The validity of a will requires strict adherence to statutory execution and attestation procedures; failure to prove execution results in denial of probate.

JUDGMENT :

Sugato Majumdar, J.

1.This is an application for grant of letters of administration of the last will and testament of the deceased Girindra Kishore Pal Choudhury dated 30/11/2006.

2. The Testator Girindra Kishore Pal Choudhury breathed his last on 29/04/2015. His last abode was at 123, M.S. Mukherjee Road, P.O – B.D. Sopan, P.S: Khardah, District – 24 Parganas (N), Kolkata – 700116. Prior to his death, the Testator made his last will and testament on 30/11/2006 appointing his two sons, Subir Pal Chowdhury and Prabir Pal Choudhury as joint and several executors. One of the executors, Subir Pal Chaudhury breathed his last prior to the death of the Testator. The said Subir Pal Chaudhury died intestate leaving behind him his widow and son.

3. There are two attesting witnesses of the will, namely, Swapan Debnath and Rathin Saha and the executant was identified by Sri Somnath Chakraborty, Advocate on the same day before the Notary Public Mr. Sita Ram Shaw.

4. One of the attesting witnesses, Swapan Debnath expired on 03/06/2015. A copy of death certificate is annexed to the instant application. Death certificates of the Testator as well as the deceased Executor are also annexed along with the instant application.

5. The sole surviving Executor of the will avoided to make application for grant of probate in spite of repeated persuasions by the present Petitioner who is the beneficiary of the will. On being constrained the Beneficiary filed the present application for grant of letter of administration of the last will and testament of the Testator dated 30/11/2006.

6. General and special citations were issued.

7. Caveats were filed on behalf of Smt. Suparna Pal Choudhury, wife of the deceased Executor Subir Pal Chaudhury. Prabir Pal Chaudhury who was appointed as the other executor, renounced his executorship by filling an affidavit in this Court, to that extent and lodged caveat. Both the Caveatrix and the Caveator filed affidavit supporting the caveats.

8. Contentions of Sri Prabir Pal Chaudhury are that the will is not a genuine will, it’s rather an unnatural will. The Testator had no intention to execute any such will. Both the sons of the Testators were in his good book. The Executors, being the sons of the Testators are the owners of the demised property located at Salt Lake, Kolkata. The Testator never expressed any willingness during his lifetime to execute any will in respect of the demised property. The instant will is a product of fraud and evil machination of the propounder who received substantial benefit under the will. The Testator was a man of weak intellect, too old and mentally retarded and devoid of understanding. The Testator must not have executed the will, as alleged. The beneficiary, being the present Petitioner is a stranger to the family. Testamentary disposition of property in her favour is unnatural raising serious cloud surrounding execution. All other contentions of the instant application are denied.

9. Similarly, the contentions of the Caveatrix Smt. Suparna Pal Choudhury, are that the instant will was never executed by the Testator. The Testator was a man of weak intellect, too old and mentally retarded and devoid of understanding. The instant will is product of fraud and evil machination of the propounder. All other contentions of the instant applications were refuted.

10. The probate proceeding became contentious on filing of the caveats. It was renumbered.

11. Following issues were framed:

1. Whether the instant will is the last will and testament of the deceased Girindra Kishore Pal Choudhury?

2. Whether the Testator was physically fit and mentally alert at the time o