Calcutta High Court
For The vs Munmun Neogi on 13 January, 2025
OD-6 ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
TESTAMENTARY & INTESTATE JURISDICTION
TS/16/2009
IN THE GOODS OF :
ARJUN KUMAR ROY, DECEASED
AND
AVIJIT DHAR
BEFORE:
The Hon'ble JUSTICE BIVAS PATTANAYAK
Date: 13th January, 2025.
Mr. Rahul Karmakar, Mr. Sounak Mukherjee, Advocates
for the petitioner/plaintiff.
The Court : This is an application for grant of probate of last Will and
Testament dated 17th May, 2006 of the deceased Arjun Kumar Roy.
The plaintiff contends as follows :
Arjun Kumar Roy, the testator died on 21st November, 2008 at J.N.
Roy Sishu Seva Bhavan, Raja Dhirendra Street, Kolkatta-700006. During
his lifetime, he executed his last Will and Testament on 17th May, 2006 and
registered before the Registrar of Assurances, Kolkata. At the time of his
death the testator was a Hindu governed by Dayabhaga School of Hindu
Law. The said Will was executed in presence of Dr. Dilip Kumar Chandra
and Shri Bhupati Dhar. The plaintiff/petitioner was appointed as the sole
executor in the said Will. The deceased had only one legal heir, namely, his
wife Smt. Phulrani Roy at the time of his death. In the event the deceased
died intestate, his wife Smt. Phulrani Roy would have been his only legal
2heir under Hindu Succession Act since the only child of the deceased
predeceased the testator.
The wife of the deceased testator, who did not consent to the grant of
probate, filed caveat and affidavit in support of the caveat on 6th April, 2009
contending that she never heard of any Will being executed by her late
husband. Furthermore after the demise of their only son in the year 1994,
the testator was not possessing sound mental faculties.
In view of the above, the probate application became contentious and
was converted to a testamentary suit being TS 16 of 2009.
By order dated 3rd July, 2024 the name of the caveatrix Phulrani Roy
was expunged for the reason of her death on 26 th March, 2024.
Mr. Rahul Karmakar, learned Advocate appearing for the
plaintiff/petitioner submits that the Will is a registered Will and the same
has been proved by examination of one of the attesting witness Dr. Dilip
Kumar Chandra as per requirement of Section 68 of the Indian Evidence
Act, 1872 and Section 63(c) of the Indian Succession Act, 1925. The
evidence of the witness would show that the testator was physically fit and
mentally alert on the date of execution of the Will. There are no such
suspicious circumstances to disbelieve the execution of the Will. The
executor is the nephew of the testator and in order to protect the property,
the Will has been executed appointing the plaintiff/petitioner as the
executor. He also referring to pass Book of United Bank of India (Exhibit
‘C’), the deposition of Arjun Kumar Roy in Case No. C/709 of 2005 (Exhibit
‘I’), a written statement filed by Arjun Kumar Roy in Partition Suit No. 60 of
2005 (Exhibit ‘K’) and an affidavit-in-opposition in a GA 1851 of 2006
3application (Exhibit ‘M’) submits that on the date of execution of the Will on
17th May, 2006, the testator was very much active and alert inasmuch as he
has withdrawn money from the bank and has taken steps before the Court
of Law. Relying on the decision of this Court passed in In the Goods of :
Samir Kumar Biswas And Supriya Biswas versus Munmun Neogi
reported in 2017 SCC OnLine Cal 17386, he submits that since the
requirement of Section 63 of the Indian Succession Act has been duly
fulfilled and the provision of Section 68 of the Indian Evidence Act has also
been satisfied for proving the Will by one attesting witness, the
plaintiff/petitioner is entitled to grant of probate in his favour. He also
submits that since the Will is a registered one, it carries with a presumptive
value and weightage. To buttress his contention, he relies on the decision of
this Court passed in Tapati Patra and Others versus Swarup Das and
Another reported in 2023 SCC OnLine Cal 616.
Before delving into the facts of the case, it would be profitable to
reproduce the relevant provisions dealing with the validity
and execution of the Will.
“Section 63 of the Indian Succession Act, 1925
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.
(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
4the 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.
