JUDGMENT :

1. Heard the parties.

2. This miscellaneous appeal is directed against the judgment dated 19.05.2006, passed by the District Judge, Deoghar in Title (Probate) Suit No. 2 of 2005 whereby and where under the learned court below has not granted the Probate of the Will.

3. The case of the plaintiff-appellant in brief is that the testator – Dinabandhu Mitra executed an unregistered will on 17.08.2001 in favour of his son –Bikram Kumar Mitra, the defendant no.1. It is further the case of the plaintiff that Dinabandhu Mitra executed the said Will in his full sense and under sound state of mind. Dinabandhu Mitra died on 11.10.2002. The Will was executed by Dinabandhu Mitra in his own writing, in presence of the witnesses who put their signatures as attesting witnesses after the Will was signed by the testator- Dinabandhu Mitra and accordingly a prayer was made by the plaintiff was the executed under the Will, for grant of probate in favour of the defendant no.1 with respect to the Will executed by the testator –Dinabandhu Mitra. The defendant nos. 2, 4, 5, 8 & 9 filed their written statement contending therein that Dinabandhu Mitra, during his life time transferred the major portions of the property in favour of Bidroh Kumar Mitra, Bikram Kumar Mitra and the defendant nos. 2, 4, 5 & 9 by way of a registered deed of gift and they averred that the widow of Dinabandhu Mitra namely Menka Rani Mitra was living with her elder daughter namely Santana Mitra after the death of the testator. They supported the case of the plaintiff that Will has been executed in sound state of mind but since their elder brother –Biplav Mitra was never loyal to his parents or other members of their family and married with Sikha Mitra against their will and Biplav Mitra and his wife Sikha Mitra tortured Dinabandhu Mitra by filing several cases, therefore, Dinabandhu Mitra executed the said Will depriving Sikha Mitra and her children of any share from his property. The defendant no.1 supported the averments made in the pleadings of the plaintiff. The contesting defendant being the defendant nos. 6 & 7 in their written statement pleaded that no such Will as claimed by the plaintiff and other defendants has been executed by the testator – Dinabandhu Mitra and the said unregistered Will is a forged one. They also pleaded that Dinabandhu Mitra has already executed some registered deed and major portions of the property known as Indu Bhawan are the subject matter of those gift deeds. Therefore, no Will can be executed in respect of the properties which have already been transferred by way registered gift deed in favour of the sons and daughters of the testator. They also pleaded that Dinabandhu Mitra was suffering from heart disease since the month of January, 2001 and he was admitted in hospital and after transplantation of pace-maker, he was discharged from the hospital and Dinabandhu Mitra was never in sound state of mind at the time of execution of the Will and he was under complete bed rest. Hence, they opposed the grant of Probate of the Will.

4. On the basis of the rival pleadings, the learned court below framed the following two issues :

(i) Whether the present application for probate in its present form is maintainable or not?

(ii) Whether the Will in question is genuine and executed by the deceased Dinbandhu Mitra in sound state of mind without any undue influence or coercion?

5. The learned court below took up issue no.ii first and after considering the fact that the Will is incomplete, as though in the recital of the Will, it has been mentioned that portion of one unit of the complex has been gifted to his son and daughters and a complete plan of the Indu Bhawan annexed with the Will showing divisions but no such plan has been annexed. Similarly though in para-1 of the Will, it was mentioned that double storied house under holding no. 252 of Madhupur Municipality together with adjoining land has been gifted to second daughter Ms. Santana Mitra b