Dipak Kumar Sen, J.
1. This appeal is against a judgment and decree dated the 5th July, 1974 granting probate of a Will dated the 2nd Feb. 1951 of Subodh Bala Sana, deceased.
2. The material facts on record are, inter alia, that the testatrix, died on the 30th May, 1953 leaving her surviving her two sons, Umapada and Shyamapada, Reshnibala, widow of Renupada, a predeceased son, Sankar and Mrityanjay, her two grandsons and the sons the said Renupada and Debjani her daughter unmarried at the date of the death of the testatrix as her heirs in intestacy. In theWill, Gobardhan Mallick, the husband of Pramilabala, another married daughter of the testatrix, the said Paribala and the said Reshnibala were nominated as the executors and the executrices respectively.
3. It is recorded in the Will that Umapada had his own house and landed properties at Khulna and lived separately. The temporary permission given to Umapada to reside in the house of the testatrix at Chinsura was directed to stand revoked. It is also recorded that he would have no claim over the estate of the testatrix.
4. It is recorded further that Shyamapada, the other son of the testatrix, residing in Khulna in his own house lived a loose moral life and that his wife and two minor sons had been left in the care of the testatrix.
5. The Will provides that all properties belonging to the estate of the testatrix would be debuttar properties of two household Deities of the testatrix. Reshnibala and Paribala are appointed the shebaits of the said Deities. Upon the death of Reshnibala, her two sons would be appointed shebaits in her place and stead and upon the death of Paribala, Aurobindo, a son of Umapada, would be appointed in her place and stead. It is further provided that out of the income of the estate, after payment of taxes and effecting repairs to the houses, the balance would be spent for the seva puja of the Deities and the surplus will be spent for the maintenance of Ranibala, her two sons and Paribala.
6. The estate of the testatrix consists of two immovable properties both situate within the municipal limits of Chinsurah, District Hooghly, being a two storeyed residential house valued at Rs. 14,400/- and a piece of vacant land valued at Rs. 600/-.
7. Paribala, one of the executrices, filed an application for probate of the Will on or about the 21st Jan. 1969 on which a probate was issued on the 28th July, 1969. Thereafter, Umapada filed an application on or about the 13th April 1970 for setting aside the probate on the ground that citations had not been served on him. By an order dated the 21st Jan., 1971 the said probate was revoked and set aside and theapplication for probate was restored. Umapada waived service of fresh citation and was given leave to file an affidavit in opposition to the petition. The application was directed to be heard as a contentious cause and marked as Testamentary Suit No. 8A of 1974.
8. Umapada Sana affirmed an affidavit on the 17th Mar., 1971 which was filed in opposition to the petition for probate.
9. It is recorded in the judgment under appeal that Gobardhan, the executor nominated in the Will died on the 22nd Feb., 1968 and that Paribala initially applied for probate in her own favour only as she did not know the address of Reshnibala. On the 4th June, 1974, Reshnibala filed an application stating that she was also willing to act as an executrix and that probate be granted also in her favour.
10. It is further recorded in the judgment that after the proceedings were opened learned Counsel for the parties appearing had the matter adjourned so that the parties could come to a settlement.
11. On the 4th June 1974, at the further hearing learned Counsel for Umapada submitted that they had no instructions in the matter and after obtaining leave of Court retired from the proceedings.
12. Thereafter, two of the attesting witnesses were examined on behalf of the applicant. After the evidence was concluded the proceedings were further adjourned at the instance of the applicant to give the parties another opportunity to come to a settlement. Another learned Counsel appeared for Umapada at that stage and concurred in the prayer for adjournment on the ground of settlement. When the matter again appeared in the list no one appeared on behalf of Umapada and after hearing the submissions of the learned Counsel for the applicant the learned Judge disposed of the proceedings by a judgment in favour of the applicant.
13. The main provisions of the Will have been noted in the judgment and on consideration of the same and also the fact that apart from Umapada none of the other heirs of the testatrix were contesting the same the learned Judge came to the conclusion that the will was not unnatural.
14. It is further noted that the attesting witnesses had proved the execution and attestation of the will and also that the testatrix was in a proper physical and mental condition at the time of execution of the Will.
15. Learned Advocate for the appellant submitted before us that the learned Judge did not take into account the fact that the Will was sought to be probated long after the death of the testatrix. It was contended that such delay was suspicious and there was no explanation offered by the propounder to clear such suspicion. Learned Advocate contended further that the Will was ex facie unnatural, as the eldest son had been totally left out.
16. In support of his submissions learned Advocate for the appellant cited Biswanath Mallick v. Netai Chand Mallick reported in (1979) 83 Cal WN 569 : (AIR 1979 NOC 85). In this case following a decision of the Supreme Court reported in : AIR1959SC443 , it was held by a Division Bench of this Court that if suspicions circumstances were present the initial onus on the propounder of a Will became heavy and unless such onus was sufficiently and satisfactorily discharged the Court should be reluctant to accept the document as a valid Will. Such suspicious circumstances would be circumstances which surrounded the execution of the Will, namely, doubtful signature of the testator, his mental condition and his physical health. Disposition under the Will if unnatural and improbable would also indicate that the testator did not have a free will and mind.
17. Learned Counsel for the respondent contended to the contrary and submitted that the Will had been duly proved by calling two of the attesting witnesses. In the face of such unchallenged evidence on record, there was no reason why the judgment and order appealed from should not be upheld. He submitted that there were no circumstances surrounding the execution of the Will which was suspicious and the fact that the Will was sought to be propounded long after the death of the testatrix was not a relevant circumstances on which the Court should base its decision. It was submitted further the will was not unnatural inasmuch as the beneficiaries under the Will were Deities,widows and minors who needed assistance and none of the sons and daughters of the testatrix had been made a beneficiary.
18. Law is settled that if a Will is not contested the same can be proved in common form and in the High Court probate would be granted as a matter of course. Where, however, a caveat is filed and a contention is raised, the cause is marked as contentious and thereafter the proceedings take the colour of a regular suit. Even if at a subseqnent stage the contention or the contest is not pressed the same still have to be disposed of as a suit. It follows that once a probate proceeding is marked as contentious the same even if it be undefended has to be disposed of as an undefended suit and the probate Will not be granted automatically. In Phanindra Chandra v. Nagendra Chandra reported in AIR 1925 Cal 75, Sir Asutosh Mukherjee, J. considered facts which are similar to the facts in this appeal. After the proceedings were marked as contentious before the District Judge, the pleader withdrew from the case. It was held that the proceedings became an undefended suit and the Will had to be proved in solemn form.
19. In the instant case, it is on record that the Will has been proved in solemn form by calling two attesting witnesses and after issue of citations. The evidence before the learned Judge in the Court below was unchallenged. No issue was raised to the effect that the Will was unnatural or that there were suspicious circumstances surrounding the execution of the Will. The learned Judge has considered the provisions of the Will and the evidence adduced and after being satisfied has granted the probate. In the absence of any opposition the Court was not called upon to investigate the matter further and raise suspicions on its own. We do not feel that the matter need be agitated further. In any event, the assets in dispute are meagre and in our view it would be unfair on all concerned to prolong this litigation indefinitely. We note that Umapada has died during pendency of this appeal and his heirs and legal representatives have been substituted in his place.
20. For the reasons above, the appeal is dismissed. In the facts andcircumstances of the case we make no order as to costs. All interim orders are vacated.
Suhas Chandra Sen, J.
21. I agree.