Calcutta High Court
Sri Pradip Kumar Benia vs Smt. Sova Gupta on 16 June, 2025
IN THE HIGH COURT AT CALCUTTA
(Testamentary & Intestate Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
TS No. 20 of 2016
IN THE GOODS OF :
MANTU DEBI BENIA (DECEASED)
-AND-
SRI PRADIP KUMAR BENIA
-VS-
SMT. SOVA GUPTA
Mr. Meghnad Dutta, Adv.
Mr. Lalratan Mondal, Adv.
.....for the plaintiff
Mr. Aniruddha Mitra, Sr. Adv.
Mr. Sib Sankar Das, Adv.
.....for the defendant
Hearing Concluded On : 24.04.2025
Judgment on : 16.06.2025
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Krishna Rao, J.:
1. The plaintiff had initially filed an application being PLA No. 31 of 2015
for grant of probate of the Last Will and Testament dated 30th May,
2000 of the testatrix Mantu Debi Benia.
2. Smt. Sova Gupta, W/o Late Sankar Gupta, daughter of Late Mantu
Debi Benia has filed caveat and affidavit is support of caveat in PLA No.
31 of 2015 and on receipt of affidavit in support of caveat, the Probate
Application was converted to a Testamentary Suit No. 20 of 2016.
3. The said Mantu Debi Benia (since deceased) was the widow of Late
Mahavir Prasad Benia. The husband of the testatrix was predeceased to
her who died on 23rd March, 1969. In the wedlock between Mantu Debi
Benia and Mahabir Prasad Benia, two sons, namely, Pradip Kumar
Benia, Sunil Kumar Benia and three daughters, namely, Sova Gupta,
Tilotama Gupta and Susma Gupta were born.
4. Mantu Debi Benia died on 9th June, 2000. During her lifetime, she had
executed her Last Will and Testament on 30th May, 2000 and appointed
the plaintiff, her eldest son, namely, Pradip Kumar Benia, as sole
executor of her Last Will and Testament.
5. The caveatrix submits that the last Will and Testament dated 30th May,
2000, is not genuine and the thumb impression of the deceased/
testatrix on the Will is also not genuine. It is also alleged by the
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caveatrix that the deceased was not in sound mind and had no capacity
to understand the implication for execution of her Will and Testament.
6. The caveatrix further alleged that the execution of the Will is
surrounded by suspicious circumstances and is procured or
manufactured by the son of the deceased under suspicious
circumstances.
7. The caveatrix also alleged that the property which the testatrix has
bequeathed in her alleged last Will and Testament, the testatrix is not
the owner of the said property.
8. During pendency of the suit, one of the sons of the testatrix, namely,
Sunil Kumar Benia died on 20th June, 2023 who is also one of the
beneficiary of the last Will and Testament. After his death on an
application of the plaintiff, this Court recorded the death of Sunil
Kumar Benia and his legal heirs were brought on record. The legal
heirs have filed their affidavit of consent stating that they have no
objection for grant of probate to the plaintiff.
9. Considering the pleadings of both the parties, the following issues were
framed:
(i) Whether the Will dated 30th May, 2000,
executed by Mantu Debi Benia, since
deceased, is the last Will of the testator?
(ii) Whether the said Will is executed by Mantu
Debi Benia, since deceased, or not?
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(iii) Whether Mantu Debi Benia, since deceased,
had mental capacity and sound mind to
understand the meaning and contents of the
Will and Testament dated 30th May, 2000,
before the execution thereof?
(iv) Whether the Will and Testament dated 30th
May, 2000, is genuine or has been executed to
be practising fraud or is there any suspicious
circumstances with regard to the genuineness
while the Will was executed?
(v) Whether the Executor is entitled to grant of
Probate of the Will and Testament dated 30th
May, 2000, executed by Mantu Devi Benia,
since deceased, as prayed for?
10. The plaintiff in order to prove his case, has examined 3 (three)
witnesses, namely:
i. P.W.1 – Anand Kumar Lal, one of the attesting
witnesses of the Will.
ii. P.W.2 – Tilottama Gupta, one of the daughters
of the deceased/testatrix.
iii. P.W.3 – Pradip Kumar Benia, the executor of
the Will and son of the deceased/testatrix.
11. During evidence of the plaintiff’s witnesses altogether 5 (Five)
documents were marked as “Exhibit – A to Exhibit – E” which are as
foloows:
Exhibit – A: Copy of the last Will and Testament dated 30th
May, 2000 of Mantu Debi Benia, since deceased.
Exhibit – A/1: Left Thumb Impression of Mantu Debi Benia
(since deceased), appearing on the first page bottom of the Will.
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Exhibit – A/2: Left Thumb Impression of Mantu Debi Benia
(since deceased), appearing on the first page bottom of the Will,
identified by Anand Kumar Lal, one of the attesting witnesses
of the Will.
