1. This appeal under section 299 of the Indian Succession Act, 1925 has been preferred challenging the probate granted by the learned Additional District Judge, Cachar, Silchar in Testamentary Suit No. 26 of 1988 by the impugned judgment dated 14.10.1999.

2. Three legal heirs of Late Dilip Ranjan Dhar filed an application under section 276 of the Indian Succession Act before the learned Additional District Judge, Cachar at Silchar on 6.1.1988 leading to registration of Misc. (Probat) Case No. 8 of 1988. Of course in the petition, deceased Dilip Ranjan Dhar was shown as petitioner No.1. In the application, the name of near relation of the testatrix were mentioned at para 9 as Sri Sankar Dhar Son of Late Dhirendra Dhar, Sri Nantu Dey, Son of Late Nagendra Ch. Deb and Smt. Babul Bala Deb, widow of Late Kiran Deb. It was stated in the application that Prabashini Dey who was the wife of Late Sachindra Mohan Dey had executed a registered Will on 16.11.1967 bequeathing all her properties in favour of her brother Dilip Ranjan Dhar. This beneficiary of the Will pre-deceased the testatrix. Subsequently, on 23.5.1982, the testatrix also died issueless. About six years after her death, the application for probate was filed by the legal heirs of deceased beneficiary of the Will praying for probate thereof. The near relation of the testatrix mentioned above submitted objection questioning the legality and validity of the Will, genuineness thereof etc. In para-2 of the written objection, it was claimed that the probate application is barred by limitation. It is necessary to mention here that in probate application referred to above there was no explanation as to why the same was not presented within 3 years of arising of the cause of action upon death of the testatrix. However, it was stated in para 11 thereof that petitioner had earlier filed Misc. Case No.14 of 1983 for grant of probate leading to registration of Misc. Case No. 14 of 1983 but the same was dismissed for default on 4.9.1986. It is not mentioned as to why in spite of seeking remedy for restoration of the application, a fresh application was filed nearly after expiry of six years from the date of death of the testatrix. Be that as it may, no issue was framed on the point of limitation and the learned court having found that the application under section 276 of the Indian Succession Act had already been opposed, got the same converted into Testamentary Suit No.26 of 1988 by operation of section 295 of the Indian Succession Act. The learned court framed as many as six issues and relegated the parties to lead their respective evidence. The issues framed by the learned trial court are quoted below :

(i) As the petition for probat filed according to the provision of law?

(ii) Whether the present proceeding is bad for waiver, estopel and acquiescence of the petitioner?

(iii) Whether the present case is bad for defect of valuation of the deceased?

(iv) Whether the property of the deceased properly described in the alleged Will and probat petition?

(v) Whether the disputed Will has been executed by Pravisini Dey, during her life time and, if so whether the same was voluntarily executed by her with free consent?

(vi) To what relief, if any, petitioner is entitled?

3. Petitioner appeared to have examined five witnesses including three attesting witnesses and the son of the scribe. The defendants on the other hand examined two witnesses. After perusal of the materials brought on record by way of evidence, the learned trial court was satisfied that the Will was duly executed by the textatrix in favour of Late Dilip Ranjan Dhar being in sound and disposing state of mind. In arriving at this finding, the learned trial court has considered the deposition of the attesting witnesses and the deposition of the son of scribe who identified the handwriting of his father. This judgment dated 14.10.1999 has been brought under challenge in the present appeal.

4. I have heard Mr. H.A. Sarkar, learned counsel f

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