JUDGMENT :

1. The cited persons did not contest the application in the Court below. Special citations issued in the application under Section 276 of the Indian Succession Act, 1975 filed by the appellant in the Court below were also not responded to. This Court as a matter of abundant caution directed substituted service, since they have not appeared here. The Affidavits of substituted service filed in Court today are taken on record.

2. There is nobody to contest the instant appeal, filed against judgement dated 16^th March, 2013 passed by the learned Chief Judge of the City Civil Court at Calcutta in Probate Case No. 2 of 2012. By the said judgment, the trial Court dismissed the application for probate.

3. The brief facts of the case are that the appellant sought probate of the Will of his paternal uncle Gouri Sankar Banerjee. Gouri Sankar Banerjee and Shankar Banerjee are the two sons of late Rampada Banerjee alias Raja Ram Chandra Banerjee and Usha Rani Banerjee, who died on 2^nd July, 1956 and 16^th September, 1979 respectively.

4. The proceedings in the trial Court were filed by the appellant seeking probate under Section 276 of the Act of 1975 of the Will of late Gouri Sankar Banerjee dated 1^st April, 1976.

5. Gouri Sankar Banerjee and Shankar Banerjee are two brothers who were inherited 50% share each in premises Nos. 7/4A and 7/3B, Radhanath Mullick Lane, Calcutta- 700012. Shankar Banerjee died on 2^nd October, 1993 and Bina Banerjee, his wife, died on 7^th March, 2013.

6. Therefore, Tapas Kumar Banerjee, the appellant herein was the sole successor in the share of Shankar Banerjee although the same is not so germane to the instant proceeding. The 50% share of Gouri Sankar Banerjee in the aforesaid two properties is the subject matter of the Will dated 1^st April, 1976 executed by him.

7. Gouri Sankar Banerjee, the appellant’s uncle had a wife Jyoshna Banerjee, who had died on 18^th November, 2003. They had a son and daughter, viz., Rabi Shankar Banerjee and Runu Chatterjee.

8. Rabi Shankar Banerjee was mentally unsound and single. He died on 13^th August, 1978, pre- deceasing his father. Runu Chatterjee died on 7^th April, 2000 leaving behind her husband and a son and daughter. The husband Swapan Kumar Chatterjee and children Satabdi Chatterjee and Samrat Chatterjee were issued Special Citations by the Court below. They did not contest the application for probate.

9. It was specifically mentioned in the Will that the appellant-propounder was the executor and would be entitled to apply for probate upon reaching the age of 40. Since the appellant has been staying for more than 4 decades at Gurgaon near Delhi, he has applied for probate after 12 years of the death of the testator.

10. After receiving no response to the special citation, the Court below took up the hearing of the application filed by the propounder.

11. The propounder, Tapas Kumar Banerjee and two of the attesting witnesses of the will of Gouri Sankar Banerjee dated 1^st April 1976, namely, Ashim Kumar Bhattacharjee and Anup Mukherjee deposed evidenced in the trial Court. The witnesses proved the signatures as that of the testator. They deposed that the testator executed the Will after understanding its contents out of his own free Will and without coercion or duress. The appellant-propounder was not present when the Will was executed. He was 13 years old.

12. In course of examination, the propounder/appellant/PW-1 stated that he obtained the Will from his mother. He stated that the Will was kept by the testator with his brother Shankar Banerjee (father of the appellant) who gave it to his mother and the mother gave it to him about 8 to 10 years before 2012. He could not apply for probate earlier as he was occupied with his employment/work at Gurgaon near Delhi.

13. The Death Certificates of the children of the uncle, namely, Rabi Shankar Banerjee and Runu Chatterjee and that of the deceased were exhibited in the Court below.

14. Notwithstanding aforesaid, the trial Judge found