1. This is an appeal under section 384 of the Indian Succession Act, 1925 challenging judgment and order dated 30.4.2010 passed by the learned Additional District Judge (FTC), Nagaon in T.S. (Probate) No. 54/2009 and thereby allowing the probate of Will dated 11.4.2007 claimed to have been executed by one Dhaneswar Bania.

2. The aforesaid probate proceeding was initiated on the basis of an application filed by executor Nilima Mudoi claiming that her father Late Dhaneswar Bania ('the testator') had executed a registered Will on 11.4.2007 thereby bequeathing his property in favour of two persons, namely, the executor herself and her brother's son, Sri Debastuti Das. It was stated in the application that testator was survived by two sons, namely, Sri Pabitra Kumar Das and Sri Kushal Kumar Das, one daughter Smt. Nilima Mudoi and a grand-son, Sri Debastuti Das as legal heirs. Sri Kushal Kumar Das, one of the two sons of the testator, filed objection raising dispute as to execution of Will and claiming that suspicious circumstances were present surrounding alleged execution of the Will. On such objection, the application filed under section 276 of the Indian Succession Act was converted in the form of suit under section 295 of the same Act and the learned court proceeded to decide the same by following procedures of a suit as far as practicable.

3. On the rival contentions of the parties, the learned court framed following five issues :

(i) Whether plaintiff/petitioners has/have any cause of action?

(ii) Whether the petition is maintainable in its present form under Indian Succession Act?

(iii) Whether the Will, annexed with the petition for probate, was duly executed, attested by the executor, Sri Dhaneswar Bania?

(iv) Whether Will in question was executed under suspicious circumstances and manufactured by plaintiff and as such the said Will is not genuine one?

(v) To what relief/reliefs are the parties entitled under the law, equity and justice?

4. The propounder examined four witnesses including herself and exhibited 2 (two) documents, namely, the Will as Ext.1 and death certificate of the testator as Ext.2. The objector, on the other hand, examined two witnesses including himself. The learned court after hearing the parties and on perusal of the materials available on record, passed the impugned judgment and order dated 30.4.2010 allowing probate of the Will in question. This judgment and order passed by the learned probate court has been challenged in the present appeal.

5. I have heard Mr. S.K. Goswami, learned counsel for the appellant and Mr. A. Barkataki, learned counsel for the respondents.

6. After hearing the learned counsel for the parties and on perusal of the materials on record including the respective pleadings of the parties and the evidence led by them the following points for determination seem to arise in this appeal :

(a) Whether the probate petition was duly and properly filed in accordance with the procedure prescribed by law as well as fundamental principles of judicial procedure?

(b) Whether there are suspicious circumstances attending the execution of the Ext.1 Will and if so, whether the propounder has succeeded to dispel these suspicious circumstances by leading appropriate evidence?

7. Before deciding the aforesaid points for determination it is necessary to have an appraisal of the evidence led by both sides. Propounder was examined as PW1. She proved the Will in question as Ext. 1 and the death certificate of the testator as Ext.2. Her examination-in-chief was submitted under order XVIII, rule 4 of the Code of Civil Procedure in the form of an affidavit. She has stated in the said affidavit that before his death, testator used to live in his permanent residence at Nagaon Town. However, she is a permanent resident of Guwahati. According to her, she was informed about the Will when her father visited her Guwahati residence after execution of the Will. She claimed that a certified copy of the Will was handed over to

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