ORDER :

Soumen Sen, J.

1. The appeal is arising out of a judgment and decree dated 20th September, 2006 passed in O.C. Suit No. 1 of 2002.

2. The appellant is aggrieved by the judgment passed by the learned Trial Judge in refusing to grant probate of the Will dated 23rd January, 1969 executed by one Basanta Kumari Ghosh, since deceased.

3. Briefly stated, Basanta Kumari Ghosh executed a Will on 23rd June, 1965 appointing Brojendra Nath Roy Chowdhury as sole executor of the Will. The executor is also the beneficiary of the assets of the testatrix. Basanta Kumari Ghosh died on 29th August, 1965. The executor earlier filed an application for grant of probate being probate case no. 74 of 1969. The said probate case was allowed by the learned District Delegate, Serampore on 27th June, 1970. One Surendra Nath Ghosh (predecessor in interest of the original respondent no. 1(A), 1(B)and 1(C) along with others filed a suit being revocation case no. 6 of 1972 praying for revocation of the probate granted earlier. The learned Additional District Judge, 2nd Court, Hooghly on consideration of the fact that the applicants in the revocation case ought to have been cited as they would have succeeded were entitled to the estate of the said deceased but for the Will allowed the revocation application on 17th January, 1975.

4. In view of the aforesaid the plaintiff filed a fresh application being probate case no. 128 of 1997 before the learned Chief Judge, City Civil Court praying for grant of probate of the Will dated 23rd June, 1965 in which the original respondent on being cited filed written objection and upon the said probate case was marked as contentious cause it was renumbered as O.C. Suit No. 1 of 2002. The respondents in their objection have denied all the material allegations and it was specifically contended that Basanta Kumari Ghosh never had executed the Will under consideration nor any such Will was executed voluntarily. At the relevant time she was very sick and she was not in a position to execute the Will or dispose of her assets voluntarily. The alleged will is forged and fabricated for making wrongful gain. The said Will was manufactured and/or brought into existence by the plaintiff with an ulterior motive.

5. On the basis of the pleadings the trial Court framed seven issues.

6. The trial Court dismissed the probate suit, inter alia, on the ground that the propounder has failed to disclose the name of the scribe or that the said Will was written in his presence. There is no indication in the Will that the said Will was read over and explained to the testatrix.

7. There are two attesting witnesses in the Will. One Pulin Behari Mazumder is the scribe-cum-attesting witness. Pulin Behari Mazumder died prior to the filing of the probate case. Pulin Behari Mazumder died on 31st March, 1990. The other attesting witness was not produced. According to the plaintiff he was present at the time of execution of the alleged Will and the two attesting witnesses alleged to have put their respective signatures on the Will in his presence. However, the learned trial Court was of the view that it was more of an excuse on the part of the plaintiff for not producing the other attesting witness and the explanation offered for not being able to produce the other witness Bhavatosh is not at all satisfactory. As the essential requirement for proving the Will by one of the attesting witnesses is not fulfilled, the will is not proved in accordance with law.

8. The present appellants are the legal heirs of the original executor/plaintiff.

9. Mr. Sabyasachi Chowdhury, learned Counsel appearing on behalf of the appellants have submitted that the Will is proved in accordance with Section 63(c) of the Indian Succession Act, 1925 read with Section 68 of the Indian Evidence Act. It is submitted that the Will is required to be proved by an attesting witness and in view of the fact that Pulin Behari one of the attesting witnesses was examined as an witness in the earlier