Calcutta High Court
Indrajit Banerjee vs Samir Kumar Chatterjee & Ors on 28 July, 2025
IN THE HIGH COURT AT CALCUTTA
(Testamentary & Intestate Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
TS No. 30 of 2015
(PLA No. 189 of 2014)
IN THE GOODS OF :
SMT. KIRONBALA DEBI ALIAS KIRONBALA BANERJEE (DECEASED)
-AND-
INDRAJIT BANERJEE
-VS-
SAMIR KUMAR CHATTERJEE & ORS.
Mr. Suman Kr. Dutt, Sr. Adv.
Ms. Monica Jaiswal
Ms. Debjani Ghosh
Ms. Nasifa Yasmin
Ms. Deblina Banerjee
.....for the plaintiff
Mr. Kallol Basu, Sr. Adv.
Mr. Arif Ali
Mr. Gupta Nath Prasad
2
Mr. Samik Sarkar
.....for the defendants.
Hearing Concluded On : 20.06.2025
Judgment on : 28.07.2025
Krishna Rao, J.:
1. The plaintiff has initially filed an application being PLA No. 189 of 2014
for grant of Letters of Administration of the last Will and Testament of
deceased, Smt. Kironbala Debi alias Kironbala Banerjee dated 18th
July, 1986. On issuance of Special Citation out of total 17 legal heirs of
the testatrix, only three legal heirs have filed caveats and affidavits in
support of caveat. On receipt of caveats and affidavits in support of
caveat, the application for grant of Letters of Administration is
converted as Testamentary Suit No. 30 of 2015.
2. FACTS OF THE CASE:
a. The plaintiff, Indrajit Banerjee, son of late Dipti Lal Banerjee @ Dipak
Banerjee is one of the grandsons of the testatrix. The testatrix died on
23rd January, 1993, leaving behind the following legal heirs:
i. Priya Lal Banerjee (since deceased) – Son :
Priya Lal Banerjee died leaving behind his wife Monika Banerjee
(daughter in law of the testatrix) and Monika Banerjee died leaving
behind (i) Partha Banerjee, Son and (ii) Krishna Das, daughter,
(Grandson and granddaughter of the testatrix).
3ii. Moni Lal Banerjee (since deceased) – Son :
Moni Lal Banerjee died leaving behind (i) Ila Banerjee, wife
(Daughter in law of the testatrix) (ii) Abhijit Banerjee, Son, (iii)
Chandana Sarkar, Daughter and (iv) Maitreyi Chatterjee,
Daughter, (Grandson and granddaughters of the testatrix).
iii. Phani Lal Banerjee (since deceased) – Son :
Phani Lal Banerjee died leaving behind his wife Arati Banerjee
(Since Deceased), (i) Subhajit Banerjee, Son, (ii) Surojit Banerjee,
Son and (iii) Sangita Mukherjee, Daughter, (Grandsons and
granddaughter of the testatrix).
iv. Dipti Lal Banerjee (since deceased) – Son :
Dipti Lal Banerjee died leaving behind his son, Indrajit Banerjee,
grandson of the testatrix (Plaintiff herein).
v. Renuka Chatterjee (since deceased) – Daughter :
Renuka Chatterjee died leaving behind her sons, Samir Kumar
Chatterjee and Sisir Kumar Chatterjee, (since deceased)
(Grandsons of the testatrix).
vi. Bulu Mukherjee (since deceased) – Daughter :
Bulu Mukherjee died leaving behind her sons, Pradip Mukherjee
and Prasanta Mukherjee (grandsons of the testatrix).
4vii. Chhabi Chatterjee (since deceased) – Daughter :
Chhabi Chatterjee died leaving behind her son, Kalyan Chatterjee
(grandson of the testatrix).
viii. Gita Mukherjee (since deceased) – Daughter :
Gita Mukherjee died leaving behind her husband, Sailendra
Kumar Mukherjee (Son in law of the testatrix), Nabanita
Mukherjee and Madhumita Jaiswal, daughters (grand-daughters
of testatrix).
b. The testatrix executed her last Will and Testament on 18th July, 1986
by appointing her third son, namely, Phani Lal Banerjee as sole
Executor of her last Will. The Executor died on 22nd June, 2003,
without applying for grant of probate of the said Will. By the said Will,
the testatrix bequeathed the land measuring an area of 30 Kattahs with
all building and structures standing thereon at premises no. 2, Tangra
2nd Lane, comprised in Holding No. 171, Police Station, Tangra to her
youngest son, Dipti Lal Banerjee alias Dipak Banerjee and after the
death of Dipti Lal Banerjee, his son Indrajit Banerjee, the plaintiff shall
get the said landed property.
c. Dipti Lal Banerjee died on 1st September, 2005. The wife of Dipti Lal
Banerjee, namely, Ranu Banerjee died on 14th April, 2013. The plaintiff
being one of the beneficiary of the Will has filed the present suit for
grant of Letters of Administration.
