JUDGMENT :

Ajay Kumar Gupta, J.

1. The instant First Appeal is directed against the judgment and order dated 12th March, 2012 passed by the Learned 5th Court, Additional District Judge, Burdwan in O.S. (Will) Case No. 7/2011. By the said judgment and order, the Learned Judge rejected the application for probate of a Will of Testator, Sudhir Chandra Konar, filed by the executor, Deb Prosanna Konar.

FACTS OF THE CASE:

2. The short facts, leading to filing of this present appeal, are summarised as under:

One Sudhir Chandra Konar, Son of Late Dibakar Konar was a Government Pleader practicing in the Burdwan Court from 1976 to 1996. He made and executed a Holograph Will (‘the said Will’) on 31.12.1986 appointing his younger son, Deb Prosanna Konar as an executor thereof. At the time of executing and attesting the said Will, the testator was residing permanently at Radhanagar South Road, Burdwan Town within the jurisdiction of the Learned Trial Court. He died on 13.12.2000 leaving behind him his widow and his two sons, namely, Dilip Kumar Konar and Deb Prosanna Konar and two daughters, namely, Chitralekha Ghosh and Rita Roy. By the said Will, he bequeathed his ‘residential two storied’ house situated at Burdwan including a vacant plot of land measuring more or less four Cottahs on the eastern side of his residential house intervened by a lane, equity shares and debentures standing in the name of Testator in Public Limited Companies exclusively to his younger son, Deb Prosanna Konar. He bequeathed the rest of his properties equally to all his legal heirs. His wife, Sudhamoyee Konar died during the pendency of the suit.

3. The sole executor, Deb Prosanna Konar filed an application for probate under Section 276 of the Indian Succession Act, 1925 (hereinafter referred to as ‘the said Act’) before the Learned District Delegate, Burdwan on 04.05.2002. Which was registered as Will (P) Case No. 82/2002. It was converted to O.S. (Will) Case No. 7/2011 after it became contentious, when one of the testator’s son, namely, Dilip Kumar Konar and daughter, Chitralekha Ghosh filed written objections. The younger daughter, Rita Roy did contest the claim for probate.

4. Dilip Kumar Konar has denied and disputed all the averments made in the said probate petition and further stated that the testator did not execute such Will and it was not his last will and testament.

5. It was further alleged that the Will was not duly executed and properly attested and the same is surrounded with suspicious circumstances. The testator had equal love and affection with all his children and could not have deprived his daughters and other son from the residential and landed properties as well as shares and debentures of the testator. The propounder has failed to remove all such suspicious circumstances. The Learned Trial Court has rightly rejected the prayer for probate and prays for dismissal of the instant appeal.

6. The daughter Smt. Chitralekha Ghosh denied and disputed the contention of the appellant/executor and further stated that the testator neither executed nor attested the said Holograph Will. The testator did not have any reason to deprive her from the shares and other properties of the testator. The grounds urged by both objectors are more or less similar and identical.

7. On the basis of pleadings filed by the parties, the Learned Trial Judge framed the following issues:

i. Whether the petitioner has valid right to file the present application for grant of probate?

ii. Whether the citations have been to the next in kin of the testator?

iii. Whether the Holograph Will filed for Probate has been executed by the testator Sudhir Chandra Konar and the same has duly been attested by the attesting witnesses?

iv. Whether the petitioner is entitled to get grant of Probate of the Will left by the testator Sudhir Ch. Konar?

8. Both sides adduced evidences, both oral and documentary during trial.

9. After examining evidence, both oral and documentary, the Learned Trial Judge came to