Calcutta High Court
For The vs Ram Sahai on 23 April, 2025
Author: Sugato Majumdar
Bench: Sugato Majumdar
IN THE HIGH COURT AT CALCUTTA
TESTAMENTARY AND INTESTATE JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Sugato Majumdar
PLA/63/2019
IN THE GOODS OF-
SHRIMATI RAMA DATTA GUPTA (DEC)
For the Plaintiff : Mr. K. N. Jana, Adv.
Hearing concluded on : 11/04/2025
Judgment on : 23/04/2025
Sugato Majumdar, J.:
This is an application for grant of probate of the last will and testament of late
Rama Dutta Gupta.
Rama Dutta Gupta, since deceased, the Testatrix herein, was a Hindu
governed by Dayabhaga School of Law. Her last abode was at Cluster IX, E/8, Sector-
III, Purbachal, Salt Lake City, Kolkata-700091. She expired on 03/07/2008. Prior
to her death, the Testatrix herein, executed her last will and testament on
02/06/1995, in respect of property, mentioned in the will namely a piece and parcel
of land measuring about 8.290 katha in No. N/2, Sector of Digha Development
Scheme, Post office & Police Station-Digha, District- Midnapore. This property has
been devised and bequeathed to the Petitioners, being the Executors of the will. The
will was registered in the office of the District Registrar, Barasat for the District of
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North 24 Parganas. The will and the death certificate were annexed to the instant
application.
The present Petitioners were appointed as Joint Executors of the will.
The husband of the Testatrix predeceased her. At the time of her death, she
had two sons and two daughters as legal heirs and successors.
After filing of the instant application citations were issued. No caveat was
lodged on behalf of any person. Therefore, the probate proceeding remained un-
contentious.
The will was to be proved in solemn form, that is why this Court allowed the
Petitioner to produce witnesses.
One of the propounders of the will Sri Abhijit Das examined himself as P.W.1
and another person named Tarak Nath Dutta examined himself as P.W.2 who is the
attending witness. When the application was filed it was accompanied by an affidavit
sworn in by one of the attesting witnesses, Atanu Battacharjee.
On behalf of the Petitioners, the original death certificate as well as the
original will itself were adduced in evidence, exhibited and marked accordingly.
Section 63 of the Indian Succession Act, 1925 provides execution of the
unprivileged will. It goes as follow:
“63. Execution of unprivileged Wills.– Every testator, not being a
soldier employed in an expedition or engaged in actual warfare, or an
airman so employed or engaged, or a mariner at sea, shall execute his Will
according to the following rules:–(a)The testator shall sign or shall affix his
mark to the Will, or it shall be signed by some other person in his presence
and by his direction.
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(b)The signature or mark of the testator, or the signature of the person
signing for him, shall be so placed that it shall appear that it was intended
thereby to give effect to the writing as a Will.
(c)The Will shall be attested by two or more witnesses, each of whom has
seen the testator sign or affix his mark to the Will or has seen some other
person sign the Will, in the presence and by the direction of the testator, or
has received from the testator a personal acknowledgement of his signature
or mark, or the signature of such other person; and each of the witnesses
shall sign the Will in the presence of the testator, but it shall not be necessary
that more than one witness be present at the same time, and no particular
form of attestation shall be necessary.”
The Section provides manner of execution of a will. So far as, proof of a will is
concerned the same is contained in Section 68 of the Indian Evidence Act, 1872:
“68. Proof of execution of document required by law to be attested.
If a document is required by law to be attested, it shall not be used as evidence
until one attesting witness at least has been called for the purpose of proving
its execution, if there be an attesting witness alive, and subject to the process
of the Court and capable of giving evidence :[Provided that it shall not be
necessary to call an attesting witness in proof of the execution of any
document, not being a Will, which has been registered in accordance with the
provisions of the Indian Registration Act, 1908 (XVI of 1908), unless its
execution by the person by whom it purports to have been executed is
specifically denied.
