JUDGMENT :

KRISHNA RAO, J.

1. The plaintiff had initially filed an application being PLA No. 31 of 2015 for grant of probate of the Last Will and Testament dated 30th May, 2000 of the testatrix Mantu Debi Benia.

2. Smt. Sova Gupta, W/o Late Sankar Gupta, daughter of Late Mantu Debi Benia has filed caveat and affidavit is support of caveat in PLA No. 31 of 2015 and on receipt of affidavit in support of caveat, the Probate Application was converted to a Testamentary Suit No. 20 of 2016.

3. The said Mantu Debi Benia (since deceased) was the widow of Late Mahavir Prasad Benia. The husband of the testatrix was predeceased to her who died on 23rd March, 1969. In the wedlock between Mantu Debi Benia and Mahabir Prasad Benia, two sons, namely, Pradip Kumar Benia, Sunil Kumar Benia and three daughters, namely, Sova Gupta, Tilotama Gupta and Susma Gupta were born.

4. Mantu Debi Benia died on 9th June, 2000. During her lifetime, she had executed her Last Will and Testament on 30th May, 2000 and appointed the plaintiff, her eldest son, namely, Pradip Kumar Benia, as sole executor of her Last Will and Testament.

5. The caveatrix submits that the last Will and Testament dated 30th May, 2000, is not genuine and the thumb impression of the deceased/ testatrix on the Will is also not genuine. It is also alleged by the caveatrix that the deceased was not in sound mind and had no capacity to understand the implication for execution of her Will and Testament.

6. The caveatrix further alleged that the execution of the Will is surrounded by suspicious circumstances and is procured or manufactured by the son of the deceased under suspicious circumstances.

7. The caveatrix also alleged that the property which the testatrix has bequeathed in her alleged last Will and Testament, the testatrix is not the owner of the said property.

8. During pendency of the suit, one of the sons of the testatrix, namely, Sunil Kumar Benia died on 20th June, 2023 who is also one of the beneficiary of the last Will and Testament. After his death on an application of the plaintiff, this Court recorded the death of Sunil Kumar Benia and his legal heirs were brought on record. The legal heirs have filed their affidavit of consent stating that they have no objection for grant of probate to the plaintiff.

9. Considering the pleadings of both the parties, the following issues were framed:

(i) Whether the Will dated 30th May, 2000, executed by Mantu Debi Benia, since deceased, is the last Will of the testator?

(ii) Whether the said Will is executed by Mantu Debi Benia, since deceased, or not?

(iii) Whether Mantu Debi Benia, since deceased, had mental capacity and sound mind to understand the meaning and contents of the Will and Testament dated 30th May, 2000, before the execution thereof?

(iv) Whether the Will and Testament dated 30th May, 2000, is genuine or has been executed to be practising fraud or is there any suspicious circumstances with regard to the genuineness while the Will was executed?

(v) Whether the Executor is entitled to grant of Probate of the Will and Testament dated 30th May, 2000, executed by Mantu Devi Benia, since deceased, as prayed for?

10. The plaintiff in order to prove his case, has examined 3 (three) witnesses, namely:

i. P.W.1 - Anand Kumar Lal, one of the attesting witnesses of the Will.

ii. P.W.2 - Tilottama Gupta, one of the daughters of the deceased/testatrix.

iii. P.W.3 - Pradip Kumar Benia, the executor of the Will and son of the deceased/testatrix.

11. During evidence of the plaintiff’s witnesses altogether 5 (Five) documents were marked as

“Exhibit – A to Exhibit – E” which are as foloows:

Exhibit – A: Copy of the last Will and Testament dated 30th May, 2000 of Mantu Debi Benia, since deceased.

Exhibit – A/1: Left Thumb Impression of Mantu Debi Benia (since deceased), appearing on the first page bottom of the Will.

Exhibit – A/2: Left Thumb Impression of Mantu Debi Benia (since deceased), appearing on the first page bottom of the Will, identified by Anand Kumar Lal