A Will's execution can be proven without living attesting witnesses if signatures are corroborated by acquainted witnesses, notwithstanding presumptions under Section 90 of the Evidence Act.

JUDGMENT :

SUPRATIM BHATTACHARYA, J.

1. This present First Appeal has been preferred by Pradip Kumar Pyne, the son of the testator of the Will namely Gopinath Pyne.

2. The Will in contention is said to have been executed on 25.02.1976.

3. The said Pradip Kumar Pyne sought for letter of administration in respect of the said Will before the learned Chief Judge, City Civil Court, Calcutta being Probate Case No. 50 of 2011.

4. On a written objection being filed on behalf of the opposite party namely Ruby Dutta the probate case became contentious and has been renumbered as Other Case being O.C. 33 of 2014 and was transferred to City Civil Court, Calcutta, Bench II for disposal.

5. During the proceedings as the opposite party defendant did not take any step so ultimately the case was fixed for ex parte hearing.

6. After taking both oral and documentary evidence and considering the same the O.C. 33 of 2014 has been dismissed ex parte without cost on 31.05.2017.

7. Being aggrieved by and dissatisfied with the judgment and order dated 31.05.2017 passed by the learned City Civil Court, II Bench Calcutta in OC no. 33 of 2014, the present appeal has been preferred.

Factual Matrix.

8. The lis involves a Will dated 25.02.1976 said to have been executed by the testator namely Gopinath Pyne who was the father of the present appellant/plaintiff. The said Gopinath Pyne was the sebait in respect of the deity namely Sri Sri Narugopal Jiu and one of the Sebaits in respect of the deity namely Sri Sambhunath Jiu. The said testator through the impugned Will intended to nominate his wife namely Smt. Bina Pyne to be a sebait and joint trustee in respect of the aforementioned two deities on his death, with all the rights, duties which have vested in him as joint trustee. Through the impugned Will the testator also appointed Pradip Kumar Pyne the appellant/plaintiff as the executor of the said Will. The plaintiff/appellant sought for letters of administration in respect of the said Will as because it has been stated that the two attesting witnesses of the said Will namely Kedarnath Pyne and Arunprakas Dhar have expired.

9. The said letters of administration was sought for by placing Smt. Rubi Dutta as an opposite party.

10. The said Rubi Dutta had filed written statement and had prayed for dismissal of the said case, but ultimately she did not contest the suit as such the said case was heard ex parte. In the present appeal also she has not appeared to contest the appeal

11. In the proceeding before the Trial Court Pradip Kumar Pyne the executor adduced evidence as PW1. One Chittapriya Raychowdhury a practicing advocate of City Civil Court, Calcutta adduced evidence as PW2. An Upper Division Clerk posted in the office of Registrar of Assurance Calcutta namely Pijush Kanti Das deposed as PW3.

The following documents have been marked as Exhibits:

Exhibit-1 - Death certificate of Gopinath Pyne

Exhibit-1/1 - Death Certificate of Anun Prakas Dhar

Exhibit-1/2 - Death certificate of Bina Pyne

Exhibit-1/3 - Death certificate of Kedarnath Pyne

Exhibit-2 - Tax receipt of KMC

Exhibit-2/1 - Tax receipt of KMC

Exhibit-3 - Original Will

Exhibit-3/1 - Signature of Kedarnath Pyne.

Exhibit-3/2 - Signature of Gopinath Pyne.

Exhibit 4 - Ration Card.

Exhibit-5 - Trust Deed.

Exhibit-6 - Power of attorney executed by Gopinath Pyne.

Exhibit-7 - Authorization letter.

Exhibit-8 - Photo copy of the certified volume copy.

12. The Trial Court framed the following issues:

Issues

1. Is the suit maintainable in its present form and prayer?

2. Has the plaintiff been able to prove due executi