A Will requires mandatory proof of execution by at least one attesting witness. Where an attesting witness denies the execution or the Will is surrounded by suspicious circumstances, registration alone does not suffice as proof, and secondary evidence is required to establish its authenticity.

JUDGMENT :

1. Despite service of notice, the respondent is not represented.

2. The appeal is directed against a judgement and decree dated 11th April, 2014 passed by the learned Additional District Judge, 13th Court at Alipore in O.S. No.6 of 2010. By the impugned judgement and decree, the Trial Judge dismissed the suit filed by the appellant/propounder of the last Will and testament dated 26th September, 2005. The said purported will is of one of the three wills executed by the testatrix Pari Devi.

3. The appellant/plaintiff, the propounder, is the one of the two brothers of the alleged testatrix. He had filed an application for grant of probate under Section 276 of the Indian Succession Act Of 1925 registered initially as Act XXXIX Case No.46/09 (P).

4. On the aforesaid application being cited, the first class of natural legal heirs of the deceased testatrix namely her husband Moni Mohan Sanpui and daughter Dipa Roy (Nee Sanpui) entered appearance and denied the claims of the applicant/appellant. Case no. 46 of 2009(P) having become contentious was converted into O.S. No.6 of 2010.

5. A formal plaint was filed by the applicant/appellant, in paragraph no. 10 whereof, he claimed to have deposited the original Will in Court. This was contrary to the averments made in the Application under 276 (supra), that the original Will was lost. The plaint was subsequently amended whereby the appellant reverted back to his original contention that the original Will was lost from his custody during a bus ride. A complaint was registered with the concerned police station, which was recorded in a General Diary.

6. The plaintiff/appellant’s contended in the Trial Court, the Will was witnessed by P.W.-2 namely Arun Halder and the defendant No.1, Moni Mohan Sapui, husband of the testatrix.

7. The plaintiff/appellant examined himself and his brother Arun Halder as P.W.-1 and P.W.-2, respectively. The Defendant No.1, the alleged first attesting witness to the Will, examined himself as D.W.-1. The plaintiff, in addition to P.W.-1 and P.W.-2, examined P.W.-3 who was a clerk from the Registry Office, where the purported Will was registered. Admittedly, P.W.-3 was not posted at the said Registry Office when the Will was originally registered, and thumb impressions of the testatrix were taken in terms of the Rules prescribed under the Registration Act.

8. While P.W.-2 stated that the Will was signed in his presence and in the presence of D.W.-1, whereafter both of them put their signatures on the said Will, D.W.-1 clearly denied having signed on the original Will. He also denied that his wife at all executed any such Will.

9. It is also an admitted position that the scribe of the Will, who typed it in the Bengali vernacular, was not examined by the plaintiff. It is equally an admitted position that the said scribe was personally well-known to the defendant No.1.

10. The Trial Judge wholly disbelieved the plaintiff’s case and found suspicious circumstances in execution of the Will in question. The Trial Judge found a flip-flop by the plaintiff/appellant.

11. Admittedly the certified copy of the will exhibited in the Court below did not contain the signature of the testatrix. The execution of the will by the testatrix