JAPAN KUMAR DUTT, J.

(1) Heard the learned Advocate appearing on behalf of the appellant. None has appeared on behalf of the respondents inspite of notice, when this matter was called for hearing.

(2) It appears from the materials on record and the submissions made by the said learned Advocate that one Sri Bhundul Das made an application for grant of probate in respect of the registered WILL and last testament dated 7th April, 1982 executed by one Smt. Bakya Bewa whereby she bequeathed the properties mentioned in the said WILL in favour of the said Sri Bhundul Das and the appellant (Smt. Gunjari Das). Bhundul Das was the eldest son of the testatrix, and Smt. Gunjari Das (appellant) is the widow of the pre-deceased son of the testatrix namely, Rajendra Nath Das. It also appears that in the said WILL it has been stated that after the death of the testatrix the said Sri Bhundul Das and the appellant should obtain probate of the WILL from a proper Court of Law. It further appears that the said Bakya Bewa had another son namely, Sundar Das, who also pre-deceased the said testatrix but the testatrix did not bequeath any property in favour of the heir and legal representatives of Sundar Das under the said WILL. Bhundul Das made an application for grant of probate in respect of the said WILL but he died during the pendency of the proceedings before the Learned Court below and the present appellant was transposed to the category of the applicant for the grant of probate.

(3) The said application for grant of probate was contested by Subal Das, son of late Sundar Das, who happened to be the defendant No.2 in the said proceeding which was converted into a suit being O.S. No. 6 of 1988 before the Learned District Judge, Alipore. The said suit was re-numbered as O.S. No. 7 of 1991 and it was placed for hearing before the learned 11th Additional District Judge, Alipore. It appears that only the defendant No. 2, that is, the aforesaid Subal Das, contested the said proceeding by filing a written statement alleging inter alia that the testatrix had no physical or mental condition to make the said WILL and she had no intention to make such WILL. He further alleged that the testatrix was an illiterate person and could not understand the implication of the said WILL and the said WILL was not executed by the testatrix and the left thumb impression was not given by the testatrix and the said WILL is vitiated by fraud and collusion between the plaintiff and other interested persons. The said defendant No.2 further stated in his written statement that there was a deed of gift in respect of a portion of the property in the suit.

(4) The said suit came up for hearing when evidence was adduced on behalf of the respective parties. There were two witnesses on behalf of the plaintiff in the suit namely, the appellant herein and one Sri Ram Prosad Shaw, an attesting witness. On behalf of the defendant No.2, only the defendant No. 2 himself deposed.

(5) The Learned Court below by the impugned judgment and decree dismissed the said suit. It appears from the impugned judgment that P.W. 1 who is an attesting witness to the said WILL is also a local person and he had a grocery business at 33, Tollygunj Circular Road, Kolkata. The Learned Trial Court dismissed the suit on certain findings. One of such findings was that the said attesting witness (P.W. 1) did not appear to be a truthful witness since he has stated in evidence that preparation, execution and registration of the WILL were all done on the same day but the WILL itself shows that the typing was done on 07.04.1982 and the registration was done on 08.04.1982. Thus, according to the Learned Trial Court, the oral testimony of P.W. 1 contradicted the very WILL (Ext. 3) itself. It is true that from a perusal of the WILL, it appears that the said WILL was prepared on 07.04.1982 and it was registered on 08.04.1982 but it has to be remembered that P.W. 1 came to give evidence in 1994, that is, after a