Judgment :

Sabyasachi Bhattacharyya, J.

1. The present first appeal has been preferred against the grant of probate of the Will of one Late Shanti Shaw. The appellant is the son of the testatrix whereas, by virtue of the Will, the testatrix bequeathed her properties to her daughter Smt. Sabitri Shaw (the respondent’s wife).

2. Learned counsel for the appellant contends that the inordinate delay in filing the probate application is itself to be construed as a suspicious circumstance vitiating the application. It is contended that the Will was purportedly executed on January 6, 1997, and the testatrix died on July 16, 1997. A previous probate application was filed on January 6, 1999 but the same was dismissed on April 17, 2002 due to non- production of the original Will. The present proceeding arises from the second probate application, filed on May 8, 2002. Since the present application was filed about five years after the death of the testatrix, the same is hit by Article 137 of the Schedule to the Limitation Act, 1963, which stipulates the time-limit for such applications to be three years from the date of cause of action.

3. Learned counsel cites a Division Bench judgment of this Court in F.A 368 of 2013 [Krishna @ Krishna Lal Ghosh v. Ashoke Ranjan Dutta] in support of such proposition.

4. It is secondly argued by the appellant that both the attesting witnesses in the disputed Will were of the Mohammedan community, whereas the testatrix was a Hindu widow. As such, it was improbable that the testatrix had any truck with the said witnesses. It transpires that the Executor of the Will, being the son-in-law of the testatrix who benefits from the bequest in favour of his wife, procured such witnesses. It is argued that the very fact that the son-in-law was the Executor and propounder whereas the beneficiary is his wife, the daughter of the testatrix, casts doubt on the genuineness of the Will.

5. It is further argued that there is no statement in the Will as to the contents of the same having been read over and explained to the testatrix. The Will is in English whereas the testatrix signed in Bengali. The scribe, who is an advocate, who was alleged to have read over and explained the contents to the testatrix, was the best witness but was withheld, despite the P.W.1 (Executor) having stated in his evidence that the said scribe would be brought as witness.

6. Learned counsel next contends that the appellant, who according to him is the only son of the testatrix (although the respondent has claimed that the testatrix has another son) has been totally excluded from the bequest which is itself a suspicious circumstance as well. The son-in-law, being the husband of the sole beneficiary, was the Executor and the propounder of the Will, which also shrouds the execution of the Will with doubt.

7. The second attesting witness (P.W.2), signed in Urdu but stated in his cross-examination that he can read and write English, which is also inexplicable.

8. The consistent case of the attesting witnesses in evidence is that the Will was drafted, executed and signed in the Sherista of the advocate Ranjit Kumar Dutta, who was the scribe. However, beneath the signatures of the attesting witnesses in the purported Will, the address of one Zainab Urdu Primary School Building has been given, indicating that the Will was executed in the said school building, which is also a contradictory circumstance.

9. Thus, it is contended that the execution of the Will was fictitious and the probate case ought to have been dismissed.

10. Learned counsel for the respondent controverts such submissions and argues that there was no delay at all in filing the probate application. Since the learned erstwhile advocate of the propounder failed to submit the original Will despite the same having been handed over to him, the first probate application was dismissed. However, the second probate application was filed within a month thereafter. As such, there was no conceivable delay on t