JUDGMENT :

(Soumen Sen, J.) :

1. The appeal is arising out of an order dated 6th May, 2017 refusing to grant probate of a will executed by Mukta Nandi, wife of Late Bireshwar Nandi of Bidhan Nagar Municipality relating to her estate.

2. Sabitri is the executor of the Will. She is the appellant.

3. Sabitri Das filed an application for grant of probate of the last Will and testament of Mukta Nandi (hereinafter referred to as ‘testatrix’). The testatrix is the elder sister of the executor. Prior to her death, testatrix made and published her last Will and testament on 14th November, 2007. She appointed her younger sister Sabitri Das as executor of the Will. The Will was executed by the deceased testatrix and registered in the office of the Addl. District Sub-Registrar at Bidhannagar and same was duly recorded in Volume No.3, C.D. Form -1, Page No. 837 to 855 being no.00129 for the year 2007.

4. Sabitri applied for the grant of probate by stating the aforesaid facts.

5. Four persons namely, Tapan Nandy, Renuka Das, Purnima Dutta and Jyotsna Das contested the proceeding by filing a joint written statement denying all material allegations made in the probate application. The caveators alleged that Sabitri has no locus standi to file the probate application. The alleged Will was never executed by Mukta Nandy. The said Will was obtained by fraud and misrepresentation. Under the Hindu Succession Act, 1956 neither the petitioner Sabitri nor Swapna are the legal heirs and successors of Mukta Nandy. The property mentioned in the schedule of the Will was originally belonged to Bireswar Nandy and after his death the said property was inherited by her wife Mukta Nandy. The testatrix was issuless and after her death the property should have devolved upon the legal heirs of her husband i.e. brother and sister of Bireswar, in terms of the provisions of the Hindu Succession Act. Prior to her death the testatrix was suffering from incurable disease for a long time and which fact has been mentioned in the “so called Will”. At the time of execution of such alleged Will Mukta Nandy was suffering from many ailments and she became weak due to such prolonged illness.

6. The appellant/executor illegally made an attempt to obtain a probate of Will, which could not have been executed by Mukta Nandy due to her incurable disease. The executor in collusion with her sister Swapna and their husband most “illegally and motivatedly with the intention to grab the property” has filed the probate application.

7. On the basis of the pleadings the learned Trial Judge framed six issues, namely:

i) Is the suit maintainable in its present form and law?

ii) Has the plaintiff any cause of action to file the instant suit?

iii) Whether the testatrix executed the purported Will in sound mind and health?

iv) Whether the purported Will has been executed by the testatrix out of undue influence or coercion by the plaintiff and procured by the plaintiff fraudulently?

v) Whether the plaintiff is entitled to get decree as prayed for?

vi) Whether the suit is liable to be dismissed under suspicious circumstances?

8. The executor herself deposed as PW-1 and in continuation of her affidavit-in-chief. Biswanath Dutta, husband of Swapna Dutta deposed as PW-2. Renuka Das one of the sisters of Bireswar deposed as DW-1 and one Anima Mondal deposed as DW-2.

9. The appellant during the course of trial exhibited the following documents:

Exbt. 1 -Death Certificate of Mukta Nandy;

Exbt. 1/1 – Death Certificate of Bireswar Nandy;

Exbt. 2 – Signature together with mutual fund collectively;

Exbt. 3 – Signature of Mukta Nandy;

Exbt. 4 to 4/2 – Cheque book containing signatures of Mukta Nandy;

Exbt. 5 – Signature of Mukta Nandy on deposit slip of U.B.I.;

Exbt. 6 – Will

Exbt. 6/1 – Signature of PW-2 over Will;

Exbt. 7/1 to 7/5 – Signature of Mukta Nandy over Will;

10. However, no document has been filed from the side of the contesting opposite party.

11. The learned trial Judge after recording the submission of t