JUDGMENT
Bhaskar Bhattacharya, J.
1. This first appeal is at the instance of a caveator in the proceedings for grant of probate and is directed against the judgment and decree dated March 16, 2000 passed by the learned Judge, Special Court (E.C.Act)-cum-Additional District Judge, Burdwan in 0. S, Will Case No. 4 of 1991 thereby granting probate in favour of respondents.
2. The respondents herein filed an application for grant of probate of the alleged last Will executed by one Chandi Prasanna Mitra, the father of the respondent No. 1 and the husband of the respondent No. 2.
3. The said Chandi Prasanna Mitra died leaving widow, seven sons and five daughters of which three were married. By the Will, the estator excluded the eldest son and three married daughters from the legacy. In the Will the testator stated that the conduct of his eldest son, the appellant herein, towards him was not befitting that of a son and he was living separately elsewhere in the town of Burdwan. According to the terms of the Will, after the death of the testator, his widow would get all movable and immovable properties and should enjoy and possess those for whole life even with the right to transfer any part thereof according to her wishes and after her death, whatever would remain, would devolve upon his six sons excluding the eldest one and also upon the two unmarried daughters if they remained unmarried. The respondent No. l was directed to bear the marriage-expenses of the two unmarried daughters from the estate left by the testator and for that purpose he was also authorised to procure money by selling any part of the property. It was further provided that share of each of the unmarried daughters on her marriage should devolve upon the six sons, mentioned above and their successors and the other unmarried daughter, if any, in equal share.
4. The respondents herein applied for grant of the probate and the appellant, the eldest son having lodged caveat, the proceedings became contentious. In the written statement, the appellant specifically alleged that the Will in question was a forged and fabricated one created after the death of the testator and the writings appearing on the Will were not written by the testator.
5. At the time of hearing, one Jugal Prasad Basu Chowdhury, one of the attesting witnesses to the Will, one Supriya Chatterjee, a practising Lawyer of the Asansol Court, and the other attesting witness and the appellant No. l, one of the joint executors gave evidence in support of the grant of probate, while the appellant and one Tapan Kumar Roy, the handwriting expert appointed by Court figured as witnesses for the defence.
6. It may not be out of place to mention here that handwriting expert, the DW-1, however, supported the claim of the executors that the Will was written by the testator and the handwritings appearing in the Will tallied with those appearing from the admitted writings of the testator.
7. The learned Trial Judge, by the judgment and decree impugned herein, overruled the objections raised by the appellant and came to the conclusion that the Will was a genuine one and the same was duly attested and executed by the testator with full mental capacity.
8. Being dissatisfied, the caveator has come up with the present first appeal.
9. Mr. Mitra the learned advocate appearing on behalf of the appellant has at the very outset contended before us that the learned Trial Judge totally overlooked the fact that the testator and other members of his family had a very good relation with the appellant and his children as would appear from the different letters written by the testator and the respondent No. 1. According to Mr. Mitra, those letters falsify the allegation of the executors that the appellant had no good relation with his father or that his conduct towards his father was not befitting that of a son. Mr. Mitra contends that there was no earthly reason for depriving the eldest son and/or his children. Mr. Mitra further contends that in this case the executors have failed to discharge the initial burden of providing the fact that the alleged Will was a genuine one and that the same was duly executed and attested. According to him, the Will being unnatural, the learned Trial Judge ought to have held that the executors have failed to dispel the doubt as regards suspicious circumstances surrounding the execution of the alleged Will by which the eldest son of the testator was excluded from the bequest.
10. The aforesaid contentions of Mr. Mitra are seriously disputed by Mr. Kar, the learned advocate appearing on behalf of the respondents. According to Mr. Kar learned Court below on the basis of materials on record rightly arrived at the conclusion that the Will in question was a genuine one and there is no reason to disbelieve the witnesses deposed in this case on behalf of the executors. Mr. Kar, further contends that even the handwriting expert has opined that the writings of the testator appearing on the Will were identical with those appearing from the admitted documents executed by the testator. He, thus, prays for dismissal of the appeal.
11. After hearing the learned Counsel for the parties and after going through the materials on record we find that the Will in question is a holographic one executed on 15th August, 1977 and the testator died on November, 1982 long five years thereafter. It appears from the defence taken by the appellant that he never pleaded undue influence or lack of physical and mental capacity of the testator but his sole allegation was that it was a fabricated one. It appears from record that the Will is a holographic one fully written by the testator himself and there is also a draft of the self-same Will prepared fifteen days prior to the date of execution of the Will and the same was marked as Ext.3(A). The DW-1, the handwriting expert has in clear terms expressed his opinion that the handwritings appearing on the Will were identical with those of the testator appearing from other admitted documents produced by the appellant himself. After going through the depositions of the two attesting witnesses and the handwriting expert, we find no reason to disbelieve their testimony.
12. We are also unable to accept the contentions of Mr. Mitra that the Will was an unreasonable one. It appears from the contents of the said Will that the testator had at the first instance given everything to his wife for life with right to even the transfer any part thereof in case of necessity. He has given specific reason why he decided to exclude his three married daughters from the legacy. According to him, they were married and well-placed and there was no necessity to give anything to them. The testator was further conscious that two of his daughters were unmarried and that is why he made specific provision that if they remained unmarried, they would get the property and in the event they were married in future, their shares whould devolve upon six of his sons. In the Will, the testator has mentioned that the conduct of the eldest son was not good and he was living separately in the town of Burdwan. In evidence the appellant himself admitted that his father did not write any letter to him from 1969 till 1977, the time of execution of Will. Therefore, it is clear that father had no connection with the appellant eight years prior to the date of execution of the Will. He has further admitted that in his childhood, he ran away from his house along with his friend and ultimately, his lather found him out. He passed matriculation examination in the year 1943 and within three years got married in 1946. As he was an employee of the South-Eastern Railway, he was posted in different places. Although, he had denied the suggestion that he had no good relation with his father because he married of his own choice and against the Will of his father, it is apparent that he was from the very beginning not an obedient child of his father and within three years of passing of matriculation examination, he married and all along stayed away from his father.
13. It is now settled law that even if a testator due to the reason best known to him without just cause deliberately deprives one of his heirs that cannot be a ground for not granting probate if the Will is found to be a genuine one and an outcome of free Will of the testator.
14. We are unable to accept the contentions of Mr. Mitra that the Will was unreasonable one and having regard to the fact that the appellant was from an early age in service, well-established and was staying away from his father, he decided to exclude him. It is admitted that father had not written any letter to the appellant at least from 1969.
15. Be that as it may, we have no reason to disbelieve the witnesses appearing on behalf of the respondents and also the deposition of the handwriting expert regarding genuineness of the Will. We have already pointed out that the plea of undue influence or lack of understanding the contents of the Will was never put forward as defence by the appellant. The Will being a holograpahic one, we are unable to accept the contentions of Mr. Mitra that the said Will consisting of so many pages was fabricated by a different person when a draft in the handwriting of the testator has also been marked as Exhibit.
16. On consideration of the entire materials on record, we find that in the fact of the present case the learned Trial Judge rightly granted probate of the said Will and we do not find any reason to interfere with the said findings.
17. The appeal is, thus, devoid of any substance and is dismissed. In facts and circumstances, there will be, however, no order as to costs.
Sadhan Kumar Gupta, J.
18. I agree.