Section 68 of Indian Evidence Act 1872
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:
xxx”
Thus, a bare reading of the aforementioned provisions would
show that the requirements enshrined under Section 63 of the Indian
Succession Act have to be categorially complied with for the
execution of the Will to be proven in terms of Section 68 of the Evidence
Act.
A Will is an instrument of testamentary disposition of
property, which is a legally acknowledged mode of bequeathing
a testator’s property during his lifetime to be acted upon on his/her
death and carries with it an element of sanctity. Since at the time of
testing the document for its validity, the testator/testatrix would not be
available for deposing as to the circumstances in which the Will came to
be executed, stringent statutory requisites for the proof thereof
have been enjoined to rule out the possibility of any manipulation.
Now bearing in mind the aforesaid, it is to be seen whether the
plaintiff-applicant has successfully established the validity and
execution of the Will.
Apart from statutory compliance in order to establish the validity
and execution of the Will, broadly following has to be proved (i) the
testator signed the Will out of his own free Will, (ii) at the time of
execution he had a sound state of mind, (iii) he was aware of the nature
5and effect thereof and (iv) the Will was not executed under any
suspicious circumstances.
In support the case, plaintiff/petitioner has examined the attesting
witness Dr. Dilip Kumar Chandra. In his evidence the witness has
categorically stated that the testator had a very good physic and his mental
condition was normal. He further deposed that the testator was fit to
understand everything always. Further he deposed that he came to the
office of the learned Advocate Mr. Pulak Chandra Das to sign the Will. This
witness further deposed that the testator Arjun Kumar Roy, the other
attesting witness and the learned Advocate Pulak Chandra Das signed in his
presence and he has also signed the original document in the office of Mr.
Pulak Chandra Das, Advocate. After the testator and the other attesting
witness put their signatures, he signed on the said document. He also
deposed that Shri Arjun Kumar Roy presented the document in the
registration office along with his pleader. This witness identified the
signature of the testator on the Will dated 17th May, 2006 as well as his
signature marked Exhibit ‘A’ and ‘A2’ respectively and the Will has been
marked Exhibit ‘A’. Further from the pass Book of United Bank of India
(Exhibit ‘C’), the deposition of Arjun Kumar Roy in Case No. C/709 of 2005
(Exhibit ‘I’), a written statement filed by Arjun Kumar Roy in Partition Suit
No. 60 of 2005 (Exhibit ‘K’) and an affidavit-in-opposition in a GA 1851 of
2006 application (Exhibit ‘M’) it is found that the testator has withdrawn
money and also deposed before the Court, took steps in different
proceedings which also shows that he was physically fit and mentally alert
at the time of execution of the Will.
6
From the aforesaid, it is found that the plaintiff/petitioner has fulfilled
the provision of Section 63(c) of the Indian Succession Act as well as the
requirement under Section 68 of the Indian Evidence Act by proving the Will
upon examination of one attesting witness who deposed that he has seen
the testator sign the Will and the other attesting witness sign and thereafter
he put his signature. Further it is relevant to note that there is no
suspicious circumstances emanating from the evidence of the witness to
disbelieve the contention of the plaintiff/petitioner even though the witness
was subjected to cross-examination. Accordingly, the execution of the Will
stands proved. This Court finds substance in the submission of Mr.
Karmakar, learned advocate for the applicant referring to Supriya Biswas
(supra) that since the requirement of Section 63 of the Indian Succession
Act has been duly fulfilled and the provision of Section 68 of the Indian
Evidence Act has also been satisfied for proving the Will by one attesting
witness, the plaintiff/petitioner is entitled to grant of probate in his favour.
On behalf of the plaintiff/petitioner, reliance has been placed on the
decision of Tapati Patra (supra) that a registered document carries
weightage. Be that as it may, such contention of the plaintiff/petitioner
cannot be accepted in view of the fact that the decision observes that
though a registered document raises a presumption under Section 114
(Illustration e) of the Evidence Act but due attestation of the Will cannot be
presumed merely because the Will was registered.
In view of the above discussions, let there be an order in terms of
prayer (c) of the petition.
Caveat, accordingly, stands discharged.
7
The suit is decreed in terms of prayer (c) of the petition.
The department is directed to draw up and complete the decree as
expeditiously as possible.
Urgent photostat certified copy of this judgment be supplied to the
parties, if applied for, upon compliance of all requisite formalities.
(BIVAS PATTANAYAK, J.)
pa