IMPORTANT POINTS
(1) Fill the lacuna - The parties are not allowed to fill the lacuna at the appellate stage. It is against the spirit of the provision to allow a party to file additional evidence without fulfilling of either of the three conditions mentioned in Rule 27.
(2) Appellate Court - Under the scheme of Code of Civil Procedure, 1908 whether oral or documentary, it is the trial court before whom parties are required to adduce the evidence but in three exceptional circumstances additional evidence can be adduced before the appellate court.

JUDGMENT

Krishna Rao, J.—This is an appeal directed against the judgment passed by the Learned Single Judge in T.S. No. 3 of 2003 dt. 19th August, 2015 which was further corrected on 9th September, 2015.

1. Introduction with brief outline:—

(a) The respondent Dhananjoy Bhar had initially preferred an application before the Learned Single Judge being PLA No. 190 of 2001 for grant of probate of the last Will and testament dt. 1st December, 1999 executed by the Testator Dulal Chandra Bhar, since deceased. In the said application, the respondent had stated that the father Dulal Chandra Bhar had appointed the appellant and respondent herein as executors of the said last will and testament being the sons of the testator but the appellant being the one of the executor was not interested to act as an executor and thus the respondent has filed the said application.

(b) In the said application, it was further stated that the father (testator) died leaving behind his wife, two sons and three daughters but the respondent unable to obtain consent from the other legal heirs of the testator.

(c) After filing of probate application, the mother Smt. Urmila Bhar, daughters namely Dipti Paul, KumKum De, Ruma Sen and the appellant Amit Bhar have filed their respective affidavits in support of their caveat by objecting for grant of probate as prayed for by the respondent.

(d) On receipt of the affidavit in support of caveat from the caveators, i.e the other legal heirs of the deceased Dulal Chandra Bhar, the Learned Single Judge had converted the probate application to Testamentary Suit and was numbered as T.S. 3 of 2003.

2. Pleadings of the Parties

(a) The mother of the appellant and the respondent namely Smt. Urmila Bhar had filed an affidavit wherein she stated that her husband and his brother used to carry on Palm Candy Business initially under the name and style of “Dulaler Tal Michri” which they have inherited from their father and subsequently her husband started independently Palm Candy Business in the year 1980 as per the order of this Court under the name and style of “Dulal Chandra Bharer Tal Michri”. She has also stated that her husband had also other businesses in which she and her two sons were the partners/share holders and apart from the aforementioned proprietorship business, there is a company by the name of Sanjay Himghar Private Limited situated at Rasidpur, Hooghly in which all of them owned their number of shares.

(b) She has further stated that by the reason of the purported Will, two of the major business have been given to her elder son (the respondent herein) due to which she and her younger son have become minority in business and virtually her elder son has become the owner of the businesses. She further stated that in the purported Will she was not given even a living right in respect of the premises no. 3A, Duff Lane, Kolkata in which the dwelling house of the Bhar family are residing.

(c) She had further stated that her husband on many occasions had informed her that he will divide his assets equally between three sons and would make adequate provisions for her upkeep and wellbeing. She had further stated that her husband on number of occasions had stated that suitable provisions for the daughters as well as grand children through his sons and daughters will be made.

(d) She has further stated the relationships between all of us were quite cordial and her husband had lot of love and affection for his children and grandchildren. She has also stated that her husband for quite sometimes prior to his death was suffering from various ailments like hypertension, high blood sugar, renal and cardiac problems and was frequently admitted to the nursing home. She has further stated that the so called purported Will dated 01.12.1999 is unnatural and there was no intention of her husband to make the said Will.

(e) The daughter Dipti Paul has also filed her affidavit wherein she had objected to the Will and stated