JUDGMENT
Pravendu Narayan Sinha, J.
1. This appeal is directed against the judgment and decree dated 18th May, 1989 passed by the learned Additional District Judge, 1st Court, Hooghly in Probate Suit No. 15/1984 thereby allowing the probate suit and granting probate in favour of the respondent propounders of the Will of late Prasanta Kumar Dutta.
2. The respondents as propounders filed the abovestated suit for grant of probate under Section 276 of the Indian Succession Act and also as executors of the Will and testament executed by their uncle Prasanta Kumar Dutta (since deceased) on 23.2.81. In their application for grant of probate which was converted into a suit it was disclosed by them that the testator Prasanta Kumar Dutta was full blood brother of their father late Anil Kumar Dutta of 43, Dharmatala Lane, Bhadrakali within P.S. Uttarpara. The testator made the said Will on 23.2.81 in favour of the two propounders and their brothers namely, Sekhar Kumar Dutta, Asis Kumar Dutta and Paramesh Dutta and bequeathed his entire properties as described in schedule A of the petition. The testator was a bachelor and he left behind his two brothers namely, Sisir Kumar Dutta, Dilip Kumar Dutta and one sister namely Sovona Basu. No other application was made by anybody in any Court in India for obtaining probate of the said Will or for letters of administration in respect of estate of testator. It was also contended by the propounders that they have incurred Rs. 6,000/- as expenses for the funeral and sradh ceremony of the testator.
3. The appellant as caveator contested the said suit by filing written statement denying therein all material averments of plaint. He inter alia contended that the Will is not a genuine one and it was procured by coercion, misrepresentation, fraud and undue influence on the testator. The testator was suffering from cancer and was being treated as indoor patient in PG Hospital but one of the propounders, namely. Sankar Kumar Dutta, executing risk bond obtained discharge of the testator from hospital and took him away to house without consulting other brothers of testator or any other relative. The Will was executed within a fortnight from date of return of the testator from hospital and 45 days before his death. The testator had great respect upon the O.P.’s father and other brother Dilip Kumar Dutta but, they were not given anything in the said Will and it establishes that at the relevant time of execution of Will the testator had no disposing capacity both mental and physical in respect of his properties. It was also alleged that the propounders have included in their claim the commuted value of the pension of the testator though it was not bequeathed in the Will and it shows that the Will was suspicious in nature.
4. On the basis of such pleadings of the parties the learned Trial Court framed six issues and thereafter, on consideration of oral and documentary evidence adduced by the parties and considering the evidence of the attesting witnesses of the Will allowed the suit and ordered that the propounders be granted probate of the Will of late Prasanta Kumar Dutta with a copy of the said Will subject to payment of probate duty. The said judgment and decree have now been challenged by the appellant in the instant appeal.
5. Mr. Banerjee, learned Advocate for the appellant first of all submitted that the Will is defective as it was not stated in the Will whether the property was bequeathed or gifted or in any other manner given to the propounders and provisions of the Succession Act were not followed. We are not at all impressed with this submission of the learned Advocate for the appellant and after going through the Will and its contents we find that in the Will it was specifically and clearly mentioned by the testator that as he was suffering from incurable disease and had become aged he was making settlement of the following properties in the following manner:
i) After my death my aforesaid brother’s sons namely Sarbasree Sankar Kumar Dutta, Sekhar Kumar Dutta, Bhabesh Kumar Dutta, Asis Kumar Dutta and Paramesh Dutta shall become owners of the entire movable and immovable properties including in holding No. 43, Dharmatala Lane under Uttarpara-Kotrang Municipality in absolute rights. It is my wish that after becoming owners of the aforesaid property in absolute rights they shall mutate their names in the Municipality and go on enjoying and possessing the aforesaid property down to their sons and son’s sons in succession.
(ii) Out of my brother’s sons mentioned above I hereby appoint Sri Sankar Kumar Dutta and Bhabesh Kumar Dutta as Executors to this Will and they shall act according to the provisions of this Will.
(iii) To this effect, in full possession of senses, and without being instigated and undue influence of others, I do hereby execute this Will in presence of these following witnesses.