5
3. SUBMISSIONS OF THE PLAINTIFF:
a. Mr. Suman Dutt, Learned Senior Advocate representing the
plaintiff submits that the Will has been executed by the testatrix in
presence of two attesting witnesses. One of the attesting witnesses
is Dr. Mihir Kumar Dutta, who was also the family physician and
the other Mr. Sites Sinha who was the practicing Advocate of the
High Court at Calcutta. The Will was drafted by Shri Samarjit
Gupta, Advocate and he has also signed the said Will as a
draftsman.
b. Mr. Dutt submits that in the Will, it is recorded that each and
every word of this Will has been read out and translated and
explained in Bengali to me by my Learned Advocate Shri Samarjit
Gupta which proves that the Learned Advocate read over and
explained the Will to the testatrix.
c. Mr. Dutt submits that the signature of the testatrix is not disputed
by the defendants. The allegation of the defendants that the
signature has not been made voluntarily. He submits that the
defendants have not produced any evidence to prove the allegation
of fraud. Mr. Dutt submits that on comparison of signature of
Exhibit “H” i.e. letter to the Collector by the testatrix dated 21st
March, 1983 and signatures appearing in the Will clearly shows
that the testatrix has signed the Will.
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d. Mr. Dutt submits that the Will is a registered document executed
in the year 1986 which shows that the testatrix has presented the
Will and the signatures of the testatrix before the Registrar was
identified by an Advocate, the existence of Will cannot be disputed
and the plaintiff is entitled to get benefit of presumption under
Section 114 of the Indian Evidence Act.
e. Mr. Dutt submits that two attesting witnesses have signed the Will
but both the attesting witnesses have passed away. He submits
that Dr. Mihir Kumar Dutta died on 25th May, 2014 and Advocate
Sites Sinha died on 27th January, 2009. He submits that Dr. Dutta
was a family physician and well acquainted with all the family
members, the same is not in dispute. He submits that Dr. Dutta
had also certified the death of the testatrix and her cause of death
on his letterhead dated 23rd January, 1993.
f. Mr. Dutt submits that in order to take recourse of Section 69 of
the Indian Evidence Act, 1872, on the prayer of the plaintiff
original records of the Pension Cell of Calcutta University
containing signature and hand writing of Dr. Dutta was produced
before the Registrar of this Court for the purpose of obtaining
expert report and as per the hand writing expert report i.e. P.W.1,
the signature appearing in the Will as attesting witness of Dr.
Dutta is that of the signatures appearing in the pension papers.
He submits that signature of one of the attesting witnesses was
admitted in the cross-examination by the defendants.
7g. Mr. Dutt submits that the testatrix has specifically described the
property as to the mode and manner to the disposition of her
property, goes to show that she was mentally alert and could
comprehend that the document, she had executed would be her
last Will and Testament.
h. Mr. Dutt relied upon the judgment in the case of Sameer Kapoor
Vs. State Through Sub-Division Magistrate South, New Delhi
& Others reported in (2020) 12 SCC 480 and submitted that the
proceedings filed for grant of probate or Letters of Administration
is not an action in law. It is very difficult and it will not be in order
to construe the proceedings for grant of probate or letters of
administration as applications coming within the meaning of an
“application” under Article 137 of the Limitation Act, 1963.
i. Mr. Dutt relied upon the judgment in the case of Satipada
Chatterjee Vs. Annakali Debya reported in 1953 SCC OnLine
Cal 233 and submitted that where the evidence of the attesting
witnesses is not specific but vague or doubtful or even where it is
conflicting upon the same material facts, the Court may take into
account the surrounding circumstances of the case and judge
from the same, whether the requirements of the statute have been
complied with.
j. Mr. Dutt relied upon the judgment in the case Kunwar Surendra
Bahadur Singh and Others Vs. Thakur Behari Singh and
8Others reported in AIR 1939 Privy Council 117 and submitted
that the endorsement shows that on 18th July, 1986, the testatrix
presented the Will at the Office of District Sub-Registrar, the
endorsement signed by the Sub-Registrar and the testatrix. The
endorsement records that one Samarjit Ghosh identified the
testatrix. The registered Will also proved that the testatrix
executed the Will in presence of two witnesses.
k. Mr. Dutt relied upon the judgment in the case of Bharpur Singh
and Others Vs. Shamsher Singh reported in (2009) 3 SCC 687
and submitted that a Will must be proved having regard to the
provisions contained in clause (c) of Section 63 of the Succession
Act, 1925 and Section 68 of the Evidence Act, 1872, in terms
thereof the propounder of a Will must prove its execution by
examining one or more attesting witnesses. If the validity of the
Will is challenged on the ground of fraud, coercion or undue
influence, the burden of proof would be on the caveator. He
submits that the caveators have not proved their burden that the
plaintiff has obtained the Will by way of fraud or coercion.