Exhibit – A/3: Left Thumb Impression of Mantu Debi Benia
(since deceased), appearing on the second page, top right of the
Will.
Exhibit – A/4: Left Thumb Impression of Mantu Debi Benia
(since deceased), appearing on the second page, bottom of the
Will.
Exhibit – A/5: Signature of Anand Kumar Lal, appearing on
the second page on the bottom of the Will.
Exhibit – A/6: Left Thumb Impression of Mantu Debi Benia
(since deceased), appearing on the third page of the Will.
Exhibit – A/7: Signature of Anand Kumar Lal, identifying Left
Thumb Impression of Mantu Debi Benia (since deceased).
Exhibit – A/8: Signature of Anand Kumar Lal as attesting
witness.
Exhibit – A/9: Signature of Ashis Kumar Gupta, the other
attesting witness.
Exhibit – A/10: Signature of M. Dasgupta, the Learned
Advocate who read over and explained the contents of the Will
to the Testatrix.
Exhibit – B: Copies of two rent receipts, one from the year
1996 and the other is from the year 1999.
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Exhibit – C: Copy of the death certificate of Mantu Debi Benia,
dated 9th June, 2000.
Exhibit – D: Copy of the sanctioned plan issued by Howrah
Municipality.
Exhibit – E: Copy of an agreement with the Contractor,
namely, Rajkumar Jaiswal, dated 08.01.1985, regarding
construction of a building on the premises, 17/4/1, Hat Lane,
Howrah.
12. The defendant in order to prove her case, has examined 2 (two)
witnesses, namely :
i. D.W.1- Ms. Sova Gupta, (Caveatrix) one of the
daughters of the deceased/testatrix.
ii. D.W.2- Mr. Rajesh Gupta, son of Ms. Sova
Gupta and grand-son of the
deceased/testatrix.
13. During evidence of the defendant’s witnesses, the defendant had also
adduced altogether 7 (seven) documents and were marked as Exhibit –
“1” to Exhibit – “7” which are as follows:
Exhibit – 1: Copy of a Title Suit being No. 25 of 2010 filed by
Ms. Sova Gupta.
Exhibit – 2: Copies of application dated 20th August, 2015,
under Right to Information Act and its reply dated 21st August,
2015 from Howrah Municipal Corporation along with the
official translated copies of the report of the Howrah
municipality are marked and exhibited collectively.
7Exhibit – 3: Copy of a written statement filed by Pradip Kumar
Benia and Sunil Kumar Benia, in the Title Suit No. 25 of 2010.
Exhibit – 4: Copies of Advocate’s letter dated 26th August,
2017, which is sent by RTI to BSNL and another copy of a reply
of the same sent by BSNL are marked and exhibited
collectively.
Exhibit – 5: Certified copy of the Vakalatnama filed by Dilip
Kr. Roy, advocated appearing on behalf of Pradip Kumar Benia
and Sunil Kumar Benia dated 30.04.2010 along with the copy
of a written statement filed on behalf of the said parties.
Exhibit – 6: Copy of a letter dated 25th April, 2019.
Exhibit – 7: Copy of a document dated 21st June, 2019,
issued by Dr. Ratul Chatterjee, certifying that the textatrix was
under his treatment for one year.
14. P.W.1, Anand Kumar Lal is one of the attesting witnesses of the Last
Will and Testament dated 30th May, 2000. In his evidence, the P.W.1
has stated that he knows the testatrix Mantu Debi Benia and in his
presence and in presence of another attesting witness, namely, Ashis
Kumar Gupta and the Advocate Mr. M. Dasgupta, the testatrix has
executed her last Will and Testament in her house while she was
mentally and physically fit. In his evidence, the P.W.1 has also stated
that before execution of the Will by the testatrix, the Will was read over
and explained to her by the Learned Advocate in Hindi language.
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15. P.W.1 has identified the Will and the same is marked as Exhibit – “A”.
On his identification thumb impressions of testatrix in the Will are
marked as Exhibit “A/1”, “A/3”, “A/4” and A/6. In the Will, P.W.1
through his pen at pages 1, 2 and 3 has made endorsement “L.T.I. of
Mantu Debi Benia identified by me” and he has put his signatures in all
pages and are marked as Exhibit- “A/2”, “A/5” and “A/7”. His
signature as attesting witness is marked as Exhibit “A/8”. P.W.1 also
identified the signature of another attesting witness, namely, Asis
Kumar Gupta and the signature of Asis Kumar Gupta is marked as
Exhibit “A/9”. P.W.1 also identified the signature of Advocate, M.
Dasgupta and marked as Exhibit- “A/10”.
