JUDGMENT :

Soumen Sen, J.

1. The appeal is directed against the judgment passed by the learned Additional District Judge, 5th Court, Burdwan, in connection with an application for grant of probate of the Will claimed to be the last Will and testament of one Prabal Ranjan Kar since deceased.

2. The probate was contested by the elder sister of the testator. The learned Trial Judge refused to grant probate inter alia, on the ground that the propounder has failed to prove that the testator executed the alleged Will on his own accord and volition and he was physically and mentally capable of executing such Will at the material point of time.

3. In short, failure to remove suspicious circumstances surrounding the execution of the Will, has persuaded the learned Trial Judge in refusing to grant probate.

4. Here is an unprivileged Will of one Prabal Ranjan Kar who it is said to have drafted a Will in his own handwriting and carried it to one Shyamalendu Goswami a typist in court premises of Burdwan District Court to type out the said Will presumably on 6th February, 2009 near about 4 months before his death. He died at the age of 68. He was admitted to a nursing home in and around June 13, 2009 before he expired for having his old ailment of diabetes, high blood pressure and hypertension. He died on the following day i.e., June 14, 2009. He at the relevant time was also suffering from heart related ailments.

5. The executor is the sole beneficiary under the Will.

6. The beneficiary happens to be the advocate of the testator.

7. Under the Will, the testator alleged to have bequeathed all his movable and immovable properties including dwelling house at 54/1 Kachhari Road, P.S.-Burdwan in favour of the executor.

8. The stated consideration for such bequeath appears to be the unstinted care, support and devotion of the executor to the testator during his life time. The testator presumed to have satisfied about the integrity of the executor acknowledged the service rendered by the executor in various matters free of any charge or remuneration. The executor was alleged to be faithful and trustworthy. It was also further stated that before drafting the Will the testator had expressed his willingness to appoint the petitioner or his wife as executor and on their expressed consent he appointed them as executors of the said Will and bequeathed the entire property to the executor. The petitioner says that at the time of the execution of the said Will testator was physically fit and mentally alert and he was capable of executing the said Will. It is stated that the Will was executed by the testator on his own accord and volition.

9. The testator was a bachelor person. He was survived by his only legal heir namely Bharati Basu, his elder sister. She was alive at the relevant time. She contested the probate proceeding.

10. After citation of notice of the Will Bharati Basu entered appearance and filed her objection.

11. In her objection Bharati has categorically stated that she maintained a cordial relationship with the testator and she used to attend all his needs and even purchased medicine for him. Her brother was suffering from High Blood Pressure and High Blood Sugar for a prolonged period of time. She denied execution of the Will and specifically contended that her brother having regard to his physical condition and eye problem could not have executed the said Will. She had further stated that her brother never used to follow the advice of the doctors although he was himself a homeopath doctor and because of such casual and irresponsible behaviour he lost his eye sight. In fact in October, 2008 she brought him to one eye surgeon namely Bikash Basu who upon examination had observed that the testator had lost his eye sight due to detachment of Retina and as a result of which the testator had no ability to read and write by himself. Since he himself was a Homeopathic Physician he used to prescribe medicines to his patients which were reduced to writing by hi