IMPORTANT POINT
The central legal point established in the judgment is that suspicions affect the genuinity of the probate proceeding, and compliance with legal provisions for the execution and proof of Wills is crucial for the proper grant of probate.

JUDGMENT :

Uday Kumar, J.

1. This appeal has been preferred against the judgment and order dated 30.04.2013 passed by Additional District Judge, 13th Court, South 24 Parganas at Alipore (in short, the Ld. Trial Court) in Revocation Case Number 153 of 2005.

2. The facts of this appeal enumerate that testator Durgapada Paul died on 3rd November, 1988, leaving behind his wife Radha Rani Paul, son Moni Mohan Paul and five daughters namely Sova Rani Paul, Biva Rani Paul, Niva Rani Paul, Mina Rani Paul, Monju Rani Paul and relatives as his natural heirs and legal representatives. On 31.04.1990, about two years after his death, the appellant filed an application U/S 264 of the Indian Succession Act 1925 (herein after referred as, the Act) before Civil Judge (Senior Division) 10th Court Cum District Delegate, South 24 Parganas at Alipore (herein after referred as, the Probate Court), for grant of probate to an unregistered Will, claimed to have been executed by Durgapada Paul on 21.11.1984. Ld. Probate Court has granted probate on 26th April 2004 in Act XXXIX (Probate) Case No. 148 of 1990 (in short, the probate case). Based on the said order, the appellant prayed for mutation of his name against scheduled immovable properties under the Will before BL & LRO Sonarpur, upon which a mutation case being number 42/1549/B.L/S.M.P/ dated 11/04/2005, R.I. Kalikapur 701 Kalikapur 2/05 dated 18.08.2005, was started and notices to the legal heirs and legal representatives of testator Durgapada Paul were issued from his office. Only then, the respondents came to know everything about the Will and its exparte order of Probate.

3. Being aggrieved by said order, respondents Sova Rani Paul, Mina Paul, Monju Paul and Gautam Paul prayed for revocation on the ground that-

i. Durgapada Paul had never executed any Will in his life time and the alleged Will was fraudulently manufactured by appellant because the attesting witness Ranjit Kumar Paul denied his signature on the Will and on deposition of PW1 recorded in his name before the probate court. Respondents also denied their signatures appearing on the 4th page of Will as confirming party and signatures on another related documents claimed by appellant to have been signed by them.

ii. The ex-parte order of probate was obtained by the appellant without service of notice on legal heirs of the testator and did not substitute Gautam Paul, the legal heir of his deceased sister Niva Paul, in the probate proceeding.

4. Ld. Trial Judge has revoked the said ex-parte order of Ld. Probate Court on contest in Revocation Case no.153 of 2005. Hence this appeal.

5. Mr. Sarajit Sen, Ld. Advocate for appellant submitted that Durgapada Paul, the father of appellant had executed an unregistered Will on 21st November 1984 in presence of attesting witnesses Ranjit Kumar Paul Sachindra Nath Das and his daughters, by which he bequeathed his properties in favour of the appellant /son Moni Mohan Paul. His daughters put their signatures on the Will as confirming parties. One attesting witness Ranjit Kumar Paul deposed as PW1 before the Probate Court where he clearly identified his signature on Will which was denied by him before the trial court adduced as PW5. He also denied his signature “on the Will” “on deposition of PW1” and “on verification of a consent petition and vakalatnama”, deliberately to create doubt in the proceeding. Based on his evidence Ld. Trial Court has revoked the impugned order without considering that the evidences having inherent contradiction, should not be relied upon without further proof. Subsequent denial from earlier statement is neither relevant nor reliable in evidence. It shows that Ld. Trial Judge has committed error by passing impugned order on such unreliable evidences, particularly when the respondents did not challenge the genuinity of the Will in his revocation petition.

6. He further submitted that Ld. Trial Court committed mistake to hold that notices on respondents were not served, however it ap