4. SUBMISSIONS OF THE DEFENDANTS:
a. Mr. Kallol Basu, Learned Senior Advocate representing the
defendants submits that the plaintiff has filed the suit for grant of
Letters of Administration after the period of 21 years from the date
of death of the testatrix. By the time of filing of the suit, two
9attesting witnesses, executor and first beneficiary of the Will
passed away and due to which the execution of Will, mental
stability of the testatrix and whether the Will is executed of own
free will and volition is not proved.
b. Mr. Basu submits that the plaintiff deliberately delayed in filing of
the proceeding. He submits that the plaintiff admits that he was
present at the time of execution of the Will which proves that the
plaintiff had the knowledge about the Will since the date of
execution.
c. Mr. Basu submits that the Executor was the second son of the
testatrix but during his life time, he choose not to propound the
Will and the plaintiff has not explained the same as to why the
Executor has not filed any case for grant of probate of the alleged
Will. He submits that one of the attesting witnesses, namely, Dr.
Mihir Kumar Dutta was a family physician and used to treat the
family of the plaintiff and family of the Executor but no
explanation is given why Dr. Dutta was silent for so many years
and how it is possible that he has not disclosed the execution of
Will by the testatrix in the year 1986 till his death.
d. Mr. Basu submits that the plaintiff tried to establish the signature
of the testatrix by comparing it with a letter being Exhibit- “H”. The
letter dated 21st March, 1983 was signed as ‘Kiron Bala Deby’ but
there is no signature of testatrix signing as ‘Kiron Bala Deby alias
10Banerjee’ or ‘Kiron Bala Deby (Banerjee)’. He submits that the
signature is extremely shaky and is not usual signature of the
testatrix.
e. Mr. Basu submits that the plaintiff did not bring any witness of
alleged execution of the Will. As per evidence of the plaintiff, one,
Madhu Sudhan Parida was an attending witness who was allegedly
present at the time of execution of the Will. There is no evidence to
prove that the testatrix has executed her Will in presence of any of
the witnesses. Mr. Basu relied upon the judgment in the case of
Moturu Nalini Kanth Vs. Gainedi Kaliprasad (Dead, Through
Lrs.) reported in 2023 SCC OnLine 1488 and submitted 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.
f. Mr. Basu submits that in the Will, the description of the ownership
of the land in question is wrong. The testatrix has bequeathed the
entire property in question, as if she is the full owner of the
property in question. The testatrix as well as the entire family was
fully aware that the property in question was owned by testatrix
along with her step son, Priya Lal Banerjee.
11g. Mr. Basu submits that the name of the testatrix has been wrongly
written as ‘Smt. Kironbala Debi alias Kironbala Banerjee’ but the
testatrix used to write her name as ‘Deby’ and not ‘Debi’. Testatrix
always used to writ ‘Kiron Bala’ and not ‘Kironbala’. The testatrix
never used the name ‘Krionbala Banerjee’ and always used and
signed as ‘Kiron Bala Deby’. Mr. Basu relied upon the judgment in
the case of Bharpur Singh & Others Vs. Shamsher Singh
reported in (2009) 3 SCC 687 and submitted that the Will relied
by the plaintiff is shroud by suspicious circumstances.
h. Mr. Basu relied upon the judgment in the case of Murthy &
Others Vs. C. Saradambal and Others reported in (2022) 3 SCC
209 and submitted that the propounder of the Will must examine
one or more attesting witnesses and the onus is placed on the
propounder to remove all suspicious circumstances with regard to
the execution of the Will but in the present case, there is no
evidence that the testatrix have signed her last Will in presence of
any witness while possessing good health and fit state of mind.
