Jayanandan Singh, J.

Earlier to the filing of the present case, Test Case No.2 of 1986 was filed by the applicant Smt. Sarama Banerjee, which was converted into Test Suit No.1 of 1988. However, the said suit was withdrawn as not pressed vide order dated 7.10.1994 passed by this Court in the said suit. Thereafter, again on 27.4.1995 Test case No.3 of 1995 was filed by Smt. Sarama Banerjee under section 278 of the Indian Succession Act for grant of letter of administration of the Will executed by Late Smt. Purnima Banerjee, which was later on converted into Test Suit.

2. It is stated that a Will was executed by Smt. Purnima Banerjee on 15.8.1981 in respect of the property left by her husband Late Justice Kali Kumar Banerjee, a retired Judge of Patna High Court, in favour of his nephew Prabir Kumar Banerjee. It is stated in the application that Prabir Kumar Banerjee died on 7.3.1984 without taking letter of administration in respect of the Will. Thereafter, widow of Late Prabir Kumar Banerjee filed the present suit for grant of letter of administration in her favour with respect to the property under the Will. It is stated that the Testatrix was permanently residing at Sinha Library Road, Patna, within the jurisdiction of this Court. It is also stated that the Testatrix died issueless.

3. Names of the heirs of deceased Testatrix and also her husband Late Justice Kali Kumar Banerjee are mentioned in paragraphs 10 and 11 of the application as Near Relatives. They are Shyamal Kumar Banerjee, Mrs. Rita Roy, Alok Nath Chatterjee, Namita Gopal, Smt. Lalita Bose, Sachi Prasad Mukherjee and Smt. Anjali Koari. Valuation of the property under the Will has been given in the application as Rs.2,05,000/-, vide Schedule-A. An amount of Rs.56,244.06 has been shown as funeral expenses and other debts, vide Schedule-B.

4. As stated earlier, plaintiff had filed another Test Case which was later on converted into Test Suit No.1 of 1988. It is stated that during the pendency of that Test suit, defendants had filed a Title Suit bearing Title Suit No.299 of 1983 in the court of Sub-Judge-III, Ranchi in respect of the ancestral properties of the husband of the Testatrix in which properties under the Will were not included. In the said title suit efforts were made to have the matter settled amicably. For this purpose, a compromise petition was prepared in which a condition was stipulated that the plaintiff should withdraw the testamentary suit. It is stated that under bonafide belief, the plaintiff withdrew Test Suit No.1 of 1988 from this Court. It is also stated that a partition suit was also filed by the defendants of present suit bearing Partition Suit No.181 of 1994 and the said compromise petition, purported to have been filed in the Title Suit, was filed in the said partition suit.

5. Original Will was written in Bengali and a translation of the same in English has also been filed.

6. General citations were published in English Daily Telegraph and Bengali Daily Aaj Kal. Special Citations were also issued to the Near Relatives. During the pendency of the suit, one of the Near Relative, namely, Anjali Koari was reported to have died and after due notice her legal heirs as mentioned in the substitution petition, namely, A.K.Koari and Achintya Koari, were substituted.

7. Special Citations were also issued to the Near Relatives and they appeared in this case and filed their vakalatnama. Defendant Nos.1 and 2 filed caveat against grant of letter of administration with respect to the estate of Smt. Purnima Banerjee on 18.5.1998, which was accepted by this Court by order dated 17.9.1999. Thereafter, Test case was converted into present Test Suit.

8. This Court, by order dated 7.11.2003, framed following issues for consideration in this suit in respect of grant of letter of administration:

(1) Whether the present Test Suit No.1/2000 is maintainable in view of Rule 3(a) of Order 23 of the Code of Civil Procedure because of unconditional withdrawal and dismissal of Test Suit No.1/1988 between the same parties

(2) Whether the parties have made admissions in compromise petition and if yes what would be the effect of the said admission on the present matter

(3) Whether deceased Purnima Banerjee had executed the Will in dispute and while executing the will she was in a fit mental condition to understand as to what she was doing and the will is outcome of her free will

(4) Whether the plaintiff is entitled to grant of letter of administration in respect of the estate of the deceased, if yes, subject to what conditions

9. Alok Nath Chatterjee was examined by the plaintiff as P.W.1. He supported his statements made in Examination-in-Chief on affidavit. He was cross-examined by the defendants. In his cross-examination, this witness said that Sri Kali Kumar Banerjee died in the year 1979 and his wife Purnima Banerjee died in the year 1983. Prabir Kumar Banerjee, in whose favour the Will was executed by Purnima Banerjee, was the son of one of the brothers of Kali Kumar Banerjee. This witness stated that the Will was not executed in his presence but he was told by the Testatrix Purnima Banerjee about the said Will. This witness denied the suggestion that he had information about any title suit or partition suit pending between the nephews and nieces of Justice K.K.Banerjee.

10. Lakshmi Kant Chaudhary, one of the attesting witnesses, was examined as P.W.2. He stated that the Will was executed by Late Purnima Banerjee on 15.8.1981 and he put his signature on the Will as an attesting witness. Original Will was marked as Ext.-1. This witness also identified the signature of the Testatrix on the Will, which was marked as Ext.-2. He identified his own signature on the Will, which was marked as Ext.-3. This witness further stated that another attesting witness Ashok Kumar Sinha also put his signature over the Will in his presence on the request of the Testatrix. He also identified the signature of scribe of the Will, namely, S.Mustafi. His writing was marked as Ext.-4. This witness stated that at the time of execution of the Will, Testatrix was in perfect mental and physical health. This witness was cross-examined on two dates. In his cross-examination, this witness stated that he had no knowledge about any pending title suit in a Ranchi court in respect of the properties which are the subject matter of the Will in question. This witness accepted that he was residing in the house of the plaintiff since 1975. In his further cross-examination, this witness stated that his father was Advocates Clerk to Mr. K.K.Banerjee while he was practicing before his elevation as a Judge of this Court. This witness denied knowledge about any compromise petition filed pertaining to this suit. He also stated that he had no knowledge about any title suit filed by the parties with respect to the same property. He stated that he did not remember that he had put his signature on any inventory prepared by the Advocate Commissioner, who had visited the house in question in relation to the suit filed at Ranchi. However, on seeing the inventory prepared by the receiver, he identified his signature thereon, which was marked as Ext.-A. He reiterated that the Will was prepared in his presence and he had put his signature on the same. He stated that on the date of execution of the Will, Prabir Kumar Banerjee was residing in the house along with his wife and daughter.