16. P.W.2, Smt. Tilottama Gupta who is one of the daughters of the
testatrix and also one of the beneficiaries of the Last Will and
Testament, has stated regarding details of legal heirs of the testatrix
and the property left behind by her mother. In her evidence, she has
stated that her mother used to collect monthly rent from tenants of the
building but her mother was not conversant in writing and reading and
as per verbal instructions of her mother, P.W.2 used to write rent
receipts and she also used to collect monthly rent on behalf of her
mother. The rent receipt books were marked as Exhibit- “B”
Collectively. The P.W.2 denied the suggestions made by the Learned
Advocate for the defendant that the testatrix was admitted in the
hospital because of cerebral attack.
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17. In cross examination, she has stated that when her mother used to
come to the ground floor she used to tell P.W.2 that she would execute
a Will. But P.W.2 had no knowledge as to when did she actually execute
the Will. She further stated that she came to know about the Will from
her brother Pradip Kumar Benia who informed her that her mother has
executed a Will. At the time of cross-examination of P.W.2, copy of
plaint of T.S. No. 25 of 2010 filed before the Learned First Civil Judge,
Senior Division at Howrah was shown to her and she has admitted that
the same is the copy of plaint filed by Pradip Kumar Benia. The copy of
plaint is marked as Exhibit- “1”.
18. At the time of cross-examination of P.W.2, a reply received under Right
to Information Act dated 21th August, 2015 was shown to the witness
wherein the cause of death of the testatrix was recorded as Acute
Palmona Edema in a case of Rheumatic Heart disease with C.V.A. (old)
and the same is marked as Exhibit- “2” Collectively.
19. P.W.3 is Paradip Kumar Benia, plaintiff (Executor) of the Will. He has
produced death certificate of the testatrix which proves the death of the
testatrix on 9th June, 2000 and the death certificate is marked as
Exhibit – “C”. In his evidence, the P.W.3 has stated that his two sisters,
namely, Tilottoma Gupta and Sushma Gupta are residing in the ground
floor of the property and the two brothers, namely, pradip Kumar Benia
and Sunil Kumar Benia are residing in the First Floor of the said
building. He stated that the relationship of two sisters and their mother
was good. P.W.3 has stated that the relationship between the mother
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and Sovarani Gupta, the defendant herein was not very good. P.W.3
also stated that his sister Sovarani Gupta used to visit to see her
mother rarely and she used to tell such things to the mother that hurt
the feelings of mother.
20. P.W.3 has stated that physical condition of his mother in the months of
April, May and June was good. He has stated that his mother had blood
sugar, blood pressure and some breathing problem. He also stated that
P.W.3 and his brother Sunil Kumar Benia used to look after their
mother since their mother used to reside with them. Two daughters
who reside in the ground floor also used to look after their mother. He
stated that before four or five days of the death of his mother, her
mother called him and handed over the Will to him. He has also
produced Agreement entered between contractor and his mother in the
said agreement also her mother had put her thumb impression and the
said agreement is marked as Exhibit- “E”.
21. D.W.1 is Smt. Sova Gupta who is one of the daughters of testatrix and
defendant in the instant case. In her evidence, she has given
description of the property in question. She has stated that prior to the
death of her mother, her left side body became paralyzed and her
mother was not in a position to talk, only she can utter few words. She
has stated that in one day morning, she went to bathroom and she fell
down and due to which she became paralyzed. It is the further evidence
of D.W.1 that the testatrix could not able to move legs and hands. She
used to look after her mother and she used to feed her mother. Her
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main contention is that her mother has not executed any Will and the
Will relied by the plaintiff is forged document. She has also stated that
she has filed a suit against her brothers and sisters for partition of the
property left behind by her mother.
22. D.W.2 is the son of D.W.1 and the grandson of the testatrix. Exhibit “A”
(Will) was shown to D.W.2 and after going through the said Will, he has
referred the back page of the Will wherein file cover of the an Advocate
and Notary Public, namely, Raghunath Chaterjee is enclosed in which
two phone numbers have been mentioned and the witness stated that
the BSNL No. 9432134378 is launched in the year 2006. He stated that
his mother’s Advocate has applied information from BSNL under RTI
and the BSNL authorities have issued reply to the information stating
that series of mobile no. 9432134378 was launched in the year 2006
and the RTI reply is marked as Exhibit- “4”. In his evidence, the
Vakalatnama filed by an Advocate Shri Dilip Kumar Roy on behalf of
Pardip Kumar Benia and Sunil Kumar Benia in the suit filed by his
mother before the Learned 1st Additional District Judge, Howrah in
Misc Appeal No. 92 of 2017 is marked as Exhibit- “5”. In his evidence,
he has also identified the reply issued by the Learned Advocate, D.K.