5. EVIDENCES OF THE PARTIES:
a. The plaintiff is support of his case, has examined two (2)
witnesses, namely:
1. Rajani Kanta Das …. P.W.1 (Hand writing expert)
2. Indrajit Banerjee …. P.W.2 (Plaintiff)
12b. During evidence of the plaintiff’s witnesses altogether thirteen (13)
documents were exhibited which are as follows:
i. Exhibit – A (Collectively) : Copy of a report of the
handwriting expert dated 10th November, 2017.
ii. Exhibit – B : Original copy of the death certificate of
Kiran Bala Banerjee dated 23rd January, 1993.
iii. Exhibit – C, C/1, C/2, C/3 & C/4 (Collectively) :
Original Will of Smt. Kiran Bala Banerjee along with
signatures of the witnesses.
iv. Exhibit – D : Original copy of the Death Certificate of
Phani Lal Banerjee dated 22nd June, 2003.
v. Exhibit – E : Copy of a family chart of Smt. Kiran Bala
Debi @ Kiran Bala Banerjee.
vi. Exhibit – F : Original copy of the death certificate of
Dipak Banerjee @ Dipti Lal Banerjee dated 1st
September, 2005.
vii. Exhibit – G : Original copy of the death certificate of
Ranu Banerjee dated 14th April, 2013.
viii. Exhibit – H : Copy of a letter dated 21st March, 1983
issued by the Collector, Corporation of Calcutta for
payment of tax.
ix. Exhibit – I : Copy of a document issued by the
Collection Department, Kolkata Corporation on 4th April,
1983 acknowledging cheque issued by Smt. Kiran Bala
Debi.
13
x. Exhibit – J : Original copy of the death certificate of Dr.
Mihir Kumar Dutta dated 25th May, 2014.
xi. Exhibit – K : Copy of a document issued by
Government of West Bengal of Health & Family Welfare
issued after the death of Sites Sinha on 27th
January, 2009.
xii. Exhibit – L : Copy of a prescription issued by Dr. Mihir
Kumar Dutta certifying the cause of death of Smt. Kiran
Bala Banerjee issued on 23rd January, 1993.
xiii. Exhibit – M (Collectively) : Copies of documents for
payment of pension of Dr. Mihir Kumar Dutta issued by
the Accounts Officer of Calcutta University along with
the application for pension of Dr. Mihir Kumar Dutta
and his service book.
During cross-examination of the P.W.2 from the side of
defendants, one document is exhibited as:
xiv. Exhibit – N : Copy of a letter dated 6th April, 1979
issued by Mani Banerjee addressing the Director of
Technical Education.
c. The defendants have adduced one witness as D.W.1, namely:
1. Nabanita Mukherjee – D.W.1.
During examination of the defendant’s witness, the defendants
have exhibited one document marked as “Exhibit – 1”.
14
i. Exhibit 1: Copy of a document dated 13th October, 2015
from Kolkata Municipal Corporation sent as a reply of the RTI
seeking information by the defendants.
6. DECISION WITH REASONS:
a. The plaintiff has filed the suit praying for a decree for grant of
Letters of Administration of the last Will and Testament dated 18th
July, 1986 of the testatrix, Kiron Bala Debi @ Kiron Bala Banerjee
who died on 23rd January, 1993. As per the case of the plaintiff,
the testatrix had bequeathed both movable and immovable
properties to all her legal heirs as per the Will and as such the Will
cannot be treated as unnatural Will. The description of the
property bequeathed to all the legal heirs of the testatrix are as
follows :
“(d). I give, devise and bequeath to my Grant
son Partha Banerjee, son of Priyalal Banerjee, all
that piece and parcel of land measuring about 9
Kattahs in area being C.S. Plot No.601. Khatian No.
602 of Mouza South Tangra, being a portion of
premises No. 47, South Tangra Road, butted and
bounded by on the North by Municipal Road, On
the East by Prahlad Sarkar’s land. On the South by
tank of holding No.82, and on the West by Holding
No. 84/85, and all structures standing thereon,
which is now under the occupation and tenants.
(e). I further give, devise and bequeath to my
youngest son Dipti Lal Banerjee (Jhunu) all and my
every household furniture, linen and wearing
apparel, books etc. which are lying in premises
No.2, Tangra, 2nd Lane, Calcutta.
(f). I was required to make payment of
Rs.50,000/- (Rupees fifty thousand only) to my
oldest non Priyalal Banerjee and since I had no
15sufficient fund my youngest son Diptilal Banerjee
made of arrangement for the fund and paid the
said sum of Rs. 50,000/- (Rupees fifty thousand)
on my behalf and I have not been able to repay the
said amount to said Sri Diptilal Banerjee. I have a
mind to dispose of 17 ½ Kathas of land of my
Deoghar Property, the details of which are given
hereunder and out of the sale proceed of the same I
shall repay the said sum of Rs. 50,000/- to my
youngest son Diptilal Banerjee as well as
Rs.5000/- (Rupees five thousand only) to my third
son Phanilal Banerjee which I took from him for my
personal use/ as a loan and which I could not
repay him upto now.
