IMPORTANT POINT
The court established that the burden of proof lies on the propounder to dispel any suspicious circumstances surrounding a will's execution for it to be considered valid.

JUDGMENT :

Krishna Rao, J.

1. The Plaintiffs have initially filed an application for grant of probate of the last Will and Testament dated 5th July, 2007 of Late Jyoti Prakash Bhattacharjee being PLA No. 270 of 2017.

2. By an order dated 1st February, 2018, this Court issued special citation and general citation. Upon issuance of citations, the defendant has entered appearance and filed caveat and affidavit in support of caveat. On receipt of caveat and affidavit in support of caveat, PLA No. 270 of 2017 is converted to Testamentary Suit No. 14 of 2018.

3. Jyoti Prakash Bhattacharjee died on 7th November, 2009, left behind his wife, namely, Chitralekha Bhattacharjee (since deceased), Partha Sarathi Bhattacharjee, his Son (the defendant herein), Smt. Chandana Sanyal and Ranjana Ghosal, his Daughters.

4. The plaintiffs say that on 5th July, 2007, Jyoti Prakash Bhattacharjee (since deceased) has executed his last Will and Testament by appointing the plaintiffs herein as joint executors with respect to his piece and parcel of land or ground measuring an area 10(Ten) Cottahs, 3 (Three) Chattaks, 30 (Thirty) Sq. Ft to be a little more or less being plot No. 35 of Sub-Block No. 9 of Block B in the town of Kalyani developed by the Government of West Bengal in the Sub-Division of Kalyani in the District of Nadia, Thana Kalyani Sub Registrar Office at Kalyani of Krishnanagar Collectorate.

5. The plaintiffs say that the testator has executed his last Will and Testament in presence of his wife who is one of the attesting witnesses and another witness, namely, Khagendra Chandra Barai who is the father of executors. The attesting witness, Khagendra Chandra Barai has filed his affidavit on 18th May, 2017, supporting the Will executed by the testator in favour of the plaintiffs.

6. Ms. Nilanjana Adhya, Learned Advocate representing the plaintiffs submitted that the execution of the last Will and Testament dated 5th July, 2007, has been duly proved by the attesting witness Khagendra Chandra Barai and the defendant has not questioned the signatures of the Testator as well as the second witness of the Will, who is the wife of the Testator either in the affidavit in support of caveat or during cross examination of the witness.

7. Ms. Adhya submitted that the defendant has not been able to disprove the fact of execution of the last Will and Testament dated 5th July, 2007. She submits that the plaintiffs have adduced documentary evidence submitted by the Testator to the Estate Manager, Kalyani which shows the intention of the Testator that during his life time, he was intending to transfer the said land to the plaintiffs.

8. Ms. Adhya submits that the defendant during his cross-examination stated that he was aware of the intention of the testator and he or his family had no objection to the Kalyani property being given to someone outside their family. She submits that the defendant has not brought any evidence on record to prove that the plaintiffs have obtained Will from the deceased by coercion, misrepresentation, undue influence or by committing forgery.

9. Ms. Adhya submits that the defendants relies on a report prepared by the document examiner but this Hon’ble Court by an order dated 5th July, 2018, expressed that this Court does not require any expert opinion and the document examiner was only allowed to examine a coloured photocopy of the Will but during the cross examination, the Document Examiner confirmed that the photographs which he relied on were not the certified photographs supplied by the Registrar. She further submits that the document examiner has not submitted any report with respect to the age of documents.

10. Ms. Adhya submits that the defendant has provided the copy of death certificate only in the year 2016 and immediately the plaintiffs have filed an application for grant of probate of the last Will and Testament dated 5th July, 2007.

11. Learned advocate for the plaintiffs in support of her case relied upon the following judgments :

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