JUDGMENT

Date : 06-10-2021 Mr. D. Laji, learned counsel for the appellant and Mr. M. Pertin, learned senior counsel for the respondent No.1 have been heard on 05.10.2021 and the matter has been listed today for pronouncement of judgment. Accordingly, judgment is dictated in the open Court.

2. The respondent Nos. 2 to 5 have not contested the case, though, notice on respondent Nos.3 & 5 was served by registered post and to the respondent Nos. 2 & 4 by dasti service, as indicated in the Office Note dated 01.06.2017, 12.06.2017 and 15.03.2019, respectively.

3. The learned counsels appearing for the parties also submits that respondent Nos. 2 to 5 did not contest the case in the Trial Court.

4. This is an appeal filed under Section 299 of the Indian Succession Act, 1925, against the judgment & order dated 14.02.2017, passed by the learned Additional District Judge, West Sessions Division, Basar, in Bsr/Probate Petition No.02/2014 and the connected Misc. Case No.08/2016 and Misc. Case No.09/2016.

5. Late Senmo Riba (hereinafter referred to as “Testator”), who died on 10.09.2010, had executed a Will dated 03.09.2010 in respect of the properties described therein, in favour of the appellant as well as the respondent Nos. 1 to 5. The appellant is the wife of the Testator; the respondent Nos.1 to 4 are the sons of the Testator and the respondent No.5 is the grand-son of the appellant and son of the respondent No.2.

6. The appellant had filed a Probate petition No. 02 of 2014, before the Additional District Judge, Basar, praying for grant of probate in favour of the appellant, on the basis of Will dated 03.09.2010, executed by the Testator. The respondent No.1 had filed objection in the Probate Petition contending, inter alia, that it was not possible on the part of the Testator to execute the Will dated 03.09.2010, as he was not in a fit heath condition to execute the Will, alleged to have been executed on

03.09.2010.

7. On the basis of the rival pleadings in the Probate petition, the Trial Court on 23.06.2014, had framed as many as 5(five) Issues for determination, which are as follows:

(i). Whether the deceased Lt. Senmo Riba, the Testator executed a rd Will on 3 Sept’ 2010?

(ii). Whether the Testator was in a fit condition to execute the Will?

(iii). Whether the signature of the Testator on the Will is genuine?

(iv). Whether the Testator could transfer the land through Will, which was not in his name?

(5). Any other relief/reliefs the parties are entitled for?

8. On a Misc. Case No.122/2014 filed by the respondent No.1, by an order dated 22.09.2015, 2(two) additional Issues were framed, which are as follows:

(i). Whether the specimen signatures in SBI account No. 11585576826, Aalo and the signature of Lt. Senmo Riba in the Will deed dated 03/09/2010 is signed by Lt. Senmo Riba himself?

(2.) Whether both the signatures are signed by the same person?

9. The respondent No.1 thereafter, had filed a Misc. Application No.124/2014 praying for seeking an opinion of the Handwriting expert, which was allowed by the Trial Court, vide order dated 16.02.2016, whereby signature of the Testator contained in the Will dated 03.09.2010 and the signature of the Testator contained in his SBI account No. 11585576826, Aalo, was sent to the Forensic Science Laboratory, PTC Banderdewa, for its opinion, the report of which was submitted vide a letter dated 29.02.2016, by Shri. Subrata Das Gupta, Scientific Assistant, Forensic Science Laboratory, PTC Banderdewa. By another order dated 07.06.2016, on an application filed by the respondent No.1, the learned Court below had summoned the Chief Manager of SBI, Aalo Branch as well as Shri. Subrata Das Gupta, Scientific Assistant, Forensic Science Laboratory, PTC Banderdewa for examination of these persons as Court witnesses. After the FSL report dated 29.02.2016 was received, the trial Court had passed an order dated 28.04.2016, wherein, it has recorded that the Forensic Science Laboratory, PTC Banderdewa, had answered the main i