If it is not possible for me for any reason
whatsoever to dispose of the said property finally
during my life time and to repay the said sum of
Rs.50,000/- and Rs. 5000/- to my aforesaid two
sons in that event the said property vis., all that
piece and parcel of the land measuring 17 ½
Kathas of land being Plot No. 13 of Kasturipur town
of Deoghar, within Rohini Estate P.S. Deoghar,
District Dumka of Bihar butted and bounded by on
the North by Land of K. J. K. Dey, On the East by
Road, On the South the land Kalicharan Bar and
on the West by Rami Bar. Should be sold out to the
highest buyer by my executor Sri Phanilal Banerjee
and out of the said sale proceeds the aforesaid
sums of Rs. 50,000/- and Rs. 5,000/- should be
paid to my said sons Diptilal Banerjee and Phanilal
Banerjee respectively and the balance sale
proceeds if any should be considered as my
moveable asset and the same to be distributed
along with my other monies lying with the Banks
as per my instructions given hereunder.
A sum of Rs. 500/- (Rupees five hundred)
should be paid to Rama Krishna Mission from my
account.
(f). All my monies are lying in the following
accounts and certificates :-
(1). Savings Bank Account No. 11/3305,
Bank of Baroda, Park Circus Branch.
(2). Savings Bank Account No. 859756,
Grindlays Bank Ltd. Entally Branch,
16(3). The following Cash Certificates of West
Bengal State Co-Operative Bank Ltd.
(a). Certificate No. CC-09153 for Rs.5000/-
to mature on 3. 10. 87.
(b). Certificate No. CC-09152 for Rs. 5000/-
to mature on 3. 10. 87.
(c). Certificate No. CC-09171 for Rs. 2000/-
to mature on 30. 12. 87.
I give, devise and bequeath the aforesaid
certificate No. CC-09153 or the amount receivable
from the said Certificate Jointly to my two
daughters Tulu Chatterjee wife of Sri Shib
Chatterjee and Bulu Mukherjee wife of Prafulla
Mukherjee to have and hold the same in equal
share.
I give, devise and bequeath the aforesaid
certificate No. CC-09152 or the amount receivable,
to my other two daughters Jointly Smt. Chabi
Chatterjee wife of Abani Chatterjee and Smt. Gita
Mukherjee wife of Soilen Mukherjee to have and to
hold the same in equal share.
I give, devise and bequeath the aforesaid
certificate No. CC-09171 or the amount receivable
from the same jointly to my two daughter in laws
Smt. Ila Banerjee wife of Manilal Banerjee and
Smt. Arati Banerjee wife of Phanilal Banerjee to
have and to hold the same in equal share.
I give, devise and bequeath, out of the said
Savings Bank Account a sum of Rupees Five
Hundred (Rs. 500/-) to my servants Bonamali who
has been discharging his duties to my satisfaction
for a pretty long time.
I give, devise and bequeath, the balance sum
of money lying in my aforesaid two Saving Bank
Accounts and from my other available money as far
as possible equally to my following grand sons and
grand-daughters
1). Mana Banerjee Son of Manilal
Banerjee
17
2). Raju Banerjee
Sons of Phanilal
Banerjee
3). Bhaju Banerjee
4). Indrajit Banerjeee Son of Diptilal
Banerjee
5). Badal Chatterjee
Sons of Shiv
Chatterjee
6). Madal Chatterjee
7). Smt. Tanu
Mukherjee Daughter of Soilen
Mukherjee
8). Smt. Kiku
Mukherjee
9). Partha Banerjee Son of Priyalal
Banerjee
10). Rana Mukherjee
Sons of Prafulla
11). Tatu Mukherjee Mukherjee
12). Kalyan Chatterjee Son of Abani
Chatterjee
h). Subject to above specific devise and
bequeath the rest and residue of my estate,
moveable and immoveable, including future assets
if any acquired by me absolutely and favour unto
the use of my daughter-in-law. Smt. Arati Banerjee
wife of Sri Phanital Banerjee.
i). I appoint my third son Sri Phanilal Banerjee
son of late Jogendra Kumar Banerjee to be the sole
executor of my this Will.”
b. It is admitted that both the attesting witnesses of the Will, namely,
Dr. Mihir Kumar Dutta and Advocate, Sites Sinha are no more and
thus, there is no chance of the plaintiff to examine any attesting
18
witnesses. To prove the signature of the testatrix, the plaintiff has
relied upon Exhibit “H” which is the letter submitted by the
testatrix during her lifetime on 21st March, 1983 to the Collector,
Corporation of Calcutta with regard to payment of tax. By referring
the signature of the testatrix appearing in Exhibit “H” and the
signatures appearing in the Will, Exhibit “C”, it was argued that on
comparing of signatures appearing in Exhibit “H” and Exhibit “C”,
it is proved that the signatures appearing in the Will is of the
testatrix.
