In cases where the execution of a will is surrounded by suspicion, the onus of proof is on the party setting up the will to offer a cogent and convincing explanation of the suspicious circumstances.

B. N. Maitra, J.

The present application for grant of a probate was filed by one Golak Chandra Bera, who is one of the alleged executors of the will said to have been executed by the deceased, Trailokya. The allegation is that on the 20th October, 1955, he duly executed a will in favour of his relatives in presence of attesting witnesses.

2. The suit was contested by his widow, Golapi, (defendant no.1) and also by one Gitanjali Pramanick, (defendant no. 3), who filed separate written statements. Their defence is almost on similar lines. They allege inter alia that Trailokya did not execute any such will. It was manufactured after his death.

3. The learned Subordinate Judge disbelieved the plaintiff's version and said that the suspicious circumstances had not been removed. The will in question was no conscious act of Trailokya and it was not a genuine document. The prayer was, therefore, refused and the suit dismissed.

4. Hence this appeal by the plaintiff, Golak Chandra.

5 The learned Advocate appearing on behalf of the appellant has stated that the learned Subordinate Judge did not refer to many documentary evidence including the letters, (Ext. 2 series) written by one Bimalananda, son of Trailokya's brother, Baikuotha, and husband of defendant no. 3, Gitanjali. He renounced the world, became an ascetic and used to live in Gauriya Math from before 1955. Consequently, Trailokya thought it porper not to give any portion of his property by the disputed will, (Ext. 1) to Bimalananda or to any member of his family or to his wife, Gitanjali. After becoming an ascetic, he assumed the name of Brajendra Nandan Das. These letters show that though he had renounced the world, he asked for money from his father regularly from before 1955. Even when be was a student of college, he wrote a letter, Ext. 2(1) dated 9.10.1947 to his sister, Asha. That letter clearly shows his bent of mind. The Court will have no hesitation in holding that he was a religious type of man from his student days. Therefore, he left the world, as stated by P.W. 3, Rakhal. and other P.Ws, This has also been stated in the documentary evidence, Ext 3, executed by Golapi on the 15th October, 1966 Of course, the will was executed in 1955, but the present suit filed in 1963, But proper explanation has been given by P.W. 6, Golak executor of the will. He had stated that there was a Bha chas case and thus a search was made by P.W.5, Bibekananda, for Trailokya's documents. After that search, the present will, Ext. 1, was discovered in Baisakh, 1375 B.S. So, delay has been sufficiently explained and all the suspicious circumstances have been removed. Of course, subsequently Trailokya and Golapi purported to take Bimalananda as their adopted son and had also executed a document (Ext.O) on the 8th November, 1957. stating that Bimalananda was their adopted son. But that deed has been declared invalid by the High Court, because Ht the time of the alleged adoption Bimalananda was a married fellow. Gitanjali has no locus standi to contest the suit because Bimalananda is alive and be did not contest the suit.

6. The learned Advocate appearing on behalf of the respondents supported the decision of the learned Subordinate Judge and cited the bench case of Raman v. Shivarani in 67 CWN 715.

7. The first question is whether the surrounding circumstances create suspicion and whether such suspicion has been removed in this case. It will be sufficient to refer to the well-known case of Ramchandra Rambux v. Champabai & Ors., decided by Mudholkar, J, AIR 1965 SC 354, It has been stated that in order to judge if the attesting witnesses are reliable, the Court is not confined only to the way in which the witnesses have deposed or to their demeanour. In order to do the same it is open to the Court to look into the surrounding circumstances as well as the probabilities. The issue, if the testator executed a will and if it was duly executed and attested by the witnesses, cannot be determined by