatrix of the said Will. It was ordered and decreed that the probate of the Will by the husband of the testatrix with a copy of the sa

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