JUDGMENT :

(Tapabrata Chakraborty, J.)

The present appeal has been preferred challenging the judgment dated 27th March, 2018 passed by the learned 3rd Judge, City Civil Court at Calcutta in O.C. Case No.22 of 2014 dismissing the application for grant of probate of the Will made and published by one Chintamoni Mullick, in a contentious cause.

2. The application for grant of probate accompanied by an affidavit of assets was filed by Arun Kumar Mullick (in short, Arun) and by one Gour Gopal Mullick (in short, Gour) being the appellants herein stating inter alia that one Chintamoni Mullick (in short, Chintamoni) was the owner of the said assets and prior to his death on 13th December, 2002, he voluntarily executed a deed of Will on 11th December, 2002 and the same was notarized on the same date. Claiming the said Will to be his last Will, Chintamoni settled his right, title and interest in the assets in favour of Gour and Arun. The said Will was executed by Chintamoni in presence of two attesting witnesses, namely, Sri Samir Kumar Seal (in short, Samir), an advocate and Dr.Shyamal Kanti Mullick (in short, Shyamal). Arun and Gour were appointed as the joint executors. The said Will was written in Bengali language and was read over and explained to Chintamoni and thereafter, he put his Left Thumb Impression (in short, LTI) voluntarily in presence of the attesting witnesses. In the said application it was also averred that Chintamoni, a Hindu bachelor, was governed by the Hindu SUCCESSION ACT , 1956 (in short, the 1956 Act). He expired on 13th December, 2002 and the names of the surviving heirs were detailed in paragraph 7 of the application.

3. Supporting the contents of the probate application, one Shibananda Mullick (in short, Shibananda), Chintamoni's step brother and one Gita Basak (in short, Gita), his step sister submitted separate applications as consenting parties. However, Debabrata Sil (in short, Debabrata), Chintamoni's nephew and two nieces, namely, Chaitali Seth (in short, Chaitali) and Purnima Das (in short, Gita) filed a joint written objection stating inter alia that the Will was a fabricated one and that the same was prepared by the appellants after the death of Chintamoni for grabbing his property by putting false thumb impression of Chintamoni. At the time of execution of the alleged Will, Chintamoni was unconscious and bedridden.

4. On the basis of the pleadings the learned Court below framed the following issues:

i. Whether the case is maintainable in its present form and prayer?

ii. Did the testator, Chintamoni Mullick execute his last Will and Testament on 11.12.2012 in presence of the witnesses?

iii. Are the applicants entitled to get the probate of the last will and testament of Chintamoni Mullick executed on 11.12.2002?

iv. To what other relief or reliefs, if any, are the plaintiffs entitled?

v. Was the deceased Chintamoni Mullick mentally alert and physically fit at the time of executing the alleged Will?

5. One attesting witness, namely, Samir, an advocate and one of the propounders, namely, Gour deposed as PW1 and PW2. The Will and the signatures were marked as Ext.1 to 4, an authority letter dated 27th May, 2017 and the death certificate of Chintamoni were marked as Ext.5 and Ext.6 respectively. On behalf of the respondents, Debabrata deposed as DW1, the record-in-charge of J.N.Roy Sishu Seba Bhawan, Manicktala, namely, Dwiptendra Ghosh deposed as DW2. Upon contesting hearing and considering the materials on record the learned Court below dismissed the probate application observing inter alia that the circumsta