c. This Court has considered the signatures appearing in Exhibit “H”
and Exhibit “C” and found that in Exhibit “H”, the testatrix has
signed the said document as ” ” and in Exhibit
“C”, the signature of the testatrix is appearing in two places at
page no. 7 and one signature reads as follows : ”
” and another signature appearing as
” “. Considering the three signatures, this
Court finds that the signatures appearing in the Will are shaky. In
one signature, the title “Banerjee” is written in the bracket and in
another signature, title “Banerjee” is written in bracket with the
word ‘alias’ but in Exhibit “H”, the signature is not shaky and
19properly signed as “Kiran Bala Deby” and title “Banerjee” is not
written.
d. The plaintiff has also argued that the Will i.e. Exhibit “C” is a
registered Will and executed in the 1986 and as per the seal
appearing in the said Will proves that the testatrix has presented
the Will for registration on 18th July, 1986 and thus it cannot be
disputed that the testatrix has not executed the Will. The plaintiff
has relied upon Section 114 of the Indian Evidence Act, 1872.
Section 114 of the Indian Evidence Act, 1872, reads as follows:
“114. Court may presume existence of
certain facts.– The Court may presume the
existence of any fact which it thinks likely to have
happened, regard being had to the common course
of natural events, human conduct and public and
private business, in their relation to the facts of the
particular case.”
The plaintiff has prayed for decree for grant of Letters of
Administration of the Will dated 18th July, 1986, admittedly the
said document is registered one. The Will is to be proved as per
Section 63 of the Indian Succession Act, 1925 and Section 68 and
Section 69 of the Indian Evidence Act, 1872 by examining one of
the attesting witnesses of the Will and in case, the attesting
witness is not available, attending witness is to be examined to
prove that the testatrix has executed her Will in their presence.
But in the present case, neither the attesting witnesses nor the
attending witnesses were examined to prove that the Will was
executed by the testatrix while possessing good health and fit state
20
of mind. The plaintiff has relied upon the registration of the Will
but the plaintiff has not examined either the Sub-Registrar or any
of the employees of the Office of the Sub-Registrar to prove that
the testatrix was present in the Office of the Sub-Registrar and has
executed her Will in their presence. Thus mere registration of the
Will without examination of any attesting witness or the attending
witness to prove the Will was executed by the testatrix in their
presence, or any other circumstances to prove that Will was
executed by the testatrix, presumption cannot be drawn.
e. Proof of execution of the Will as mandated under Section 63 of the
Indian Succession Act, 1925 requires execution by the testatrix of
the Will in presence of two attesting witnesses who have seen the
testatrix signed in their presence and has signed the Will in
presence of the testatrix and in presence of each other. In the
present case, both the attesting witnesses are no more and as
such there is no evidence on record that the testatrix has signed
the Will in presence of two attesting witnesses or the two attesting
witnesses have signed the Will in presence of testatrix. The
plaintiff to prove the signature of one of the attesting witness,
namely, Dr. Mihir Kumar Dutta has called for the service record of
the said witness to compare the signature of the said witness
through expert and accordingly P.W.1 was engaged as expert to
compare the signature of Dr. Mihir Kumar Dutta from the
signatures appearing in the service record of the said witness, the
21
plaintiff has proved that the signature of Dr. Mihir Kumar Dutta
appearing in the Will is of the signature appearing in the service
record of the said witness. The plaintiff has to prove that the
testatrix has signed the Will in presence of two attesting witnesses,
the plaintiff need not to prove the signature of the attesting
witnesses. The attesting witness has to be examined before the
Court to say that the testatrix has signed the Will in their
presence. It is not required that the signature of the attesting
witnesses is to be proved. Thus, mere obtaining expert report with
regard to the signature of the attesting witnesses will not serve
purpose for proving the Will.
f. The plaintiff at the time of filing of an application for grant of
Letters of Administration being PLA No. 189 of 2014 has also filed
an affidavit of one Shri Madhu Sudan Parida, son of Late
Sudarshan Parida as an attending witness of the Will. In
paragraph 8 of the plaint also it is mentioned that the Will is
proved by the affidavit of Shri Madhu Sudan Parida but the said
Madhu Sudan Parida was not examined before the Court as an
attending witness. There is no evidence on record to prove that the
testatrix has executed her last Will and Testament on 18th July,
1986, either in presence of attesting witness or in presence of
attending witness.
