JUDGMENT :

Partha Sarathi Chatterjee, J.

1. Judgment dated 30th March, 2019 passed by the learned Additional District Judge, 1st Court, Sealdah passed in O.S. no. 02 of 2016, whereby the application for grant of probate in respect of the Will and testament of one Rabindra Nath Dhar executed and registered on 27.02.1997 had been turned down, has been called in question in the present appeal.

2. One Sujata Dhar, claiming herself to be the executrix, filed an Act 39 case vide. No. 39 of 2015 before the District Delegate, Sealdah, inter alia, contending therein that one Rabindra Nath Dhar, Hindu bachelor, having his permanent place of abode at 48, Sura East Road, P.S.-Belaghata, Kolkata -10 died testate on 14.11.2004 leaving behind three brothers and one sister.

3. Rabindra Nath Dhar (in short, testator) executed and duly registered his last Will and testament on 27.2.1997 bequeathing the property, detailed in affidavit of assets appended to the application, in favour of the applicant, Sujata Dhar who happened to be his brother’s wife. It was claimed that original Will was lost and one general diary was lodged with local police station and propounder obtained certified copy of the Will from the office of the Registrar concerned and filed the same seeking grant of probate thereof. It was claimed therein that there was no impediment to grant of probate in respect of the Will and testament executed by the testator.

4. On receipt of citation, two brothers namely, Debnath and Pabitra and one sister, Arati Das (hereinafter referred to as, the caveators) resisted the grant of probate by filing common written objection thereby rendering the case as contentious cause. Ultimately, case was transferred to the learned Court below and renumbered as O.S. no. 02 of 2016.

5. In the written objection, caveators claimed that testator used to live in joint mess with his all brothers and testator had deep love towards all his brothers and sister and testator had no intention to execute any Will and it was asserted therein that the testator had never executed any Will on 27.2.1997 and the Will was forged and manufactured. Caveators instituted one suit for partition which was transferred to the Small Causes Court of Sealdah and was renumbered as T.S. no. 99 of 2015 in which preliminary decree was passed on 29.6.2016 declaring that the share of testator has devolved upon all his legal heirs. It was further claimed that testator had no power to bequeath any portion of the joint property specifying one room therein and hence, no title was passed to the legatee by virtue of the Will and testament.

6. Upon pleadings of the respective parties, learned Court below framed as many as 7(seven) issues and in corroboration of the facts depicted in the application for grant of probate (in short, the application), the propounder examined herself and she also tendered oral evidence of one Sudipta Singha Roy, who was attached to the office of Additional District Sub-Registrar, Sealdah as UDC, one Subhranshu Bandapadhyay, who was the scribe and one Samar Kumar Roy, ASI of Police, who were examined as PW-1 to PW-4 respectively. PW-1 proved certificates of death of testator, of one Virendra Lal Kundu and also of one Rabin Dutta, certified copies of the deposition of Debnath Dhar and Pabitra Dhar (caveator nos. 2 and 3), tax bill of the house of parties thereto, copy of the Volume containing the contents of instrument no. 40 of 1997, certified copy of the Will, GD entry vide. No. 529 dated 6.8.2014 and certified copy of that GDE, which were marked as Ext.-1 to Ext.-8/1 respectively.

7. On the other hand, caveators adduced oral testimony of caveator no. 1 and they proved one letter dated 29.07.1996 allegedly written by testator to objector no.4, marked as Ext.-A.

8. Upon contested hearing, the learned Court below dismissed the application on the premise that in the case at hand, since both the attesting witnesses have died, Will was required to be proved by proving the signature of