JUDGMENT :

Ajay Kumar Gupta, J.

1. Two separate Probate Proceedings under Section 276 of the Indian Succession Act, 1925 were initiated by two separate executors seeking probate of two separate alleged Last Wills dated 11th June, 1993 and 3rd February, 1995 respectively of the testator, Monilal Saha before the Learned Trial Court. Both the Probate Proceedings have been decided by the Learned Trial Judge on 7th April, 2015 by two separate Judgments.

2. Feeling aggrieved and dissatisfied with the Judgment and Order dated 07.04.2015 passed by the Learned Additional District Judge, 5th Court at Malda in O.C. Suit No. 7/2010, the appellants/opposite parties, Ramkrishna Saha and others filed an appeal being F.A. No. 185 of 2015. At the same time, the appellant/petitioner, Kalpana Saha also filed another appeal being F.A.T. No. 302 of 2015 against another Judgment and Decree dated 07.04.2012 passed by the Learned Additional District Judge, 5^th Court at Malda in O.C. Suit No. 4/2012.

3. By the said Judgment and Order dated 7th April, 2015, O.C. Suit No. 7/2010 was allowed on contest without any order as to costs in favour of Rajkumar Saha in respect of the Will dated 11th June, 1993. A Probate Certificate was issued in his favour in respect of the estate left by Monilal Saha. On the other hand, O.C. Suit No. 4/2012 filed by Kalpana Saha, has been dismissed on contest without any order as to costs.

4. Both the aforesaid appeals have been taken up together for passing a common Judgment since the facts and law involved are similar and evidence relied by the Learned Court below are also found same and identical.

FACTS OF THE CASE:

5. The essential facts, relevant for the purpose of disposal of the instant appeals, are as under:

6. Monilal Saha, since deceased, during his lifetime used to reside at his residence at Silampur, P.S. – Kaliachak, District – Malda and also at Kalitala, P.S. – English Bazar within the jurisdiction of the Court. He had residential house, garden, agricultural land and business of a hotel named ‘ Monalisa’ situated at Baliadanga. He died on 04.01.1996 leaving behind his wife Saralabala Saha, three sons, namely, Ujjwal Saha, Rajkumar Saha and Ramkrishna Saha and three daughters, namely, Ranjana Saha, Bandana Chowdhury and Kalpana Saha at Malda Sadar Hospital due to his illness. The wife of Monilal Saha died after the death of Testator i.e. on 27.06.1994 at Silampur. Ujjwal Saha also died leaving behind his widow Dipti Saha. The claim of Rajkumar Saha is that Monilal Saha, during his lifetime, executed his last Will on 11.06.1993, which was duly attested by Mriganka Kumar Dutta and Biswanath Roy as attesting witnesses. Rajkumar Saha and brother, namely, Ujjwal Saha was appointed as executors for obtaining probate from the competent Court. In pursuant to the contention of the petitioner, Monilal Saha was physically fit and mentally alert at the time of execution of the Will. Appellant found the Will in an old box of the deceased and, thereafter, filed a Probate Proceeding seeking probate of the said Last Will dated 11.06.1993. The Testator did not disclose about the Will to his sons and daughters during his lifetime.

7. Appellants/Opposite Parties of F.A. No. 185 of 2015, had contested the case before the Trial Court by filing written objection denying and disputing all the contention of the petitioner, Rajkumar Saha. It is contended that the Will produced by the Raj Kumar Saha is manufactured one. They further stated that the testator actually executed his Last Will on 3rd February, 1995 after cancelling and revoking his earlier Will dated 11.06.1993. The said Will was torn by the testator because he realised that the Will was not properly executed due to some error traced out in the said Will.

8. Testator executed his Last Will on 03.02.1995 appointing daughters Ranjana Saha and Kalpana Saha as executors with a provision that they jointly or singly can obtain probate from a competent Court. Accordingly, Kalpana Saha filed the