JUDGMENT :

GAUTAM KUMAR CHOUDHARY, J.

Heard, learned counsel for the parties.

1. The instant Misc. Appeal has been filed under Section 299 of the Indian Succession Act, 1925 against the grant of probate in favour of Respondent No.1–Bhawani Devi in Title Suit No.01 of 2008 [arising out of Probate Case No.01/2004].

2. As per the case of the applicant / Respondent No.1 [Bhawani Devi], Registered WILL was executed on 22.11.2000 by Biru Raut, who was her father-in-law with respect to property in the schedule of the WILL, measuring an area of three kattha, Plot No.362, Ward No.5, Jamabandi No.33/ 27 of Dumka Town.

3. Altogether 14 defendants were arrayed as a party(s), out of them, defendant Nos.1 to 6 are sons of the Testator, defendant no.7 is the wife of one Brajadhan and defendant Nos.8 to 14 are the heirs and descendants of Rabi Mahto.

4. The grant of probate was contested before the learned Trial Court by defendant Nos.2 to 6 and defendant Nos.8 to 14, inter-alia, on the ground that the said WILL was forged and fabricated document as the Testator was 90 years of age at the time of alleged execution of the WILL.

5. Testamentary capacity of the Testator to dispose of the property through WILL has also been questioned in the objection.

6. On contest, the probate case was converted into a Testamentary Suit and the following issues were framed :-

(i) Is the probate case is maintainable in its present form?

(ii) Whether Will dated 22.11.2000 alleged to be executed by one Biru Rout is valid and genuine?

(iii) Whether the properties covered under Will dated 20.11.2000 was joint family property of Biru Rout along with opposite parties and others?

(iv) Whether executant Biru Rout has any right to execute the Will in respect of suit land?

(v) Is the plaintiff entitled to get the said will probated?

(vi) Is the plaintiff is entitled to any relief as claimed for?

7. Altogether five witnesses were examined including the attesting witness (P.W.3- Lakhi Narayan Mandal) and scribe of the WILL i.e. P.W.2 (Sumeshwar Nath Singh).

8. The signatures of the attesting witnesses, Sumeshwar Nath Singh (P.W.3), Lakhi Narayan Mandal (P.W.2) and Krishna Chandra Mandal (P.W.4) on the WILL were proved and marked as Ext.1/1, Ext.1/2 and Ext.1/3.

9. Apart from this, the certified copy of the sale-deed No.2175 /1981 by which the land, in question, was acquired by the Testator has also been adduced and marked as Ext.3.

10. Learned Trial Court recorded a finding in favour of the legatee and consequently, the probate was granted vide order dated 17.03.2010 which is under-challenge in the instant Misc. Appeal.

11. Learned Sr. Counsel for the appellants while assailing the impugned judgment has submitted that the contents of the WILL has not been proved by any of the witnesses. Further, anchor-sheet witness of the applicant are A.W.2 (being a deed writer) and A.W.4 (being a typist) and both of whom are the attesting witnesses in the present case.

12. It is further submitted that A.W.2 has deposed in his examination-in-chief that the draft of the WILL was prepared on the instruction of the Testator. However, in his cross-examination at Para-3, it has been deposed by him that he does not know the Testator personally. Similar is the statement of the A.W.4 (being a Typist) as stated in Para-4 of his cross-examination. The testimonies of these witnesses create cloud on the execution of the WILL in a free and disposing state of mind. There is another witness, P.W.3- Lakhi Narayan Mandal who has stated that contents of the WILL has not been proved on his presence.

13. It is argued by learned counsel for the Respondents that attesting witness (A.W.2) has deposed that the draft of the WILL was prepared in his presence and was duly registered. It has also been deposed by him that the LTI mark was affixed by the Testator on the WILL in his presence as well as in presence of the Registrar. The identifier of the Testator has been examined as A.W.3 [Lakhi Narayan Mandal].

14. Having considered the su