JUDGMENT

Siddhartha Roy Chowdhury, J. - Challenge in this appeal is to the judgement and decree passed by learned 4th Court, Additional District Judge, Alipore, granting probate of the Will of Dilip Kumar Bhattacharjee (since deceased) on 12th April, 2003 in O.S. No. 19 of 2009. Ashim Kumar Bhattacharjee filed an application under Section 276 of Indian Succession Act for grant of probate of the last Will and testament of his father Dilip Kumar Bhattacharjee (herein after referred to as the 'testator') contending, inter alia, that testator Dilip Kumar Bhattacharjee during his life time made a Will which was executed and registered on 20th November, 1992, whereby he bequeathed his properties upon his two sons Ashim Kumar Bhattacharjee, Biman Kumar Bhattacharjee and his daughter Soma Bhattacharjee, to the exclusion of his eldest son Deb Kumar Bhattacharjee, who died sometime in September, 2001. Smt. Moyna Bhattacharjee the widow of Deb Kumar Bhattacharjee, challenged the said testamentary disposition before the Court contending, inter alia, that the Will was not executed by Dilip Kumar Bhattacharjee on his free Will. Dilip Kumar Bhattacharjee during the life time of his first wife Krishna Bhattacharjee married Smt. Gouri Bhattacharjee. Ashim and Biman, two sons of Dilip Kumar Bhattacharjee used to put pressure upon him to make a Will in their favour otherwise they would boycott their father socially and would initiate criminal proceeding against him for bigamy. It is contended by the Caveator that Dilip Kumar Bhattacharjee was very affectionate towards her and she used to take care of her father-in-law whenever he stayed at 100 Rashbehari Avenue. Her father-in-law expressed her helpless condition before the Caveator after the death of her mother-in-law Krishna Bhattacharjee, who died on 9th April, 1990. After her death Dilip Kumar Bhattacharjee started residing at Subhasgram and occasionally he used to come and stay at 100 Rashbehari Avenue. Since 2001, he permanently started residing at Subhasgram and he breathed his last at Peerless Hospital on 19th November, 2006. It is contended further that husband of Caveator, Deb Kumar Bhattacharjee resisted the attempt of his brothers to let out ground and first floor of the house to Andhra Bank and earned their displeasure. Deb Kumar Bhattacharjee became ill in 1998 and died in September, 2001. Dilip Kumar Bhattacharjee had a license to run a ration shop, after his demise the license got lapsed and could not be reissued due to non-co-operation of the surviving sons of Dilip Kumar Bhattacharjee. It is asserted that the Will so propounded is not a genuine document. It is a fraudulent one. Signature on the Will of the alleged testator is also not genuine. Dilip Kumar Bhattacharjee did not execute the Will knowing about its content. The alleged Will is manufactured one. The Caveator prayed for dismissal of the suit.

2. Learned Trial Court after considering the pleadings of the parties framed five issues and after considering evidence-on-record was pleased to answer all the issues in favour of the Propounder of the Will and granted probate of the Will of Dilip Kumar Bhattacharjee executed on 20th November, 1992.

3. Being aggrieved by and dissatisfied with the said judgement the Caveator/defendant has preferred this appeal. Assailing the impugned judgement learned Senior Advocate for the appellant Mr. Milan Chandra Bhattacharjee submits that learned Trial Court did not consider the evidence of witnesses properly and passed erroneous judgement without considering the settled principle of law as pronounced by Hon'ble Supreme Court from time to time. The probate Court being a Court of conscience is under obligation to take into consideration the entire circumstances surrounding the execution of the Will instead of looking for mechanical compliance of Section 63 of the Indian Succession Act or Section 68 of the Evidence Act but learned Trial Court made the voyage ignoring surrounding circumstances. M