The presumption of due execution and attestation of a Will under S. 90 of the Evidence Act extends to testamentary capacity, and the onus probandi is discharged by proof of execution and capacity.

( 1 ) THE main question for determination in this appeal is the validity of a will executed by one Nalini Sundari Debi, widow of Rai Bahadur Kalachand Moulik, on 24-4-1950 and registered on 13-2-52. After execution and registration of the Will Nelini Sundari died on 5-6-59, leaving four sons, Mukunda-lal, Provat, Sailendra and Ajit as well as a daughter named Kamala. She had two other daughters, Binapani and Renubala, who had died prior to the filing of petition for grant of Letters of Administration by Ajit, the youngest son of Nalini Sundari in the court of the District Delegate, Alipore, on 2-8-79. The plaintiff appellant, Ajit Maulik, filed that petition for grant of Letters of Administration on alleging that he was the specific and universal legatee under the Will.

( 2 ) THE suit in the court below was contested by the respondents 1 and 2, Mukunda and Provat. The defence was that Rai Bahadur Kalachand Maulik, husband of Nalini Sundari, was the sole and absolute owner of all the properties, including the properties mentioned in the Will. Nalini Sundari was only a benamdar. It was alleged that it seemed that Nalini was not aware of the contents of the Will and did not execute the Will, which was not a natural one.

( 3 ) THE appellant examined himself as P. W. 1. P. W. 2 was Sri Suresh Chandra Mukherjee, one of the attesting witnesses of the will. It is in evidence that two other attesting witnesses of the Will, Monmohan Guha Thakurta and Dr. Kaliprosad Chakraborty, are dead. The respondent 1, Mukunda, examined himself as D. W. 1. On a consideration of the evidences of these witnesses and the materials on record, the learned Additional District Judge, Third Court, Alipore, who tried the suit in the court below, dismissed the suit. According to the learned Additional District Judge, the conscience of the court was not satisfied inasmuch as, according to the evidences, Nalini was barely educated without any schooling and as such, could not have appreciated the plan appended with the Will. The absence of near relations of Nalini Sundari during the execution of the Will, the fact of execution of the Will at the house of a professional lawyer, the absence of any independent legal advice at the time of execution of the Will as well as the absence of proof of the plan appended with the Will, were the other circumstances weighing with the learned Judge for dismissing the suit.

( 4 ) MR. Roy Chowdhury, the learned Advocate for the appellant has assailed the finding of the learned Additional District Judge. According to him the Will is to be taken to be duly executed and attested on the basis of the presumption in S. 90 of the Evidence Act and there was no suspicious circumstance attending the execution of the Will, as alleged by the learned Judge. Mr. Dasgupta, the learned Advocate for the contesting respondents, has drawn our attention to the case of Madhusudan Das v. Narayani Bai, AIR 1983 SC 114 and has contended that the appellate court having no advantage like the trial court of observing the manner in which witnesses gave their evidence in the court below, should permit the findings of fact rendered by the trial court to prevail, in the facts and circumstances of this appeal. According to him, S. 90 of the Evidence Act will be of little help to the appellant to remove the suspicious circumstances mentioned by the learned trial Judge, shrouding the execution of the Will.

( 5 ) BEFORE discussing the respective cases of the parties, it is to be stated that when there is a conflict of oral evidence on any matter in issue in any suit and its resolution turns on the credibility of the witness, the general rule, as stated by the Supreme Court in the case of Madhusudan Das v. Narayani Bai, AIR 1983 SC 114 is no doubt that the appellate court should permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular wi