Roy to the advocate of the D.W.1 and the same is marked as Exhibit-
“6”. He has also produced one certificate issued by Dr. Rahul Chaterjee
dated 5th August, 2015 stating that the testatrix was under his care for
treatment about one year from 1999 to 2000. The certificate is marked
as Exhibit – “7”.
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23. Mr. Meghnad Dutta, Learned Advocate representing the plaintiff
submits that in order to prove the Will, the plaintiff has examined one
of the attesting witnesses, namely, Anand Kumar Lal being P.W.1 and
during his examination, he has proved the will executed by the testatrix
on 30th May, 2000. He submits that P.W.1 has categorically stated that
the executrix has executed her last Will and Testament in his presence
and in presence of another attesting witness and one Advocate, namely,
M. Dasgupta. He submits that P.W.1 has stated that the testatrix has
put her thumb impression in all pages of the Will and he has identified
her thumb impression by writing “L.T.I. of Mantu Debi Benia identified
by me”. He submits that the Will and signature of P.W.1 and signature
of another attesting witness, signature of an advocate and the thumb
impression of the testatrix are marked without any objection from the
defendant.
24. Mr. Dutta submits that with regard to the physical fitness and mental
alertness of the testatrix, the P.W.1 has stated that at the time of
execution of the Will, the testatrix was in fit state of mind. He submits
that from the evidence of P.W.2 and P.W.3, it is proved that the
testatrix was performing her all ordinary works.
25. Mr. Dutta submits that the attesting witness has identified the thumb
impression of the testatrix and to corroborate the thumb impression, a
certified copy of the agreement entered between testatrix and developer
on 8th January, 1985, was produced being Exhibit-“D” which proves
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that testatrix was illiterate and used to put her thumb impression in all
documents whenever it required.
26. Mr. Dutta submits that the defendant has stated that the Will is not a
genuine document and the thumb impression is not of the testatrix but
the defendant has not adduced any contrary evidence to say that the
thumb impression is not of the testatrix. He submits that the document
relied by the defendant being Exhibit – “2” does not speak about that
the testatrix was suffering from paralysis or was in unsound mind. He
submits that the document records that the cause of death was due to
acute pulmonary edema in case of rheumatic heart disease with CVA
(old) which means that at the time of death, the testatrix had
respiratory problem and heart disease only. He submits that the
defendant has produced the document but has not adduced the
evidence of the doctor to prove the said document.
27. Mr. Dutta submits that the defendant has not adduced any evidence to
prove that the allegation of suspicious circumstances. He submits that
the defendant failed to prove that the Will is not genuine and was
executed under any suspicious circumstances.
28. Mr. Dutta submits that during evidence of D.W.2, the D.W.2 has
produced one document alleged to have received through Right to
Information Act from the BSNL authorities with regard to the phone
number of the Notary Public Advocate but the defendant has not taken
such plea in her caveat or in her affidavit-in-support of caveat. He
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submits that in the absence of pleadings, any evidence produced by the
parties cannot be considered. In support of his submissions, he has
relied upon the judgment in the case of Ram Sarup Gupta (Dead) by
LRs. vs. Bishun Narain Inter College and Ors. reported in (1987) 2
SCC 555. He also relied upon the judgment in the case of Srinivas
Raghavendrarao Desai (Dead) by LRs. vs. V. Kumar Vamanrao@
Alok & Ors. passed in Civil Appel No (s). 7293-7294 of 2010 dated
4th March, 2024.
29. Mr. Dutta submits that to prove the Will, the plaintiff has examined one
of the attesting witnesses of the Will and the attesting witness has
proved the will and there is no reasons to disbelieve the evidence of the
attesting witness. In support of his submission, has relied upon the
judgment in the case of Shivakumar & Ors. vs. Sharanabasappa &
Ors. reported in (2021) 11 SCC 277.
30. Mr. Dutta submits that the defendant in her affidavit-in-support of
caveat in paragraph 10 has stated that the testatrix is not at all owner
of the property but no issue with regard to the same is framed during
evidence, the defendant has not denied with regrd to ownership of the
property. He submits that the probate cannot determine the title of the
property. The probate Court are to see that the Will executed by the
testatrix was actually executed by her in a sound disposing of mind
without coercion or undue influence and the same was duly attested. In
support of his submissions, he has relied upon the judgments in the
case of Ishwardeo Narain Singh vs. Kamta Devi and Ors. reported
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in (1953) 1 SCC 295 and Kanwarjit Singh Dhillon Vs. Hardyal
Singh Dhillon reported in (2007) 11 SCC 357.
