A Will is valid if it is duly executed in accordance with the requirements of the Indian Succession Act, 1925 and the Indian Evidence Act, 1872, and if the propounder discharges the onus of proving its due execution.

Asim Kumar Ray, J.

The suit was registered on the basis of an order converting the application for probate of a will dated 30-10-1991 allegedly executed by one Smt.Bibhabati Chatterjee @ Bibhabati Chatterjee @ Smt.Bibhabati Devi @ Bibhabati Devi, wife of late Phanindra Chandra Chattopadhyay @ Chatterjee of 62F/1 , Maharaja Tagore Toad, Dhakuria , P.S. Jadavpur , Calcutta-700 031 into a contentions clause. Application was made by the sole executor /propounder Mukul Chandra Chattejeee, younger son of the testratix.

Bibhabati died on 20-10-2004. Her husband predeceased her. She was the mother of two sons and two daughters, namely, Kamal Chandra Chattejee who predeceased her and died in 1991, Mukul Chatterjee, Gita Banerjee and Jyotsna Bhattacharjee. On 26.04.2010 Mukul Chandra Chatterjee filed the probate application annexing the original Will typed in Bengal language and character. Gita Banerjee filed an affidavit giving consent to the grant of probate in favour of the propounder and Jyotsna Banerjee has neither filed any caveat nor oppose the grant of probate. English translation of the vernacular Will has also been field with the application. On presentation of the application special citation was issued for service upon the legal heirs of the testatrix. In response, Arati Chatterjee, wife of the predeceased son of the testratix only lodged caveat on 04.11.2008 and subsequently filed her affidavit in support of the caveat. She questions the genuineness of the ill stating that the testatrix was seriously ill and was suffering from paralysis since 2004. She was under medical treatment. She was not in a position to put signature on any document for long time before her death. She has never executed any will or testament.

In support of their cases propounder Mukul Chandra Chatterjee examined Paresh Nath Dutta, one of the person signing the Will as witnesses and himself and Caveatrix Arati Chatterjee examined herself as her witness. Original Bengali will dated 30-10-1991 of the testratix , death certificate of the testratix, signature of Gita Banerjee, signature of Paresh Nath Dutta, signature of Mukul Chandra Chatterjee, general power of attorney , signatures appearing on power of attorney and a letter dated 25-2-1991 of Gita Banerjee have been marked as exhibit A, ext. B, ext. C, ext. D, ext. E, ext. F, ext. F1 , ext.F2 and ext. G respectively. No other documentary evidence was adduced by the parties.

The suit was taken up for argument. Argument was heard. It was revealed subsequently at the time of writing the judgment that the issues were not framed and recorded. Under that circumstances before proceeding further this Court heard the learned counsels of the parties and on perusal of the pleadings settled, framed and recorded the following issues:

1. Whether the application for grant of probate is maintainable in its present form and in law ?

2. Whether the will was duly executed in accordance with law by the testatrix, since deceased?

3. Whether the caveatrix have made out any case in the affidavit filed by her in support of the caveat lodged by her?

4. Whether the propounder , being the executor of the will is entitled to the reliefs as prayed for ?

All the issues are taken up together to avoid repetition for the sake of brevity and convenience.

Mr. Sailenndra Chatterjee, learned counsel appearing for the caveatrix has contended that testratix never executed any Will or testament as she was not in a position to put signature on any document for long time before her death due to her serious illness and resultant paralysis.

Mr. Dhruba Ghosh, learned counsel appearing for the propounder has contended in support of the prayer for probate. He has contended that the propounder has discharged the onus of proving of due execution of the Will. The Will was registered before the District Sub-Registrar office at Alipore, South 24-Parganas He has submitted that the Will has been duly proved by the witness in accordance with Sec