22
g. Section 63 of the Indian Succession Act, 1925, reads as follows:
“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.
(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.”
h. In the case of Moturu Nalini Kanth vs. Gainedi Kaliprasad
(Dead, Through Lrs.) reported in 2023 SCC OnLine SC 1488,
the Hon’ble Supreme Court held that :
“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
Kadam, this Court held that the requirements in
clauses (a), (b) and (c) of Section 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
23each 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 Kataria.”
i. Sections 68 & 69 of the Indian Evidence Act, 1872, reads as
follows:
“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
(16 of 1908), unless its execution by the person
by whom it purports to have been executed is
specifically denied.]
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
24executing the document is in the hand writing of
that person.”
j. In the case of Murthy & Ors. vs. C. Saradambal & Ors. reported
in (2022) 3 SCC 209 , the Hon’ble Supreme Court held that:
“32. In fact, the legal principles with regard to
the proof of a will are no longer res integra. Section
63 of the Succession Act, 1925 and Section 68 of
the Evidence Act, 1872, are relevant in this regard.
The propounder of the will must examine one or
more attesting witnesses and the onus is placed on
the propounder to remove all suspicious
circumstances with regard to the execution of the
will.”
k. In the present case, though it is the case of the plaintiff that the
testatrix has executed her last Will and Testament dated 18th July,
1986 in presence of two attesting witnesses and in paragraph 8 of
the plaint, the plaintiff has named one attending witness, namely,
Madhu Sudan Parida and the said attending witness has also filed
an affidavit at the time of filing of an application for grant of
Letters of Administration being PLA No. 189 of 2014. Due to the
death of the attesting witnesses, it was not possible for the plaintiff
to examine the attesting witnesses to prove the Will in terms of
Section 63 of the Indian Succession Act, 1925 but the plaintiff
ought to have examined the attending witness, namely, Madhu
Sudan Parida but the plaintiff has neither examined the said
attending witness nor has explained why the plaintiff has not
examined the said attending witness. It is also the case of the
plaintiff that the Will was drafted by one Samarjit Gupta, Advocate
25
and he has signed the Will as a draftsman but the plaintiff has not
examined the said Advocate to prove that the testatrix has given
instruction to the Advocate to draft the Will and as per instruction,
the Learned Advocate drafted the Will.
In the instant case, there is no evidence as to whom the
testatrix has given instructions to write the Will. The subscriber
has also not examined. It is also not known as to whether the
assistance of an Advocate or any other trustworthy person was
taken by the testatrix in order to make the testament and
bequeath the property. Taking into consideration, the overall
evidence of the plaintiff, this Court finds that the plaintiff failed to
prove the execution of the Will by the testatrix.
l. The defendants have contended that the plaintiff has filed the suit
for grant of Letters of Administration after the period of 21 years
from the death of the testatrix. As per the evidence of the plaintiff,
after the death of his mother sometimes in the month of May,
2014, when he opened the almirah of his mother, he found the
original Will along with some original documents in her locker.
During the cross-examination of the plaintiff being P.W.2, the
question nos. 192 to 194 reads as follows:
“Q. 192. When did your parents receive the
Will from your “sejo jethu”?/ I would not be exactly
aware of the dates.
Q. 193. Since your father died on 1.9.2005 –
would you agree it must be before that date?/Yes.
26
Q. 194. Was the original Will given to your
parents or the photocopy?/As my mother
mentioned it was original Will.”
7. In the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma &
Ors. reported in AIR 1959 SC 443, the Hon’ble Supreme Court held
that the propounder of the Will must prove:
(i) That the Will was signed by the testator in a sound and
disposing state of mind duly understanding the nature
and effect of dispositions and he put his signature on the
document of his own free will, and
(ii) When the evidence adduced in support of the Will is
disinterested, satisfactory and sufficient to prove the
sound and disposing state of testator’s mind and his
signature as required by law, courts would be justified in
making a finding in favour of propounder, and
(iii) If the Will is challenged as surrounded by suspicious
circumstances, all such legitimate doubts have to be
removed by cogent, satisfactory and sufficient evidence
to dispel suspicion. In other words, the onus on the
propounder can be taken to be discharged on the proof,
the essential facts indicated therein.