6. If we appreciate properly the aforesaid terms and conditions of the Will it is clear that the testator bequeathed all of his entire movable and immovable properties in favour of sons of his eldest brother and made Sankar Kumar Dutta and Bhabesh Kumar Dutta as executors of the Will. We find no defect at all in the Will and it was a proper and valid Will and there was no violation of provisions of the Indian Succession Act.
7. Mr. Banerjee further submitted that the Will is suspicious as not a single relative was a witness of the Will. Mr. Banerjee contended that from evidence it transpired that the testator himself prepared the draft of the Will but, the said draft of the Will was not produced in Court during the hearing of the said case. According to him, though the testator had other brothers and sister and other nephews the Will is totally silent in respect of bequeath of any portion of property of the testator in favour of his other brothers, sister or nephews. He therefore, contends that it is clear from evidence that the propounders got discharge of the testator from hospital executing risk bond and brought him to home and the Will was prepared and executed within 14 days of coming to home by testator and such fact shows that the propounders and executors exerted coercion and undue influence on the testator and managed the Will.
8. After going through the evidence and materials on record we find no substance at all in the aforesaid arguments canvassed before us by the learned Advocate for the appellant. There is no law that at the time of execution and attestation of a Will one of the relatives of the testator must be present or must be an attesting witness. The law according to Section 63 of the Indian Succession Act only prescribes that at the time of execution and attestation of the Will there must be presence of at least two witnesses (there may be more than two witnesses) who would see the testator to execute the Will by putting his signature and the testator will also see the witnesses to sign in the Will as attesting witnesses in his presence. Proof of execution of the Will was made by the propounders as required under Section 68 of the Evidence Act by examining the attesting witnesses viz. P.W. 2 and P.W. 3.
9. The appreciation of evidence of P.W. 2 and P.W. 3 clearly proves that they were the attesting witnesses of the Will and their evidence convincingly establish and prove that the testator himself drafted the Will and asked P.W. 2 Gangapada Chattopadhyay to get the said Will typed. P.W. 2 and P.W. 3 Brahmapada Chatterjee, the two brothers were the friends of testator and evidence of the witnesses including evidence of the appellant as D.W. 1 establish that these two witnesses used to come before the testator and they used to spend time talking amongst themselves. The nature of the evidence which came before the Court during trial make it clear that the testator had great faith on his friends namely, PW. 2 and P.W. 3 and that is why he only told them to become witnesses. Evidence of P.W. 2 and P.W. 3 clearly proves that after P.W. 2 got it typed it was produced before the testator who read it and submitted that it was correct and it was then signed by the testator in presence of the said two witnesses and thereafter the said two witnesses signed in the Will and P.W. 3 signed as the first witness and P.W. 2 signed at the second witness. We find no ground at all to differ from the views of the learned Trial Court that execution and attestation of the Will was convincingly proved.
10. Non-production of draft of the Will is not at all a ground to come to the conclusion that the Will was suspicious. It is clear from evidence that the testator himself drafted the Will and thereafter asked P.W. 2 to get it typed. Thereafter, the said typed Will was signed by the testator in presence of attesting witnesses and attesting witnesses signed on the Will in presence of the testator. The said typed Will is the Will in question which was produced in Court and it was made Exhibit 8. Draft Will plays no part at all in the instant matter and the learned Trial Court rightly observed that non-production of Draft Will cannot be regarded as a ground to suspect the Will and to consider the original Will as suspicious in nature.
11. We are not convinced at all with the submission of Mr. Banerjee, learned Advocate for appellant that the Will is suspicious as it is silent in respect of other brothers and nephews of testator and there was no bequeathment of properties in favour of other brothers and nephews. The law is well-settled in this respect. The Will is the intention, desire and will of the testator and under the law, he has the freedom to give his property to whomsoever he likes. If a testator by the Will deprives his other brothers and nephews in respect of his property by that Will that cannot be a ground to suspect the genuineness of the Will. When the Will was duly executed by the testator and the testator gave whole of his estate to the sons of his eldest brother (since deceased) in exclusion of his other brothers and nephews this cannot be regarded as sufficient to generate suspicion, in this connection we place our reliance on the decisions , Chimnoyee Saha v. Debendra Lal Saha and Ors. and , PPK Gopalan Nambiar v. PPK Balakrishnan Nambiar and Ors.
