Subhro Kamal Mukherjee, J.

This is an appeal against judgment and decree dated January 18, 1993, passed by the learned Additional District Judge, Ninth Court at Alipore, district: South 24 Parganas, in Original Suit No. 4 of 1991.

The learned trial judge, by the impugned judgment and decree, dismissed the suit on contest against the contesting defendant no. 5, namely, Dhananjoy Saha, and dismissed ex parte against the defendant nos. 1, 3, 4, 6, 7 and 8 in presence of supporting defendant no. 2, namely, Narayan Chandra Saha.

Initially, the application for grant of probate was filed before the learned District Delegate at Alipore, district: South 24 Parganas, which was registered as Act 39 Case No. 79 of 1990. As the proceeding became contentious, the application was refiled before the learned District Judge at Alipore, district: South 24 Parganas on July 27, 1990. The proceeding was registered, initially, as Original Suit No. 56 of 1990, but, on transfer, before the learned Additional District Judge, Ninth Court at Alipore, district: South 24 Parganas, the suit was re-numbered as Original Suit No. 4 of 1991.

This is a proceeding for grant of probate in respect of the last will and testament dated April 17, 1989 executed by Sasadhar Saha, who died as a bachelor on October 14, 1989.

By and under the said will and testament these appellants were appointed as the joint executors and the said Sasadhar Saha bequeathed all his movable and immovable properties absolutely in favour of these appellants.

According to these propounders the said Sasadhar Saha used to live permanently at the Narkeldanga Railway Quarters being no. 116/A Railway Colony under Police Station Narkeldanga, Kolkata – 700 011 and he was looked after by all the members of the family of Narayan Chandra Saha. The propounders, further stated that, at the time of execution of his last will and testament, the said Sasadhar Saha was in sound mind, memory and judgment and his last will was duly witnessed and attested by the witnesses as required by law.

The said defendant no. 2 in his written statement, filed on July 12, 1991, accepted the contentions of these propounders and, in fact, he deposed in the suit in support of the application for grant of probate.

The only contesting defendant, therefore, was the defendant no. 5. The defendant no. 5 filed his written statement on June 10, 1991. The said defendant no. 5 contended that Sasadhar Saha had no fixed abode. After death of the husband of his sister, Bhagabati Garai, the said Sasadhar Saha used to reside in the house of his sister. The said Sasadhar Saha was residing at his sister’s residence between April 14, 1989 and April 17, 1989, but on April 18, 1989, the said Sasadhar Saha left the residence of his sister for Calcutta. In such circumstances, it was impossible for the said Sasadhar Saha to execute the will on April 17, 1989 as stated by these propounders. According to defendant/respondent no. 5 the said Sasadhar Saha did not live only with the family of Narayan Chandra Saha and was readily available to any of his brothers/sisters at short notice.

Question arose, therefore, as to whether the said Sasadhar Saha executed his last will and testament on April 17, 1989 at No. 116/A, Narkeldanga Railway Quarters.

Further, the defendant no. 5, alleged that the will in question was false and fabricated and such fabrication has been made only to grab the properties left by the said Sasadhar Saha.

On behalf of these propounders 6(six) witnesses were examined. The defendant no. 5 examined himself and 4(four) witnesses in support of the defence case.

The learned trial judge took up the issue as to whether the said Sasadhar Saha did execute the will and whether the said will was attested by the attesting witnesses.

The plaintiffs’ witness no. 1 in the cross-examination stated that he had no knowledge of English and as such Sasadhar Saha read over and explained the contents of the will to him. He, further, stated that