JUDGMENT :

REETOBROTO KUMAR MITRA, J.

1. The appeal is from a judgment and decree dated 19th January, 2007 passed by the Additional District Judge, 2nd Court, Murshidabad. The impugned judgment and decree proceed to grant probate of a will of one Mahadeb Lal Show (hereinafter the testator).

2. The facts pertaining to the grant of probate in Title Suit No. 14 of 1991 are fairly simple, except for its rather long and unexplained pendency in Court.

3. Mahadeb Lal Show, a fairly wealthy resident of Khargra Dewanganj of Berhampore in the district of Murshidabad, passed away on 20th October, 1962, leaving behind him his two wives, Rajlakshmi Show and Dayamoyee Show. Mahadeb Lal Show had two sons and two daughters with Rajlakshmi and one son with Dayamoyee.

4. Mahadeb Lal Show had executed a will on 15th October, 1960, appointing Kalipada Show and Bishnupada Saha as the executors. Surprisingly, neither Kalipada Show nor Bishnupada Saha made any endeavor to file an application for grant of probate of Mahadeb’s will even though they were the executors.

5. In the circumstances, Kartick, the elder son of Mahadeb from Rajlakshmi, filed a probate petition in 1975, which, however, due to efforts and endeavors between the brothers and sisters to amicably resolve the disputes, did not see the light of a final adjudication and was indeed dismissed as withdrawn.

6. The second application for probate was instituted in 1989, once again by Kartick. Upon declaration of the said probate application as a contentious cause, the same was numbered as TS 14 of 1991 before the Court of the learned District Judge, Murshidabad and was thereafter transferred to the Additional District Judge, Murshidabad.

7. The reasons for the probate application becoming a contentious cause were that Santosh, Saraswati and Sadhana, the other three children of Mahadeb from Rajlakshmi and the siblings of Kartick, opposed the grant of probate.

8. Written statements were filed and the execution of the will by Mahadeb was challenged.

9. The usual grounds of challenging the execution of the will were duly raised, which may be summarised as under:-

a. The testator did not have the mental capacity to execute the will.

b. The will was manufactured and fabricated.

c. The will had been executed by the testator, not of his volition but upon domination by Kartick.

d. A further point had also been raised that the properties bequeathed by the will were not the properties of the testator but belonged to a coparcenary, since Mahadeb was governed by the Mitakshara School of law.

10. The defendants before the learned trial court raised certain issues other than the issues already mentioned, that is, the execution of the will was made in suspicious circumstances. Instances of such suspicious circumstances are as under:-

a. The signature of the testator appeared to be shaky.

b. Uneven distribution of properties amongst the children.

11. Having considered all of these arguments raised, the learned trial Court proceeded to pass a judgment and decree holding that the defendants had failed to prove their allegation that the will was forged and/or fabricated as there was no evidence in this regard led by the defendants.

12. The point of limitation was also raised, which did not find favour with the learned Judge.

13. Evidence was led by both parties in great detail and several documents were exhibited, including the will. As it appears from the documents other than the will of 15th October, 1960, (Exhibit 1) two other documents were exhibited which are of great relevance. The first of such documents is a deed of gift executed by the testator in favour of his second wife Dayamoyee (Exhibit 3). The second document is a gift deed of 26th December, 1963 executed by the sons and daughters of Rajlakshmi, that is the propounder and the defendants in the suit as well as by Rajlakshmi herself, in favour of Dayamoyee (Exhibit 4).

14. During the pendency of the suit, Kartick, the original plaintiff, expired and had been substitute