The court upheld the validity of the Will despite the exclusion of a natural heir, finding no suspicious circumstances or evidence of mental incapacity.

1. The present first appeal has been filed against a judgment and decree granting probate in favour of Shri Partha Das alias Chandan Das, the propounder of the last Will and Testament of Smt. Sribani Das alias Sibani Das. The challenge has been preferred by Smt. Ratna Das, the daughter of the testatrix. The husband of the testatrix predeceased her and the testatrix left behind as heirs one son (the original respondent) and daughter (the appellant). The beneficiary and the Executor of the Will was the original respondent - son. The respondent having expired during pendency of the appeal, his heirs and legal representatives have been substituted as respondents.

2. Learned counsel for the appellant argues that the execution of the Will is by suspicious circumstances. One of the attesting witnesses and the scribe of the Will did not depose to prove the execution of the Will. The Will was also found from the possession of the propounder. There is no whisper in the Will about the existence of the daughter of the testatrix and / or any justification for depriving her from the bequest.

3. It is argued that although the testatrix was illiterate, the Will does not contain any statement as to the contents of the same being readover and explained to her.

4. It is argued that the scribe of the Will, being a lawyer, ought to have been brought as a witness to prove the execution of the Will.

5. Although the P.W.1 Bhola Roy, one of the attesting witnesses, stated that the Will was registered in his presence, in his cross - examination the said witness admitted that he does not know whether the Will was registered.

6. One of the properties of the testatrix was not mentioned in the Will, as admitted by the propounder / P.W.2 in his cross - examination.

7. P.W.2, in his cross - examination, further admits that he does not recollect whether the contents of the Will were read over and explained to the testatrix. The strained relation between the testatrix and her daughter were also admitted, which was used by the propounder to his advantage.

8. Learned counsel cites Bharpur Singh and Ors. v. Shamsher Singh , reported at AIR 2009 SC 1766 , where illustrative examples of suspicious circumstances were set out. One of those was that the disposition is unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason. The propounder taking a prominent part in the execution of the Will is also one of such circumstances which taints the Will in the present case, it is contended.

9. Learned counsel appearing for the respondents controverts such arguments and submits that the circumstances of the testatrix and her position in society have to be looked into and a pragmatic approach taken while ascertaining whether the execution of the Will was surrounded by suspicious circumstances. In the present case, the testatrix was the wife of a tea stall owner. It is argued that the toiling masses have an affinity for their son while making a bequest of their property to the exclusion of a daughter who has been given in marriage and is otherwise established in life. It is argued that the court has to sit in the armchair of the testatrix for the purpose of ascertaining her mind, keepin