JUDGMENT :

Sugato Majumdar, J.

1. The instant application is filed praying for grant of probate of the last will and testament dated 24th December 1987, of the testator Akhilesh Sinha, since deceased.

2. The testator, prior to his death, was resident of FD-347, Salt Lake City, Kolkata – 700091. He executed his last will and testament on 24th December, 1987 in English language and character limited to the property mentioned therein. The testator appointed Sri Sant Agarwal and failing him Sri Mahabir Prasad Agarwal as executor of the Will. The testator, at the time of death, left behind his widow, two daughters and one son. The Will was attested by two witnesses. A declaration of one of the attesting witnesses is annexed to the prresent application for probate. Affidavit of assets is also filed along with the application.

3. After filing of the application, citations were issued to the near relatives of the testator. The answering Defendant being the son of the testator contested the probate application. In the affidavit in support of caveat, which is treated as a written statement, execution of the Will is seriously challenged. Contentions of the answering Defendant are that firstly, the purported Will is unnatural one as no prudent man would bequeath properties to the outsiders, more so when he had no transferable right title and interest in respect of the said property. Secondly, it is stated that signatures of the testator were obtained on a blank paper to create a Will. This is also manifest from the fact that signatures of the testator appearing on the bottom of the pages are unusual. Thirdly, it does not appear from the Will under whose instructions it was drafted or who actually drafted the Will. Fourthly, the signatures of the testator on the Will was obtained by practising fraud upon him by the present Executor of the Will. Fifthly, it is stated that the testator was not aware of the contents of the Will, for, there is no reason why the testator should bequeath his property or any right title interest in favour of outsiders of the family depriving his natural heirs and successors. Sixthly, it is contended that the Will contains unnatural disposition of property, vitiated with fraud. It is further evidenced by the fact that during lifetime of the wife of the testator, no application for probate was filed as the testator had no absolute right to dispose of property by the Will. In nutshell, the written statement seriously challenged the Will and contended that probate should not be granted.

4. On the basis of the pleadings of the parties following issues were recast and framed:

1. Is the suit for probate maintainable in its present form and not?

2. Is the Will dated 24 December, 1987 is a valid Will of Akhilesh Kumar Sinha since deceased as alleged?

3. Whether the alleged signatures of Akhilesh Kumar Sinha were obtained on blank papers and converted into alleged Will dated 24th December, 1987?

4. Whether fraud was so practised upon Akhilesh Kumar Sinha for obtaining his signatures in the so called Will dated 24th December, 1987?

5. Is the executor of the Will entitled to probate on the Will annexed or not?

5. On behalf of the Plaintiffs, one Pranav Kumar Singh, Mr. Sant Agarwal, one of the attesting witnesses and Raj Kumar Todi were examined as P.W.1, 2 and 3.

6. On behalf of the Defendant, Mr. Ravi Singh, the Defendant himself was examined as D.W.1.

7. Both the parties adduced various documentary evidences which were exhibited and marked.

8. So far as the Issue No. 1, on maintainability of the instant application, is concerned, there is no irregularity or non-compliance of statutory provisions in filing of the instant application. Therefore, the application is maintainable in its form. This Issue No. 1 is decided in favour of the Plaintiffs.

9. Since the other issues are connected with each other, all the issues are taken up together for consideration.

10. Mr. Chakraborty, the Learned Counsel appearing for the Defendant argued on seve