31. Mr. Anirudhha Mitra, Lerned Senior Advocate representing the
defendant submits that the deceased died on 9th June, 2000 and the
alleged Will is dated 30th May, 2000 i.e. just 9 days before her death,
thus this create suspicion about the execution of the alleged Will. He
submits that the testatrix was an illiterate lady but the Will is in
English language and as per the case of the plaintiff, the Will was read
over and explained to her by the Advocate in Hindi Language but the
plaintiff failed to examine the Learned Advocate to prove that he has
read over and explained the Will to the testatrix. He further submits
that the plaintiff has not adduced any evidence to prove the thumb
impression of the deceased.
32. Mr. Mitra, submits that one of the attesting witnesses of the Will, the
brothers-in-law of the executor Pradip Kumar Benia and another
attesting witness is brother-in-law of the Sunil Kumar Benia who is one
of the beneficiary of the Will. He submits that there is no independent
attesting witness in the Will which also create suspicion of execution of
the Will by the testatrix. He submits that as per the evidence of P.W.1
the Will was executed at 12:00 Noon but at that time neither the sons
nor their family members were present in the house, is not believable
story made out by the plaintiff and his witness.
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33. Mr. Mitra submits that P.W.1 stated that he had no knowledge in
whose custody the Will was kept after execution of the same. The Will
bears seal and stamp of Notary Public with date of 30th May, 2000 but
P.W.1 stated that he has no knowledge about the notarization of the
Will, thus the notary of the Will is not proved. He submits that on the
reverse page of the Notarial Certificate of the Will, name, address and
mobile phone number of the Notary Public have been provided in which
one mobile number is 9432134378 but as per the report of the BSNL
authorities, series 94321 was launched only in the year 2006, thus it is
proved that the Notarial Certificate in the Will is false and fabricated.
34. Mr. Mitra submits that the defendant has issued notice to the plaintiff
for partition of the property left behind by her mother and on receipt of
the notice, the plaintiff has sent a reply being Exhibit- “6” through his
Advocate stating that the plaintiff has no intention to deprive the
defendant from the property left behind by their mother but in the
reply, the plaintiff has not informed the defendant that the mother has
left behind any Will. He submits that in the partition suit filed by the
defendant, the plaintiff has filed written statement but in the written
statement the plaintiff has not disclosed about the alleged Will.
35. Mr. Mitra submits that the plaintiff has filed an application for grant of
probate on 11th February, 2015 that is after the period of 15 years from
the date of death of the testatrix though the plaintiff had the knowledge
of the Will. As per the case of the plaintiff, the testatrix has handed over
the Will to the plaintiff before 4 or 5 days of her death. He submits that
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the plaintiff has not provided any explanation why the plaintiff has filed
an application for grant of probate after the period of 15 years.
36. Mr. Mitra submits that since filing of caveat by the defendant, the
defendant has categorically stated that the testatrix was not in a fit
state of mind and had no capacity to understand the implication of the
Will. He submits that the plaintiff has not examined any doctor to prove
that the testatrix was in a fit state of mind at the time of execution of
the alleged Will. He submits that on the contrary, the defendant has
produced documents obtained under the Right to Information Act from
the Howrah Municipal Corporation being Exhibit-“2” wherein it is
mentioned that the cause of death was “Accute Palmona Edema” in a
case of Rheumatic Heart Disease with C.V.A. (old). He submits that the
defendant during evidence of D.W.2 produced a certificate issued by Dr.
Rahul Chaterjee being Exhibit-“7” wherein it is certified by the doctor
that she was under his care since 1999 to 2000 for multiple problems
including left hemiparesis, which is partial paralysis on the left side of
the body and was also suffering from “Motor Apraxia”. He submits that
the plaintiff in his evidence admitted that Dr. Rahul Chaterjee used to
treat the testatrix.
37. Mr. Mitra in support of his submissions, relied upon the following
judgments:
i. H. Venkatachala Iyengar vs. B.N.
Thimmajamma and Others reported in AIR
1959 SC 443.
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ii. Bharpur Singh and Others Vs. Shamsher
Singh reported in (2009) 3 SCC 687.
iii. Mahesh Kumar (Dead) By Lrs. Vs. Vinod
Kumar & Ors. reported in (2012) 4 SCC
387.
iv. Meena Pradhan and Others Vs. Kamla
Pradhan and Another reported in (2023) 9
SCC 734.
38. 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.”
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39. P.W.1, Anand Kumar Lal is the one of the attesting witnesses of the Will
and in his evidence, has stated that the testatrix Mantu Debi Benia has
executed her Last Will and Testament in her house on 30th May, 2000
at 12:00 noon and at the time of execution of the Will Mantu Debi
Benia, Testatrix; P.W.1, namely, Anand Kumar Lal; Asis Kumar Gupta
and M. Dasgupta, Advocate were present. In his evidence, he has stated
that before the testatrix put her signature in the Will, the Advocate
translated the entire contents of the Will in Hindi and explained to the
testatrix. He has also stated that he along with Asis Kumar Gupta and
Advocate, M. Dasgupta has seen Mantu Debi Benia putting her thumb
impression on the Will. He has also stated in his examination that the
testatrix was mentaly and physically fit at the time of execution of Will.
