The central legal point established in the judgment is the requirement to prove the testator's sound and disposing state of mind, the execution of the Will in the presence of witnesses, and the removal of suspicious circumstances to satisfy the conscience of the court.

JUDGMENT

Siddhartha Roy Chowdhury, J. - Challenge in this appeal is to the judgement and decree passed by learned Judge, 5th Bench, City Civil Court, Kolkata in O.C. 18 of 2007 on 30th June, 2007. Briefly stated, Smt. Labanya Banerjee, widow of Nipendra Nath Banerjee at the age of 82 executed her last Will on 18th July, 2016 to bequeath her half share in respect of Premises No. 59/2 Raja Rammohan Sarani, P.S. Amherst Street, Kolkata-700009 in favour of Samir Kumar Ghosh, Santanu Ghosh and Shubhrangshu Ghosh. The testatrix had no issue. Dibyendra Nath Banjerjee and Dipyendra Nath Banerjee are the two sons of her brother in-law Manindra Nath Banerjee, since deceased. But the testatrix did not want them to inherit the property. Sri Tapan Mitra was appointed as the executor of the purported Will of the testatrix Labanya Banerjee. Labanya Banerjee died on 14th December, 2006 and the executor Tapan Kumar Mitra filed the petition under Section 286 of the Indian Succession Act seeking grant of probate before the learned Chief Judge, City Civil Court at Calcutta under Act of 39 of 1925. Pursuant to citation, Dibyendra Nath Banerjee entered into appearance and challenged the Will as false and fake instrument and a product of undue influence on importunity.

2. According to Dibyendra Nath Banerjee, Labanya Banerjee on the relevant date was suffering both physically and mentally and she was fallen prey to coercion and undue influence and importunity. It is contended that the Will does not contain any narrative as to why Labanya Benerjee decided to bequeath the said property. The Will was written in English and there was no indication that she was made to understand the content in Bengali as Labanya Banerjee was mentally and physically weak.

3. It is further contended that Tapan Kumar Mitra is the advocate on record representing the beneficiaries, Samir Kumar Ghosh, Santanu Ghosh and Shubhrangshu Ghosh in Title Suit No. 1833 of 200. According to Caveator, alleged Will cannot be considered to be the last testament to Labanya Banerjee.

4. Pursuant to such objection, the Probate proceeding became contentious and was transferred to the Court of learned 10th Judge in the City Civil Court at Calcutta. Learned Trial Court after considering the pleadings of the parties framed following issues :

1. Is the case maintainable in its present form and prayer?

2. Did Labanya execute the Will dated 18th July, 20006?

3. Was Labanya physically fit and mentally sound at the time of execution of Will of the allege Will dated 18th July, 2006?

4. Is the allege Will dated 18th July, 2006 suffering from suspicious circumstances.

5. Is the plaintiff as execute entitled to get probate of Will as prayed for?

5. Learned Trial court was pleased to decide all the issues except issue no. 1 against the Plaintiff/Propounder.

Hence the appeal.

6. Learned Advocate for the appellant Mr. Souradipta Banerjee assailing the impugned judgment argued that learned Trial Court failed to appreciate the evidence properly and arrived at an erroneous finding on misreading of evidence. It is submitted that Labanya had the education to understand English language and she had written letters and authored other documents in English.

7. The execution of the Will by the testatrix Labanya Banerjee has not been challenged by the defendant/respondent Dibyendra Nath Banerjee.

8. Three months prior to her execution of Will, the testatrix executed money receipt of Rs. 50,000/- which demonstrates the soundness of mind of the testatrix. She was contesting a suit for Partition being Title Suit no. 874 of 2005. Even after execution of Will on 18th July, 2006, Labanya executed and registered a Power of Attorney together with the Caveator and his siblings. These activities of the testatrix are sufficient to demonstrate that she was physically fit and mentally alert.

9. Learned Counsel for the appellant further argued that the object of execution of Will is to alter the order of succession which learned Trial Court faile