Section 69 contemplates a situation where attesting witness is not found. It
goes as follow:
“69. Proof where no attesting witness found: If no such attesting
witness can be found, or if the document purports to have been executed in
the United Kingdom, it must be proved that the attestation of one attesting
witness at least is in his handwriting, and that the signature of the person
executing the document is in the handwriting of that person.”
On appreciation, evidence of the propounder of the will sounds contradictory.
He testified that before death, the Testatrix told him about execution of the will. This
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implies that he had no knowledge of execution of the will. Again, he stated that he
made the Testatrix last in the year 1996/1997. He further stated that he had no
interaction with the Testatrix after the year 1996/1997 but his elder brother had
interacted with the her after execution of the will. He also testified that the will was
in the custody of his elder brother. The elder brother, namely, the other Joint
Executor did not appear before this Court to examine himself and to apprise this
Court circumstances surrounding the execution and the subsequent chain of events.
From the evidence of the propounder, it appears that after 1996/1997, he did not
interact with the Testatrix till her death in the year 2008. Furthermore, P.W.1 could
not clearly state when the Testatrix died; he said possibly it was in the year 2004.
Actually, death took place in the year 2008. Beneficiaries under the will are the
Executors who are not related to the Testatrix but rather strangers. The bequest is an
unnatural one depriving the sons and daughters. They were also not present at the
time of the execution; at least none of the witnesses speak out that. Since P.W.1 last
met with the Testatrix, as appears from his testimony, in the year 1996/1997 and
about 8 years intervened from the date of execution of the will to the date of death of
the Testatrix, their remains a doubt whether this is the last will and testament of the
Testatrix. It might be or might not be that the Testatrix changed her mind and made
another will. As P.W.1 stated, his elder brother had interaction with the Testatrix
even after execution of the will, he could have come forward to say whether there was
any change in mind of the Testatrix and whether there was any subsequent will or
not.
P.W.2 is the attending witness. He stated in evidence that one of the attesting
witnesses, Atanu Bhattacharjee expired in the year 2022. He further stated that he
did not know and has no idea of what abouts of Subrata Sengupta, the other attesting
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witness. No attempt was made by the propounder of the will to search out the said
attesting witness.
In Babu Singh v. Ram Sahai, [(2008) 14 SCC 754], referring to section 69 of
the Act, it was observed by another Bench of the Supreme Court India:
“17. It would apply, inter alia, in a case where the attesting witness is
either dead or out of the jurisdiction of the court or kept out of the way by
the adverse party or cannot be traced despite diligent search. Only in that
event, the will may be proved in the manner indicated in Section 69 i.e. by
examining witnesses who were able to prove the handwriting of the
testator or executant. The burden of proof then may be shifted to others.”
In Kalyanaswamy v. Bakthavatsalam, [(2021) 16 SCC 543], it was observed,
referring to section 69 of the Indian Evidence Act, 1872:
“107. Though the expression used is “if no such attesting witness can
be found”, inter alia, it bears the following interpretation. The word
“such” before “attesting witness” is intended to refer to the attesting
witness mentioned in Section 68 of the Evidence Act. As far as the
expression “found” is concerned, it would cover a wide variety of
circumstances. It would cover a case of an incapacity to tender evidence
on account of any physical illness. It would certainly embrace a
situation where the attesting witnesses are dead. Should the attesting
witness be insane, the word “found” is capable of comprehending such
a situation as one where the attesting witness, though physically
available, is incapable of performing the task of proving the attestation
under Section 68 of the Evidence Act, and therefore, it becomes a
situation where he is not found.”