He has identified the Will and marked as Exhibit- “A” and thumb
impressions of the testatrix are marked as Exhibits – “A/1”, “A/3”,
“A/4” and “A/6”. P.W.1 has also made endorsement in the Will below
the thumb impression of the testatrix “LTI of Mantu Debi Benia
identified by me” and his signature were marked as Exhibit – “A/2”,
“A/5”, “A/7” and “A/8”. The P.W.1 has also identified signatures of
another attesting witness, namely, Asis Kumar Gupta and his signature
is marked as Exhibit “A/9”. P.W.1 also identified the signature of the
Advocate, M. Dasgupta in the Will who has made endorsement as
“Read over and explained in Hindi to the testatrix and Identified by me”
and the signature of Advocate is marked as Exhibit- “A/10”.
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40. P.W.1 admitted in the cross-examination that he is the brother-in-law
of the plaintiff and another attesting witness is the brother-in-law of the
Sunil Kumar Benia who is also the beneficiary of the Will. In the cross
examination also the P.W.1 has stated that the testatrix was not ill and
she was mentally and physically fine. From the trend of cross-
examination of P.W.1, it is found that the defendant made out a case
that both the attesting witnesses are the interested witnesses. In cross-
examination, the defendant has put the question about the relationship
between the attesting witnesses, executor and beneficiary but neither in
the affidavit in support of caveat nor in the cross-examination, the
defendant has put any suggestion to P.W.1 that he being the relative of
the executor has made false statement before the Court and no Will
was executed by the Testatrix in his presence.
41. The defendant has relied upon two documents with regard to the
physical and mental condition of the testatrix i.e. Exhibit- “2” and
Exhibit – “7”. Exhibit – “2” is the information received under the Right
to Information Act wherein it is recorded that the cause of death of the
testatrix was “Acute Palmona Edema” in a case of Rheumatic Heart
disease with C.V.A (old)”. Acute Palmona Edema in the case of
Rheumatic Heart Disease (RHD) with C.V.A (Cerebrovascular Accident)
indicates a sudden build-up of fluid in the lungs due to heart failure,
often caused by valve problems like mitral stenosis, which is common
in Rheumatic Heart Disease. Exhibit- “2” does not reflect whether the
testatrix was suffering from paralysis or she was not capable to execute
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Will. Exhibit – “7” is Certificate issued by Dr. Rahul Chatterjee wherein
he has certified that the testatrix was under his care for Mitral Stenosis
with Regurgitation due to Rheumatic Heart Disease and he has
attended the testatrix about one year in 1999 to 2000.
42. The Testatrix died on 9th June, 2000 and the doctor has issued
certificate on 5th August, 2015 i.e. after the period of 15 years from the
death of the testatrix. The defendant has not brought the doctor as
witness to prove the certificate. It is not proved that how the said
certificate is issued by the doctor. The defendant has not filed any
document in support of the certificate issued by the doctor. Mere
exhibited document, it cannot be said that the document is proved. The
Testatrix might be under treatment with the said doctor but this Court
only on the basis of the certificate issued after 15 years from the death
of the testatrix and without any corroborative documents and evidence
cannot hold that the physical and mental condition of the testatrix was
not good. In contrary, the P.W.1 who is the attesting witness in his
examination-in-chief as well as in the cross-examination has stated
that the physical and mental condition of the testatrix was good.
In the case of Shivakumar & Ors. (supra), the Hon’ble Supreme
Court held that :
“12.1. Ordinarily, a will has to be proved like
any other document; the test to be applied being
the usual test of the satisfaction of the prudent
mind. Alike the principles governing the proof of
other documents, in the case of will too, the proof
22with mathematical accuracy is not to be insisted
upon.
12.2. Since as per Section 63 of the
Succession Act, a will is required to be attested, it
cannot be used as evidence until at least one
attesting witness has been called for the purpose of
proving its execution, if there be an attesting
witness alive and capable of giving evidence.
12.3. The unique feature of a will is that it
speaks from the death of the testator and,
therefore, the maker thereof is not available for
deposing about the circumstances in which the
same was executed. This introduces an element of
solemnity in the decision of the question as to
whether the document propounded is the last will
of the testator. The initial onus, naturally, lies on
the propounder but the same can be taken to have
been primarily discharged on proof of the essential
facts which go into the making of a will.
