Delay in presenting a Will for probate does not automatically invalidate the Will, but the court must consider the totality of the circumstances, including the reasons for the delay and any suspicious circumstances.

( 1 ) THIS is an appeal from a decree granting probate.

( 2 ) THE Will was executed by one Gayaram in March 1968 and he expired in April, 1969.

( 3 ) THE two executrices are his two daughters-in-law kalate Devi and Mandadari Devi, wives of Fagulat and Asorfilal.

( 4 ) THE executrices are also the beneficiaries. The Will has disinherited the eldest son Motilal, who is the caveator/appellant. The Will states that Gayaram did not have good relationship with any of his sons and that is the reason of the above bequest.

( 5 ) THE above Caveator alleged that the Will was a product of fraud or undue influence. Also, in arguments, heavy reliance was played upon circumstances which were said to be suspicious. The first and foremost of those is a long gap of nearly 18 years before the Will was presented for probate. The other fact was that Fagulal was an attesting witness. It was also said that by reason of the extreme physical infirmity of Gayaram before his death he did not have proper mental capacity for executing his Will.

( 6 ) ON the part of the propounder it was shown that the Will had been properly attested; one Nani Bhusan Guha, the lawyer, gave evidence stating that the Will was drafted by him on instructions of Gayaram. There is unimpeachable evidence that execution and registration took place on the same date, when Gayaram went from his house at Bentinck Street to the lawyer's chamber at Bagbazar, taking with him a friendly neighbour who was also an attesting witness. After execution the whole party went to the registration office where Gayaram admitted executive and was identified to the Registrar.

( 7 ) THERE is evidence in correspondence that Motilal was living away from Gayaram in the native village and also that there had been some quarrels involving him.

( 8 ) THE very fact of Gayaram's travel to several places at the time of execution, which was thirteen months before his death shows that he was not physically

absolutely infirm. The evidence of Mandadari that Gayaram was mentally quite capable has been accepted by the lower Court and we have no reason to upset that finding.

( 9 ) THE neighbour's evidence also corroborates the good capacity of Gayaram. The long delay in presentation of the Will was sought to be explained away by saying that the application had not been made because of paucity of funds.

( 10 ) MR. Tandon, learned Advocate for the appellant relied upon the case of Mt. Biro reported at AIR 1937 PC 101, where there was a long delay of 22 years in presentation of the Will. it was no doubt regarded as a circumstance requiring explanation.

( 11 ) MR. Banerjee, learned Advocate for the respondents relied on the case of Kalinath Chatterjee reported at (1958) 62 Cal WN 790 : (AIR 1959 Calcutta 81) for the now well settled proposition that there is no period of limitation for applying for probate.

( 12 ) HE also relied on the case of Satya Pal Gopal Das, reported at AIR 1985 SC 500 to show that delay in presentation of the Will and other suspicious circumstances were sufficiently dispelled in that case by the fact that the Will was a registered one.

( 13 ) MR. Tandon also gave us the case of Shashi Kumar Banerjee reported at AIR 1964 SC 529 to demonstrate that suspicious circumstances must always be explained away before Probate can be had from a Court.

( 14 ) IN our opinion, the only point which calls for a decision is the point of long delay. Proof of fraud or undue influence there was none. Execution of the Will stands admitted since an allegation of fraud or undue influence assumes the signature of the testator to the genuine. Also, the registration and other factors shows positively that the testator had actually put his signature.

( 15 ) NO doubt, delay of the length of 18 years or so, has required, and Will hereafter always require, explanation of some sort, depending on the facts and circumstance of each case, before a Will case can succeed by obtaining of a Probate. We are