The main legal point established in the judgment is that the propounder of a Will must prove its execution and remove all suspicious circumstances surrounding the Will. Minor discrepancies in the evidence of the propounder should not be a basis for refusing the grant of probate.

JUDGMENT

Partha Sarathi Chatterjee, J. - This appeal is directed against the judgment dated 19.9.2016 passed by the learned Additional District Judge, Kandi in Testamentary Case no. 01 (A) of 2014 whereby the prayer of the propounder for grant of probate in respect of the Will allegedly executed by the testator, namely, Taponarayan Bandapadhyaya was turned down.

2. Facts required to be adumbrated for the purpose of adjudication of the appeal, in brief, are that one Bandana Bandapadhyaya, wife of Paresh Bandapadhyaya filed one petition under Section 276 of Indian Succession Act, 1923 (hereinafter referred to as the said petition) stating, inter alia, that Taponarayan Bandapadhyaya (hereinafter referred to as the testator) died on 11.12.2010 at his permanent abode located at Ruppur, P.S. Kandi, District-Murshidabad and he executed his last Will and testament on 20.7.2001 in presence of attesting witnesses bequeathing all his estate in favour of his son, Paresh Bandapadhyaya (hereinafter referred to as the legatee) and the present appellant/petitioner, Mrs. Bandapadhyaya, was appointed executor.

3. Record postulates that all the requirements of Section 276 of Indian Succession Act, 1923 (hereinafter referred to as the Act of 1923) were complied with and next kin of the testator were impleaded as opposite parties in the petition. Initially, the aforesaid petition was filed before learned District Delegate and the same was registered as Probate case no. 12 of 2012 but since opposite parties/respondent nos. 1 and 2 herein impeached the Will by filing written objection, the same became contentious and was placed before the learned District Judge, Murshidabad and the same was registered as Testamentary Case no. 01(A) of 2014 and transferred to the Court of the learned Additional District Judge, Kandi for disposal.

4. In the written objection used by the respondent nos. 1 & 2, the crux of their contention was that during his lifetime, the testator had never executed any Will and even the testator had never expressed his intention to execute any Will. The same was prepared behind the back of the testator. The executor did not disclose anything about the Will beforehand and after lapse of a pretty long time, suddenly, the executor took out the Will on an anticipation that the same would be probated basing upon the false evidence of her own men.

5. The respondent nos. 3 and 4 in their written objection had stated that if probate is granted in respect of the subject Will, they would not have any objection.

6. In support of her contention, the petitioner herself deposed as P.W.1 and also adduced oral accounts of two witnesses namely, Barun Mukherjee and Priyabrata Bhattacharya, who were examined as PW-2 and 3 respectively. The petitioner tendered some documents namely, the Will, marked as Ext.-1, L.R. R-O-R of Khatian nos. 517 and 930, marked as Ext. 2 and Ext. 2/1 and copy of deed no. 2328 of 2008 (executed by the testator), marked as Ext.-3.

7. On the other hand, to resist the grant of probate, the respondents adduced oral testimonies of Niti Bhattacharya, Partha Sarathi Das and Ajoy Pradhan, who were examined as O.P.W-1, 2 and 3 respectively. The respondents also submitted some documents being a letter written by the father of respondent no.1, the death certificate and discharge certificate (carbon copy) of the mother of PW-1, which were marked as Ext. A, B & C respectively.

8. By the judgment impugned, the learned Court below refused to grant probate in respect of the subject Will and aggrieved thereby the appellant has approached this Court contending, inter alia, that the learned Court below erred in refusing to grant probate by disbelieving the evidentiary value of the petitioner's deposition. The Court had erroneously shifted burden upon the executor to remove the doubt of undue influence.

Probate had been denied on the ground of minor discrepancies in the evidence of the propounder and taking one portion of the evidence of the propounder in