12.5. If a person challenging the will alleges
fabrication or alleges fraud, undue influence,
coercion et cetera in regard to the execution of the
will, such pleas have to be proved by him, but even
in the absence of such pleas, the very
circumstances surrounding the execution of the will
may give rise to the doubt or as to whether the will
had indeed been executed by the testator and/or
as to whether the testator was acting of his own
free will. In such eventuality, it is again a part of
the initial onus of the propounder to remove all
reasonable doubts in the matter.
12.6. A circumstance is “suspicious” when it
is not normal or is “not normally expected in a
normal situation or is not expected of a normal
person”. As put by this Court, the suspicious
features must be “real, germane and valid” and not
merely the “fantasy of the doubting mind”.
12.7. As to whether any particular feature or
a set of features qualify as “suspicious” would
depend on the facts and circumstances of each
case. A shaky or doubtful signature; a feeble or
uncertain mind of the testator; an unfair disposition
of property; an unjust exclusion of the legal heirs
23
and particularly the dependants; an active or
leading part in making of the will by the beneficiary
thereunder et cetera are some of the circumstances
which may give rise to suspicion. The
circumstances abovenoted are only illustrative and
by no means exhaustive because there could be
any circumstance or set of circumstances which
may give rise to legitimate suspicion about the
execution of the will. On the other hand, any of the
circumstances qualifying as being suspicious could
be legitimately explained by the propounder.
However, such suspicion or suspicions cannot be
removed by mere proof of sound and disposing
state of mind of the testator and his signature
coupled with the proof of attestation.
12.8. The test of satisfaction of the judicial
conscience comes into operation when a document
propounded as the will of the testator is
surrounded by suspicious circumstance(s). While
applying such test, the court would address itself
to the solemn questions as to whether the testator
had signed the will while being aware of its
contents and after understanding the nature and
effect of the dispositions in the will?
12.9. In the ultimate analysis, where the
execution of a will is shrouded in suspicion, it is a
matter essentially of the judicial conscience of the
court and the party which sets up the will has to
offer cogent and convincing explanation of the
suspicious circumstances surrounding the will.
43. In the case of Bharpur Singh (supra), the Hon’ble Supreme Court held
that:
“14. The legal principles in regard to proof of a
will are no longer res integra. 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
whereof the propounder of a will must prove its
execution by examining one or more attesting
witnesses. Where, however, the validity of the will
is challenged on the ground of fraud, coercion or
undue influence, the burden of proof would be on
24the caveator. In a case where the will is
surrounded by suspicious circumstances, it would
not be treated as the last testamentary disposition
of the testator.
17. This Court in Niranjan Umeshchandra
Joshi v. Mrudula Jyoti Rao [(2006) 13 SCC 433 :
(2006) 14 Scale 186] held: (SCC pp. 447-48, paras
33-34)“33. The burden of proof that the will has
been validly executed and is a genuine
document is on the propounder. The
propounder is also required to prove that the
testator has signed the will and that he had
put his signature out of his own free will
having a sound disposition of mind and
understood the nature and effect thereof. If
sufficient evidence in this behalf is brought on
record, the onus of the propounder may be
held to have been discharged. But, the onus
would be on the applicant to remove the
suspicion by leading sufficient and cogent
evidence if there exists any. In the case of
proof of will, a signature of a testator alone
would not prove the execution thereof, if his
mind may appear to be very feeble and
debilitated. However, if a defence of fraud,
coercion or undue influence is raised, the
burden would be on the caveator.
(See Madhukar D. Shende v. Tarabai Aba
Shedage [(2002) 2 SCC 85]
and Sridevi v. Jayaraja Shetty [(2005) 2 SCC
784] .) Subject to above, proof of a will does
not ordinarily differ from that of proving any
other document.
34. There are several circumstances
which would have been held to be described
(sic) by this Court as suspicious
circumstances:
(i) when a doubt is created in regard to
the condition of mind of the testator despite
his signature on the will;
(ii) when the disposition appears to be
unnatural or wholly unfair in the light of the
relevant circumstances;
25
(iii) where propounder himself takes
prominent part in the execution of will which
confers on him substantial benefit.
(See H. Venkatachala Iyengar v. B.N.
Thimmajamma [AIR 1959 SC 443] and T.K.
Ghosh’s Academy v. T.C. Palit [(1974) 2 SCC
354 : AIR 1974 SC 1495] .)”
23. Suspicious circumstances like the
following may be found to be surrounded in the
execution of the will:
(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.”
44. Affidavit-in-support of caveat, the defendant has nowhere alleged that
the Will was manufactured after the death of the testatrix. In the
affidavit, the defendant has stated that:
“9.e) The deponent herein apprehends and
have reasons to believe that the so called Will said
to be the last Will of the said deceased was
procured and obtained by the son of the said
deceased living along with said deceased and the
same was alleged to be executed by fraudulent
26deceptive and dishonest and accordingly the so
called Will cannot or under any circumstances be
said to have been executed voluntarily by the said
deceased. It is also denied that the deceased knew
or approved all the contents of the said documents.