In paragraph 20 of the said judgment, the Hon’ble Supreme Court
held that:
27
“20. There may, however, be cases in which
the execution of the will may be surrounded by
suspicious circumstances. The alleged signature of
the testator may be very shaky and doubtful and
evidence in support of the propounder’s case that
the signature, in question is the signature of the
testator may not remove the doubt created by the
appearance of the signature; the condition of the
testator’s mind may appear to be very feeble and
debilitated; and evidence adduced may not
succeed in removing the legitimate doubt as to the
mental capacity of the testator; the dispositions
made in the will may appear to be unnatural,
improbable or unfair in the light of relevant
circumstances; or, the will may otherwise indicate
that the said dispositions may not be the result of
the testator’s free will and mind. In such cases the
court would naturally expect that all legitimate
suspicions should be completely removed before
the document is accepted as the last will of the
testator. The presence of such suspicious
circumstances naturally tends to make the initial
onus very heavy; and, unless it is satisfactorily
discharged, courts would be reluctant to treat the
document as the last will of the testator. It is true
that, if a caveat is filed alleging the exercise of
undue influence, fraud or coercion in respect of the
execution of the will propounded, such pleas may
have to be proved by the caveators; but, even
without such pleas circumstances may raise a
doubt as to whether the testator was acting of his
own free will in executing the will, and in such
circumstances, it would be a part of the initial onus
to remove any such legitimate doubts in the
matter.”
a. The plaintiff being P.W.2, in his examination-in-chief stated that
he got the Will from the almirah of his mother sometimes in the
month of May, 2014 but during the cross-examination, he has
admitted that his parents received original Will from his “sejo
jethu” i.e. the third elder parental uncle and he has also agreed
that it must be before the death of his father i.e. on 1st September,
28
2005 and he has also admitted that his mother had the knowledge
about the Will. There is no explanation, as to why the executor
during his lifetime has not filed any application for grant of
probate. As per the answer given by the plaintiff during his cross-
examination, the father of the plaintiff died on 1st September, 2005
and mother of the plaintiff died on 14th April, 2013. The plaintiff in
his answer at Question No. 193, admitted that his parents received
the Will from “sejo jethu” prior to 1st September, 2005 but the
plaintiff has failed to explain why the father has not initiated any
proceeding for grant of probate of the Will, though the father of the
plaintiff, namely, Dipti Lal Banerjee was also one of the beneficiary
of the Will.
b. It is the case of the plaintiff that one of the attesting witness
namely, Dr. Mihir Kumar Dutta died on 25th May, 2014 and was
the family doctor but it is impossible to believe that the said
attesting witness even after the death of the testatrix on 23rd
January, 1993, has not disclosed about the execution of the Will
by the testatrix on 18th July, 1986 to any of the family members.
c. In the case of Bharpur Singh & Ors. vs. Shamsher Singh
reported in (2009) 3 SCC 687, the Hon’ble Supreme Court held
that :
“23. Suspicious circumstances like the
following may be found to be surrounded in the
execution of the will:
29
(i) The signature of the testator may be
very shaky and doubtful or not appear to be
his usual signature.
(ii) The condition of the testator’s mind
may be very feeble and debilitated at the
relevant time.
(iii) The disposition may be unnatural,
improbable or unfair in the light of relevant
circumstances like exclusion of or absence of
adequate provisions for the natural heirs
without any reason.
(iv) The dispositions may not appear to be
the result of the testator’s free will and mind.
(v) The propounder takes a prominent
part in the execution of the will.
(vi) The testator used to sign blank
papers.
(vii) The will did not see the light of the
day for long.
(viii) Incorrect recitals of essential facts.”
8. In the present case, the testatrix died on 23rd January, 1993 and the
Executor of the Will, namely, Phani Lal Banerjee died on 22nd June,
2003 i.e. after the period of more than 10 years but during the life time,
the Executor has not filed any application for grant of probate. The
father of the plaintiff also one of the beneficiary of the Will and died on
1st September, 2005 and as per evidence of the plaintiff, the parents of
the plaintiff had the knowledge of the Will but the father of the plaintiff
has also not filed any application for grant of Letters of Administration.
This Court already held that the signature of the testatrix is shaky and
the signature appearing on the Will contains the title “Banerjee” but
30
there is no evidence brought on record that the testatrix used to sign by
mentioning the title “Banerjee”.
9. CONCLUSION:
The burden of proof that the Will has been validly executed and a
genuine document is on the propounder. The propounder is also
required to prove that the testatrix has signed the Will and she put her
signature out of her own free will having a sound disposition of mind
and understood the nature and effect thereof.
In the present case, this Court finds that the plaintiff has failed to
prove that the testatrix has executed her last Will and Testament in
presence of two attesting witnesses while possession good health and fit
state of mind.
In view of the above, T.S. No. 30 of 2015 (PLA No. 189 of 2014)
is dismissed. All connected applications, if any, are also disposed of.
Decree be drawn accordingly.
(Krishna Rao, J.)