The validity of a will hinges on its proper execution and the capacity of the testator, not merely on subsequent claims of incapacity or vague assertions.

JUDGMENT :

Gautam Kumar Choudhary, J.

1. This appeal is against the order passed in Probate Case No. 03 of 2005 by learned District Judge-II, Dhanbad under Section 276 of Indian Succession Act, by which the probate application has been dismissed.

2. As per the case of the Appellant/Applicant, Srimatiya Radha Debya @ Kusum Debya, daughter of Late Shashi Bhusan Goswami, and Wife of Late Basanta Goswami, executed her last WILL dated 03.09.2004 in favour of the Appellant.

3. After executing the said registered WILL, she died on 26.09.2004. The suit property was recorded in the name of Joginda Goswami and Haripado Goswami and the testatrix happened to be the paternal grand daughter of Joginda Goswami, whereas the respondents are the heirs and descendants of Haripado Goswami.Testatrix Srimatiya Radha Debya @ Kusum Debya had purchased the said suit land vide registered sale deed no. 15702 dated 02.09.1968.

4. The execution of the WILL was witnessed by Tarapado Gorai (P.W.-2), Sripati Goari (P.W.-3) and Raju Goswami.

5. Grant of probate is contested by defendant Lakhi Narain Goswami (since dead) who filed show cause before the Probate Court, inter alia, on the ground that testatrix Radha Debya @ Kusum Debya had not executed WILL in favour of the applicant, as she was ill since last few months before her death and was not mentally and physically fit in the month of September, 2004, when she died. Further objections have been raised on the right of the testatrix to bequeath the property.

6. Learned Probate Court framed the following issues: -

I. Is the case maintainable in its present form?

II. Is there any cause of action for the present case?

III. Is the alleged WILL executed by Smt. Radha Debya @ Kusum Debya of dated 03.09.04 in favour of applicant is valid?

IV. Is the alleged WILL dated 03.09.04 of Smt. Radha Debya @ Kusum Debya was the last WILL of the testator?

V. Has testator Radha Debya @ Kusum Debya made a WILL dated 03.09.04 voluntarily and in sound state of mind and body and without any influence?

VI. Is the applicant entitled for grant of probate of WILL as prayed for?

7. The probate application has been rejected mainly on the following grounds: -

(1) In cross-examination, applicant (P.W.1) stated that he had told the deed writer what should be written in the WILL, which showed that the WILL was prepared on the dictation of the beneficiary and not as per instruction of the Testatrix, and that WILL was not prepared voluntarily in sound state of mind.

(2) The said WILL is said to be executed on 03.09.04 and Radha Debya died on 26.09.04, so, after 23 days of the execution of the alleged WILL and it has come in the evidence of the witness of Opposite Parties that Radha Debya was ill and bed ridden six months before her death and she was unable to walk and speak.

(3) The attesting witnesses of WILL i.e., P.W.2 and P.W.3 were in inimical relation with the O.P.

8. It is argued by the learned counsel Mr. Bhaiya V. Kumar, on behalf of the appellant that learned Probate Court misdirected itself while rejecting the application of probate for registered WILL, by taking into consideration extraneous factors into account. The uncontroverted evidence adduced on behalf of the plaintiffs, established that the deceased was living under the care and protection of the applicant. As the deceased was Bengali speaking woman, therefore, it was but natural for the applicant to translat