JUDGMENT :

Soumen Sen, J.

1. The Will of Sabitri Prabha Das is the subject matter of challenge in this probate proceeding. She bequeathed the property in favour of Mina Das and Swarup Das, wife and son of Dipak Kumar Das by a registered Will.

2. During the pendency of the appeal Mina Das died and she was substituted by her married daughter Mahua Dutta.

3. Aroti Das, Bidyut Das and Prasanta Das, wife and two sons of late Manoranjan Das filed an affidavit in support of the caveat upon being aware of the pendency of the probate proceeding duly notified and published in the newspaper.

4. The probate case was accordingly, marked as a contentious cause.

5. During the Pendency of the appeal Aroti Das died and she was substituted by her married daughter Tapati Patra.

6. The beneficiaries of the Will and the caveators are all related to Sabitri from her husband’s side.

7. Mr. Subir Sanyal learned Counsel representing on behalf of the respondents has submitted that the Will is not proved in accordance with law.

8. It is submitted that the alleged Will mentions the name of one Dipak Kumar Biswas as an attesting witness. Although Mr. Das has filed an affidavit-in-Chief but he did not appear during trial.

9. It is submitted that in absence of evidence of an attesting witness the Will is not proved in accordance with Law.

10. Mr. Sanyal has referred to Section 63(C) of the Succession Act, 1925 and Section 67 and 68 of the Indian Evidence Act and submits that one attesting witness atleast should be called for the purpose of proving the execution of the Will.

11. It is submitted that the caveator has raised suspicious circumstances surrounding the execution of the Will and the evidence on record would show that the persons involved in the execution of the Will are known and close to the beneficiaries. The beneficiary has taken a very prominent role in the execution of the Will. The Will was brought into existence with a view to frustrate the suit filed by the caveators for partition of the suit property left by the deceased.

12. It is submitted that in absence of the Will the appellant would have succeeded the estate of the deceased along with respondents.

13. Ms. Soma Chakraborty learned Counsel representing on behalf of the respondent submits that basis of the challenge to the Will is that in the event the Will is given effect to it would result in disruption of possession of the caveators in the property in question and the caveators would be deprived of enjoying the said property as co-sharers.

14. It is submitted that there is no real challenge to the due execution of the Will.

15. Ms. Chakraborty has referred to the evidence of Bidyut Kanti Dey and Radha Gobinda Dey. Bidyut Kanti is the scribe and Radha Gobinda is the executor.

16. The learned Counsel has submitted that apart from the evidence of the aforesaid two witnesses it is important and crucial to note that it is a registered Will. The registration attaches solemnity to the due execution and attestation of the Will.

17. The learned Counsel has drawn our attention to Section 114(e) of the Evidence Act and submits that for a registered Will there is a presumption of valid execution and it ensures that anyone can rely with confidence on the statements contained in the registrars maintained under the Registration Act, 1998. It ensures safety and transparency.

18. The learned Counsel submits that although the attesting witness did not appear and adduce evidence on behalf of the respondents it would not per se affect the due execution of the Will as it has been clearly stated by the scribe Bidyut Kanti that he has drafted and prepared the Will as per the instruction and direction of the testatrix Sabitri Prova Das and after the Will was drafted the contents of the Will was read over and explained to her.

19. It is submitted that Bidyut has also stated that Lakshmi Kanta Das was the typist and Sabitri signed on every page of the Will in his presence and in the presence of two witnesses one of whom was Radh