Moturu Nalini Kanth vs Gainedi Kaliprasad (Dead, Through Lrs.) [2023
SCC OnLine SC 1488] the principle of law for proof of a will was reiterated:
“20. Trite to state, mere registration of a Will does not attach to it a
stamp of validity and it must still be proved in terms of the above legal
mandate. In Janki Narayan Bhoir v. Narayan Namdeo Kadam1, this
Court held that the requirements in clauses (a), (b) and (c) of Section
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63 of the Succession Act have to be complied with to prove a Will and
the most important point is that the Will has to be attested by two or
more witnesses and each of these witnesses must have seen the testator
sign or affix his mark to the Will or must have seen some other person
sign the Will in the presence of and by the direction of the testator or
must have received from the testator a personal acknowledgment of his
signature or mark or of the signature or mark of such other person and
each of the witnesses has to sign the Will in the presence of the testator.
It was further held that, a person propounding a Will has got to prove
that it was duly and validly executed and that cannot be done by simply
proving that the signature on the Will was that of the testator, as the
propounder must also prove that the attestations were made properly,
as required by Section 63(c) of the Succession Act. These principles
were affirmed in Lalitaben Jayantilal Popat v. Pragnaben Jamnadas
Kataria2.”
It was observed also that mere marking of Exs. C1 & C 2 affidavits was not sufficient
to satisfy the requirement of Section 69 of the Evidence Act. It was further observed:
“32. For the purposes of Section 69 of the Evidence Act, it is not
enough to merely examine a random witness who asserts that he saw
the attesting witness affix his signature in the Will. The very purpose
and objective of insisting upon examination of at least one attesting
witness to the Will would be entirely lost if such requirement is
whittled down to just having a stray witness depose that he saw the
attesting witness sign the Will.”
Reference may be made to Surendra Pal v. Saraswati Arora (Dr) [(1974) 2
SCC 600] where principle was succinctly laid down:
“7. The propounder has to show that the Will was signed by the testator;
that he was at the relevant time in a sound disposing state of mind, that
he understood the nature and effect of the dispositions, that he put his
signature to the testament of his own free will and that he has signed it
in the presence of the two witnesses who attested it in his presence and
in the presence of each other. Once these elements are established, the
onus which rests on the propounder is discharged.”
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In K. Laxmanan v. Thekkayil Padmini,[(2009) 1 SCC 354], referring to
section 68 0f the Indian Evidence Act, 1872, it was observed by the Supreme Court of
India that a bare reading of the aforesaid provision will make it crystal clear that so
far as a deed of will is concerned, the position in law is no longer in doubt for the
onus of proving the will is on the propounder. The propounder has to prove the
legality of the execution and genuineness of the said will by proving absence of
suspicious circumstances surrounding the said will and also by proving the
testamentary capacity and the signature of the testator. Once the same is proved, it
could be said that the propounder has discharged the onus.
Conspectus of facts invite certain conclusions. Firstly, there is an unnatural
bequest to the stranger by the instant will. Secondly, the will was not executed in
presence of the relatives, sons and daughters of the Testatrix. Thirdly, it is not clear
and a doubt remains as to whether this is the last will and testament of the Testatrix.
Fourthly, execution of the will is sought to be proved by attending witness.
Execution of the will is to be in conformity with Section 63 of the Indian
Succession Act, 1925. The will is to be proved in accordance with provision of
Section 68/69/71 of the Indian Evidence Act, 1872. No case is made out or no
evidence is furnished as to why Section 69 should be applicable. The propounder of
the will said nothing on the attesting witnesses. No explanation is there why the
other living attesting witness had not been examined. Established and proved facts
do not warrant that the execution of the will should be proved dispensing with the
evidence of attesting witnesses. In such circumstances and for the reasons stated
above execution of the will as contemplated in section 63 of the Indian Succession
Act, 1925 cannot be said to be proved, in the manner contemplated in Section 68 of
the Indian Evidence Act, 1872. For reasons stated above, it is concluded and decided
that the will is not proved.
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Hence, grant of probate is refused.
The instant probate application stands disposed of accordingly.
(Sugato Majumdar, J.)