12. As regards the Left Thumb impression as
was put in all the pages of the said Will is not
authentic and correct. On the said Will the Left
Thum impression as has been put by the Testatrix
who did not understand the true meaning and
scope of the said writing in the Will and it appears
to have been read out translated and explained in
Hindi by an Advocate to here but it does not appear
therein that she the Testatrix understood the true
meaning of it and did not admit the said
translation, as such it is without any ray of
imagination that the said Will was executed by the
said Testatrix in presence of the two witnesses as
appeared therein. Further it is evident that the Left
Thumb impression of the Testatrix was not her.”
45. In the present case though the defendant has taken the stand that the
Will is not genuine and surrounded by suspicious circumstances but
taking into consideration of the evidence of P.W.1 who is one of the
attesting witness of the Will and the documents i.e. Exhibit – “2” and
Exhibit- “7” relied by the defendant, this Court finds that from the
examination and cross-examination of P.W.1, the plaintiff has proved
with regard to the execution of the Will on 30th May, 2000 in his
presence and in presence of another attesting witness and the
Advocate. The defendant tried to prove that the testatrix was not in
sound mind and physically fit but the said document does not prove
that the testatrix was not in sound mind and physically fit. The
defendant relied upon the information received through RTI and on
perusing the said document, this Court finds that only the cause of
death is explained and not with regard to the condition of the testatrix
27
on the date of execution of the Will. The certificate issued by the doctor
only reveals that she is under his treatment but the said certificate
does not proved that that testatrix was not mentally and physically fit
at the time of execution of Will.
46. D.W.2 during his examination has brought the copy of plaint, written
statement, reply to the notice issued by the advocate of the plaintiff to
the Advocate of the defendant in connection with T.S. No. 25 of 2010
with respect to the suit property. It is the contention of the defendant
that after the death of testatrix on 9th June, 2000, the defendant has
issued notice to the plaintiff for partition of the property left behind by
the testatrix and in reply, the plaintiff has informed the defendant that
the plaintiff has no intention to deprive the defendant from her claim.
The defendant tried to make out a case during cross-examination and
during argument that the plaintiff had the knowledge about the Will
since before the death of the testatrix but has filed an application for
grant of probate after the period of 15 years from the date of death of
the testatrix. The defendant has filed caveat and affidavit in support of
caveat but the defendant has not taken any stand with regard to delay
in filing of the probate case. The defendant has not raised any issue of
limitation in the affidavit in support of caveat and thus the plaintiff
could not get an opportunity to deal with the issue raised by the
defendant during argument.
47. The defendant tried to make out the case that the Advocate and Notary
Public who has provided his BSNL mobile number in the back sheet of
28
the Will the said series number was released by the BSNL in the year
2006. The defendant has not made out such case in the affidavit in
support of caveat. The defendant has also not adduced any evidence to
prove the same by examining the BSNL authorities. The defendant only
on the basis of the RTI information tried to make out the case which is
not the stand in the affidavit in support of caveat. The defendant has
also not put any question to that effect at the time of cross examination
of the plaintiff witnesses.
48. This Court also finds that the defence taken by the defendant during
the evidence of the defendants witness, other than the stand that the
Will is not genuine, testatrix was not fit state of mind and the Will is
alleged to have executed under the suspicious circumstances, the
defendant has not made out any case either in the affidavit in support
of caveat or has also not put any questions during the cross-
examination of the plaintiff witnesses.
49. This Court has to consider whether the document put forward as the
last Will and Testament of the testatrix was duly executed and attested
in accordance with law and whether at the time of such execution, the
testatrix had sound deposing mind. In the present case from the
evidence of P.W.1, it is clear that the testatrix has executed her last Will
and testament while possessing good health and fit state of mind in
presence of attesting witness.
29
50. In the case of Kanwarjit Singh Dhillon (supra), the Hon’ble Supreme
Court held that it is well settled law that the functions of a probate
Court are to see that the Will executed by the testator/testatrix was
actually executed by him in a sound deposing state of mind without
coercion or undue influence and the same was duly attested.
51. Considering the total facts and circumstances, evidence led by the
parties and the documents relied by the parties, this Court finds that
the plaintiff has proved the Last Will and Testament of the testatrix
Mantu Debi Benia and this Court did not find any suspicious
circumstances to deny for grant of probate of the Will.
52. Department is directed to issue probate of the last Will and Testament
dated 30th May, 2000 to the plaintiff on compliance of all formalities. At
the time of grant of probate, the copy of Will be made part of probate.
53. T.S. No. 20 of 2016 is disposed of. Decree be drawn accordingly.
(Krishna Rao, J.)