11. Ashok Kumar Sinha, a Senior Advocate of this Court, was examined as P.W.3. He was another attesting witness. He stated that the Will was executed by Late Purnima Banerjee, widow of Justice K.K.Banerjee. The Will was scribed by S.Mustafi upon being dictated by her and she put her signature on the same after verifying the contents of the same which was read over to her by S.Mustafi. This witness identified the signature of the Testatrix on the Will which was in Bengali. He also identified the signature of another attesting witness Lakshmi Kant Chaudhary. This witness identified his signature also on the Will, which was marked as Ext.-5. This witness stated that at the time of execution of the Will, Testatrix was in sound state of mind and health. In his cross-examination, this witness stated that he had put his signature on the Will in question in the capacity of an attesting witness. This witness could not identify the signature of the plaintiff on the compromise petition dated 28.9.1994. He stated that the other attesting witness, namely, Lakshmi Kant Chaudhary was a Typist in Patna High Court and he resided in the outhouse of the residence of the Testatrix. In his further cross-examination, this witness stated that he had not attested the signature of the Testatrix previously or thereafter. He had never appeared on behalf of Testatrix or Late Justice K.K.Banerjee in any case. He stated that legal notice was sent by him on behalf of Prabir Kumar Banerjee, who was original legatee and husband of the present plaintiff. Legal notice was marked as Ext.-B and his signature was marked as Ext.-B/1. He stated that Prabir Kumar Banerjee died in the year 1984. This witness denied the suggestion that the Will was written on a plain paper having a signature of Purnima Banerjee.

12. During the pendency of the present suit, one of the Near Relatives, namely, Lalita Bose died and an application for substitution of her heirs was filed. This Court by order dated 17.4.2009 did not accept the substitution petition on the ground that Lalita Bose had not filed any caveat and objection and she had only filed her vakalatnama, that too, after passing of order by this Court for producing defendant no.1 Shyamal Kumar Banerjee only as other Near Relatives were not turning up.

13. It transpired to the Court that the matter between the parties may be amicably settled, and therefore, by order dated 9.12.2011 the parties were directed to appear before this Court personally on an agreed date.

14. In the meantime, No Objections on affidavit were filed by Defendant nos.1 and 2, namely, Shyamal Kumar Banerjee and Rita Roy as well as by Near Relative No.3 Alok Nath Chatterjee, Near Relative No.4 Namita Gopal and Near Relative No.5 Kallol Bose on 5.7.2012. However, no orders were passed on the said affidavits and the matter was adjourned. On 24.8.2012, near relatives Shyamal Kumar Banerjee, Rita Roy and Kallol Bose appeared personally and also filed their No Objections on affidavits, and stated that they were not interested in contesting the suit and they supported their affidavits filed on that day. It was stated by learned counsel for the Near Relatives that Namita Gopal was very old and was residing in Mumbai and she was not in a physical condition to come to the Court. The affidavits of No Objection filed on her behalf and also on behalf of Alok Nath Chatterjee, who was residing in Australia, were duly attested by the Additional Commissioner of Income Tax, Mumbai. It is stated that the said Namita Gopal was attorney holder of Alok Nath Chatterjee.

15. As stated earlier, the Will was written in Bengali and a copy of the English translation of the same was also filed. Will was executed in Patna within the jurisdiction of this Court. It is stated that the original Will was filed in the Court separately in a sealed cover. In the circumstances, this Court finds that the application filed by the applicant under section 278 of the Act is in accordance with the requirements of law.

16. In the light of the evidence of the witnesses, this Court has perused the original Will of the Testatrix and also its translated copy. This Court finds that the Testatrix has executed the Will and put her signature on the same. This Court also finds that earlier the Near Relatives had filed their caveat and objections with a view to contest the suit. However, with the intervention of close relatives and well wishers, all the Near Relatives refrained from contesting the suit and all of them have separately filed their No Objections on affidavits. Three Near Relatives have also personally appeared in Court and have said that they are not interested in contesting the suit and they have no objection if a letter of administration is granted in favour of the plaintiff Smt. Sarama Banerjee. The attesting witnesses have identified the signature of the Testatrix on the Will as well as their own signatures, which have been marked as Exhibits. Thus, this Court finds that the Will conforms to the requirement of section 263 of the Act.

17. The witnesses have stated that the Will is the last Will of the Testatrix duly executed by her. They have also stated that the Testatrix was in a sound state of mind and body at the time of execution of the Will. This Court further finds that there is nothing on record to show that this Will was not the last document executed by the Testatrix.

18. In the circumstances, this Court is satisfied that the Will is genuine and contains last wishes of the Testatrix, duly executed by her in full consciousness and in a sound state of mind and body and duly attested by the witnesses. Hence, it satisfies the requirements of law.

19. As a result, this application is allowed. Let a letter of administration be issued in favour of the plaintiff Smt. Sarama Banerjee in terms of the Will in respect of the properties covered by the Will.