Nishita Mhatre, J.—Gobordhan Dubey died on 29th November, 1989 leaving behind his wife, four sons, and the wife and children of his pre-deceased son. Gobordhan Dubey allegedly executed a Will on 6th November, 1980 and his sons Bindeswari, Lakhu and Prabhu Dubey were the executors of the Will. Prabhu Dubey, however, died prior to his father. After the death of Gobordhan Dubey, Bindeswari Dubey filed an application for probate of his father’s Will being Probate Case No. 13 of 1991. The application was contested by the other heirs of Gobordhan Dubey and was converted to O.S. No. 1 of 1995. Bindeswari contended in his plaint that his brother, Lakhu was in possession of the original registered Will of Gobordhan Dubey. He pleaded that despite repeated requests, Lakhu had refused to produce the original Will and therefore the plaintiff had submitted that application on his own for probate on the basis of a certified copy of the Will of Gobordhan Dubey.

2. The defendants, i.e., the other heirs of Gobordhan Dubey, by two separate written statements denied the existence of a Will executed by Gobordhan Dubey. They contended that it was because a civil suit had been instituted by them against the plaintiff, Bindeswari, that he created a story about the existence of a Will in order to frustrate the pending litigations between the parties.

3. The plaintiff, Bindeswari examined himself before the Court in support of his claim and also adduced the evidence of four other witnesses, two of whom were allegedly the attesting witnesses to the Will of Gobordhan Dubey. PW 2, an employee in the office of the District Registrar at Alipore, South 24 Parganas, was examined in order to prove the certified copy of the Will. PW 5 was the son of the advocate who allegedly drafted the Will of Gobordhan Dubey. Lakhu testified in the Court on behalf of all the defendants to rebut the evidence of the plaintiff.

4. The Trial Court, i.e., the Additional District Judge, Alipore, by his order dated 26th March, 2004 dismissed the O.S. No. 1 of 1995 and refused to grant the probate to the plaintiff. The Trial Court did not believe the version of the plaintiff that Gobordhan Dubey had executed a Will. On the basis of the evidence on record, the Trial Court concluded that the plaintiff was unable to prove that the Will was in the custody of defendant No. 2 - Lakhu Dubey. The evidence of PWs 3 and 4, the attesting witnesses, was disbelieved as there were too many contradictions in their testimonies. Moreover, the Trial Court observed that neither of the attesting witnesses had stated anything about the factum of the registration of the Will which the plaintiff in his testimony had mentioned. The evidence of PW 5, the son of the advocate who drew up the Will, has been regarded as “rubbish” by the Trial Court. This was because PW 5 claimed that he was also present when the Will was executed at the residence of Gobordhan Dubey. The Trial Court observed that none of the witnesses, examined by the plaintiff, had mentioned the presence of PW 5 in the room where the Will was executed. The certified copy of the Will had not been proved and the testimony of PW 2 who was an employee in the office of the District Registrar had failed to support the contention of the plaintiff. The Court observed that despite the fact the register had been produced in Court, the certified copy of the Will had not been proved and therefore could not be exhibited. This was because the witness had not brought any report from the District Registrar showing that his office had searched for the original Will and it was untraceable. The Court accepted the evidence of defendant No. 2 - Lakhu. He denied the existence of a Will of Gobordhan Dubey. Therefore, the Court came to the conclusion that the plaintiff had failed to establish that Gobordhan Dubey had executed a Will and dismissed the proceeding. Being aggrieved by the decision of the Trial Court, the plaintiff has filed the present appeal.

5. Mr.