12. Besides that, very recently the Supreme Court in Pentakota Satyanarayana and Ors. v. Pentakota Seetharatnam and Ors. held that, “The circumstances of depriving the natural heirs should not raise any suspicion because the whole idea behind the execution of the Will is to be interfered in the normal line of succession and so natural heirs would be debarred in every case of the Will. It may be that in some cases they are fully debarred and in some cases partly. This is the view taken by this Court in Uma Devi Nambiar and Ors. v. T.C. Sidhan (dead) .
13. In view of the above principles of law and considering the evidence of P.W. 1 Dr. Amitava Banerjee, P.W. 2, P.W. 3 and P.W. 6 Bhabesh Kumar Dutta we find no ground to come to the conclusion that the Will was suspicious and the suspicious circumstances was not explained. The evidence of P.W.1, P.W. 2 and P.W. 3 reveals that in spite of suffering from cancer the testator used to discuss with them on political matters and used to read newspapers, used to chat with them and even used to take sweets. Their evidence clearly proves that mental alertness of the testator was very sound and his physical fitness was also not bad as he used to move in his house and used to go to bathroom himself. Even a few days before his death he opened joint account of Rs. 15,000/- with the appellant in United Commercial Bank, Uttarpara Bazar Branch and after death of the testator the said amount was withdrawn by the appellant. We are at one with the findings of the learned Trial Court that the Will was executed and attested properly and the testator had sound disposing state of mind and clearly understood the nature and effect of the dispositions and executed the said Will out of his own free mind, intention, desire and Will.
14. Evidence of the witnesses reveal that though the testator was suffering from cancer he had no serious pain. P.W. 1 stated that he was surprised to see his mental condition at that time that such a patient had so much mental power. From evidence it further transpired that the testator had degree in Law though he did not practise as an Advocate. He was a union leader and a leader of the frontline of the CPI Party. He was also Vice-Chairman of Uttarpara-Kotrang Municipality and even appellant as D.W. 1 in his evidence admitted these facts. It is, therefore, clear that the testator was a well-educated person and understanding everything well he executed the Will and made the propounders executors. In the Will it was further reflected that one of his brothers namely Dilip is not mentally sound and he has no capacity to work and he expected that the sons of his eldest brother will look after his third brother who was mentally unsound. It reflects the sound mental alertness of the testator at the time of execution and attestation of the Will.
15. Mr. Banerjee further submitted that through the Will only house property of the testator was bequeathed and the orchard, tank etc. were not bequeathed. Similarly, the money standing in the name of the testator in bank, post office or other financial institutions and his service benefits were not mentioned in the Will and the propounders and the executors are not entitled to obtain right on orchard, tank, money and service benefits including pensionary benefits of the testator.
16. Mr. Rameshwar Bhattacharya, learned Advocate for the respondents submitted that the only question for consideration in this appeal is whether Will was genuine or not and whether the probate would be granted or not. The money or the service benefits or pensionary benefits etc. are completely different matters and out of the scope of probate suit and these matters cannot be decided in this appeal.
17. We find that in the body of the Will it was clearly mentioned that by a registered deed of partition the testator acquired the properties described below in absolute rights. Appellant as D.W. 1 himself in his evidence admitted that Dilip Babu and Prasanta Babu used to reside on their respective portions of the house which were allowed to them on partition effected by a partition decree on compromise in a partition suit. In the Will it was mentioned that the testator bequeathed his entire movable and immovable properties included in holding No. 43, Dharmatala Lane under Uttarpara-Kotrang Municipality. The law is well-settled that the properties which have been bequeathed through the Will can only be probated and not the other properties which were not mentioned in the Will. Therefore, in the instant matter there would be probate on the Will and the propounders will get probate of the Will of testator late Prasanta Kumar Dutta in respect of properties which have been described in the Will. We make it clear that the probate granted by the learned Trial Court will remain confined only upon the properties which have been covered by that Will.
18. In view of our discussion made above we find no ground at all to interfere with the findings of the learned Trial Court. The contentions of the appellants are not acceptable and we find no merit in the appeal and accordingly the appeal stands dismissed.
19. However, we make no order as to costs and parties do bear their own costs of the appeal.
20. Department is directed to send down the lower Court records along with copy of this judgment and order to the learned Trial Court for information and necessary action.
Bhaskar Bhattacharya, J.
21. I agree.