The validity of a Will is upheld when properly executed, and the burden of proving undue influence or fraud lies with objectors, not the propounder.

JUDGMENT :

Sabyasachi Bhattacharyya, J.:-

1. The present first appeal has been preferred against the dismissal of an application for probate of the last Will and testament of late Provat Kumar Sarkar. The primary premise on which the learned Testamentary Court dismissed the probate suit was that the date on which the scribe had signed the Will, that is, September 27, 2004, was subsequent to the date of alleged execution of the Will on September 10, 2004.

2. Learned counsel appearing for the executor/propounder/appellant contends that there was a second (subsequent) Will of the deceased Testator produced by the defendants/respondents themselves. Although it was not marked as an exhibit, nor was any probate taken in respect thereof, since the defendants/respondents themselves produced the same in the Trial Court, the contents thereof can be looked into for collateral purposes. In the said Will itself, the Testator had referred to his first Will dated September 10, 2004, thus admitting the execution of the same.

3. Learned counsel for the appellant next argues that there was no date appearing under the signature of either the testator or the attesting witness in the Will-in-question. It is pointed out that the scribe of the Will was present at the time of subsequent notarization on September 27, 2004 and had signed as identifier during such notarization. Thus, it was patently a mistake on the part of the scribe to put the same date under his other signature which was already there on the Will.

4. It is submitted further that there is no pleading on record in the written objection/statement of the defendants-respondents challenging the date on which the scribe signed the Will or as regards any suspicious circumstance arising on such ground.

5. Moreover, no counter suggestion was put to P.W.2, one of the attesting witnesses, in his cross-examination regarding non-execution of the Will on the relevant date or regarding the testator or the attesting witnesses having not signed the Will on September 10, 2004. No argument has been advanced in that regard as well. Since the Will was duly proved under Section 63 of the Indian Succession Act as well as Section 68 of the Indian Evidence Act by both the attesting witnesses thereto, who adduced evidence respectively as P.W.2 and P.W3, there cannot be any manner of doubt or suspicious circumstance surrounding the execution of the Will.

6. Learned counsel for the appellant argues that a third case was made out by the Testamentary Court, beyond the pleadings, arguments or contentions of either party, also traversing beyond the issues framed, by holding that the Will was shrouded by suspicious circumstances due to the date of signature of the scribe not tallying with the date of execution of the Will.

7. Hence, the Trial Court erred in law in raising such ground by itself in the impugned judgment for the first time, particularly