JUDGMENT :

Soumen Sen, J :

1. The appellant is the elder son of the testator. The appeal is arising out of a judgment dated 30th May, 2009 passed by the 5th Court, Addl. District Judge, Burdwan in a probate proceeding.

2. Briefly stated, Ashok Kumar Ta filed an application for grant of probate of a Will dated 4th July, 1983 executed by his father Gourpada Ta in respect of the property described in schedule A to the affidavit. Ashok is a named executor in the Will. Gourpada during his lifetime executed two wills. The first Will was executed on 3rd June, 1964. The said Will was revoked by the later Will dated 4th July, 1983. Ashok is claiming property of this Will.

3. The trial Court allowed the application for grant of probate. The trial Court was satisfied due execution and attestation of the Will by two attesting witnesses. The trial Court was of the view that the two attesting witnesses have proved due execution of the Will. There is no suspicious circumstances surrounding the execution of the Will. In this appeal the appellant has principally raised two issues with regard to the grant of probate in favour of his brother Ashok. The first ground is that the application for grant of probate is barred by law of limitation and secondly, the execution of the will is surrounded by suspicious circumstances.

4. Ms. Sohini Chakraborty, learned Counsel representing the appellant submits that it is an admitted position that on 26th May, 1964 Gourpada executed a Will in which he made equal distribution of assets and properties in favour of his two sons. The said Will was registered on 3rd June, 1964. After almost 19 years on 4th July, 1983 Gourpada alleged to have executed the second Will in which he had bequeathed substantial property in favour of his younger son Ashok. The disposition in favour of Ashok is unnatural. The attesting witnesses are all close persons and known to Ashok. Gourpada at the time of execution of the Will was nonegenerion. He was suffering from diabetes and had suffered framour fracture in and around the time when the Will was executed. He was also having weak vision and was unable to read and write.

5. Ms. Chakraborty submits that one of the attesting witnesses namely, Subhas Chandra Samanta admitted that he was bed ridden at the time of execution of the Will and occasionally he would sit in chair if that were the physical condition of Gourpada then it is unbelievable that he visited the Registry Office and was present at the time of registration of the Will. It is submitted that the scribe of the Will had never come and deposed. The executor, in fact, had clearly stated in his evidence that he would not produce the scribe to prove the Will. The evidence of the attesting witnesses have been placed extensively to show that one of the attesting witnesses who claimed to be a law clerk, Sri Tinkari Gon was known to the executor. Mr. Gourpada claimed to have been present on 4th July, 1983 at Burdwan sub-registrar Office but in his affidavit he never mentioned the fact that the Will was registered on 4th July, 1983 at the said Registry Office. He was completely silent about the registration of the Will.

6. The learned Counsel submitted that considering the frail physical and mental health of the testator one would have expected the executor to produce evidence to show that at the time of execution of the Will his mental faculty was good and he was in a position to decide the disposition he intended to make. The Will would not show that attesting witnesses or the scribe had read over or explained the Will to the testator, instead of a self serving of endorsement of one of the attesting witnesses is appearing towards the middle of the second page of the Will. It is curious that one of the attesting witnesses have made an endorsement to the effect that the testator in the meeting was found to be of good health and with free mind had executed the said Will in presence of the parties mentioned in the said Will. Having regard to t