The propounder of a will must prove its proper execution, attestation, and that it is the last will of a free and capable testatrix. In the presence of suspicious circumstances, the propounder must explain them to the satisfaction of the Court. If the propounder fails to do so, an adverse inference can be drawn against them. The Court will grant probate only if all legitimate suspicions are completely removed.

( 1 ) THIS appeal has been filed under Section 294 of Indian Succession Act. Vijai Kumar Banerjee, the appellant has challenged the order of Court below granting probate of will dated 11-1-1988 executed by his mother Smt. Bang Laxmi in favour of respondent No. 1 namely Arun Kumar chakrawarti. Shri Arun Kumar Chakrawarti is sisters son of the testatrix, namely Smt. Bang Laxmi, of the will in question.

( 2 ) SMT. Bang Laxmi Banerjee (hereinafter to be referred as testatrix) an aged lady died on 16th January, 1988. She was hospitalised on 22nd December, 1987. During her hospitalisation she executed the disputed will on llth January, 1988 and expired on 16th January, 1988. The respondent no. 1 on 26th October, 1988 file the petition for grant of probate of will dated llth January, 1988. Smt. Bang Laxmi banerjee was survived by 8 children as mentioned in the disputed will. She bequeathed some property including a residential house and tenanted shop in favour of the respondent no. 1. By the will she divided and bequeathed the remaining property to her other sons and daughters. The respondent not 1 applied for grant of probate of the aforesaid will with allegation that the aforesaid will is the last will of the testatrix.

( 3 ) THE said proceeding was contested by the present appellant on the allegation disputing the execution of the will in question by the testatrix. It was stated that she died at the age of 75 years and was not in a fit mental state to execute the will in question nor she had executed the said will. It was also stated that she executed the registered will dated 21st March, 1980 in favour of the objectors and the will dated 11-1-1988 is forged and fabricated document. Shri Arun kumar Chakrawarti is mothers sisters son and Smt. Bang Laxmi Banerjee had two sons and as such there was ho question of executing any will in favour of Shri Arun kumar Chakrawarti. Moreover the deceased smt. Bang Laxmi Banerjee has been survived by two unmarried daughters also and it is responsibility of the objector-appellant to get them married. The Court below granted the probate of the disputed will on the finding that the applicant has proved the due execution as well as attestation of the will and has further proved that the testatrix was of free and sound disposing mind at the time of executing the will. Challenging the judgment of the Court below the present appeal has been preferred by the son of Testatrix.

( 4 ) HEARD the learned counsel for the parties and perused the record. It was submitted on behalf of the appellant that the findings of the Court below that the propounder of the will has explained the suspicious circumstances as well as that the will was duly executed and attested by Smt. Bang Laxmi banerjee with her free will and sound disposition of the mind are perverse findings and are against the material on record. In contra the counsel for the respondent submitted that the testatrix was managing the property and her affairs being the owner, it was open for her to dispose of the property in the manner she liked. She disposed of the property through the disputed will in exercise of her right being owner of the disputed property.

( 5 ) I have given careful considerations to the respective submissions of the counsel of parties and perused the evidence as well.

( 6 ) ON behalf of the propounder of the will only one witness was examined. The statement of Shri Shailesh Kumar Misra one of the attesting witnesses has been recorded. It is strange to note that the propounder of the will namely the respondent No. 1 could not dare to come in the witness box. No other witness was examined. Shri Shailesh Kumar misra stated that he was called by the testatrix on 11th January, 1988. He visited the hospital and Smt. Bang Laxmi Banerjee testatrix expressed her desire to execute a will in favour of her six daughters and two sons and the propounder of the will. A typed paper was already there. On this typed paper smt. Bang