Calcutta High Court Grants Probate for Will Executed 9 Days Before Death: “No Suspicious Circumstances Found, Testatrix Was Mentally and Physically Fit” | Delay in Filing Does Not Invalidate Genuineness of Will, Says Court

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Court’s Decision

The Calcutta High Court in TS No. 20 of 2016, granted probate of the Last Will and Testament dated 30 May 2000 of the deceased Mantu Debi Benia, to the plaintiff, her eldest son and named executor. Justice Krishna Rao held that the Will was duly executed, validly attested, and made in a sound and disposing state of mind, observing that “this Court did not find any suspicious circumstances to deny the grant of probate of the Will.”

Facts

The suit arose out of a probate application filed by the plaintiff for the Will of his mother, executed on 30 May 2000, just 9 days before her death on 9 June 2000. The testatrix had appointed the plaintiff as the sole executor. One of her daughters filed a caveat alleging that the Will was forged, executed under suspicious circumstances, and that the testatrix was neither the owner of the property nor in a sound mental state. The dispute was converted into Testamentary Suit No. 20 of 2016. During its pendency, one son passed away, and his legal heirs gave their consent for probate.

Issues

Whether the Will dated 30 May 2000 was the last Will of the testatrix?
Whether the Will was duly executed by the testatrix in a sound and disposing state of mind?
Whether the Will was surrounded by suspicious circumstances or executed by fraud or coercion?
Whether the executor is entitled to grant of probate?

Petitioner’s Arguments

The plaintiff argued that:

The Will was executed in the presence of two attesting witnesses and an advocate who read and explained the Will in Hindi to the illiterate testatrix.
The testatrix’s thumb impressions were affixed across the Will, identified by an attesting witness who endorsed her LTI with his signature.
Witness testimony confirmed she was mentally and physically sound.
The Will was consistent with prior agreements (Exh. E) where the testatrix used thumb impressions, corroborating her execution style.
The delay in filing for probate (15 years after death) did not impact the validity of the Will, and no issue of limitation had been raised in the caveat.

Respondent’s Arguments

The caveatrix contended that:

The Will was executed just 9 days before death and under suspicious circumstances.
The testatrix was paralyzed and mentally unfit at the time of execution.
The attesting witnesses were closely related to the beneficiaries, and the Will was notarised with a mobile number series (94321) introduced only in 2006, casting doubt on its authenticity.
The Will was not mentioned in a reply to a partition notice, and the plaintiff failed to explain the delay of 15 years in filing for probate.
Medical records (Exh. 7) and RTI documents (Exh. 2) were cited to suggest incapacity, but no doctor was examined.

Analysis of the Law

The Court applied Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, reiterating that for proving a Will:

One attesting witness must testify to execution;
The testator must sign or affix their mark in the presence of two attesting witnesses;
Execution must be voluntary and in a sound mind.

The Court also relied on principles laid down in Shivakumar v. Sharanabasappa (2021) and Bharpur Singh v. Shamsher Singh (2009)—which clarify the need to dispel any “suspicious circumstances” when alleged.

Precedent Analysis

Shivakumar & Ors. v. Sharanabasappa & Ors. (2021) 11 SCC 277 – Cited for requirements of execution and dispelling of suspicious circumstances.
Bharpur Singh v. Shamsher Singh (2009) 3 SCC 687 – Relied upon for clarifying that burden of proving fraud lies on the objector.
Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon (2007) 11 SCC 357 – Cited on the limited scope of the probate court in deciding title.
Ishwardeo Narain Singh v. Kamta Devi (1953) 1 SCC 295 – Referenced for the basic requirements of proving a Will.
Ram Sarup Gupta v. Bishun Narain Inter College (1987) 2 SCC 555 – Cited to establish that absence of pleadings bars evidence.
Meena Pradhan v. Kamla Pradhan (2023) 9 SCC 734, Mahesh Kumar v. Vinod Kumar (2012) 4 SCC 387 – Cited for importance of removing all doubts surrounding execution.

Court’s Reasoning

The Court noted that P.W.1, an attesting witness, clearly identified the thumb impressions and confirmed execution in the presence of both attesting witnesses and an advocate.
The Will was read in Hindi to the testatrix by the advocate, whose signature and endorsement appeared in the Will.
While attesting witnesses were relatives, no evidence of coercion or undue influence was established.
The certificate from Dr. Rahul Chatterjee (Exh. 7) was issued 15 years post-death and uncorroborated; thus, it could not establish mental incapacity.
The BSNL number controversy regarding notarisation was not raised in the caveat and lacked evidentiary proof.
Delay in filing probate was not pleaded and could not be used against the plaintiff.

Conclusion

The Court held that the Will was validly executed and free from suspicious circumstances. It ordered the issuance of probate upon compliance with procedural formalities and directed that a copy of the Will be made part of the probate.

Implications

This ruling reaffirms that attestation by credible witnesses, even if related, is legally sufficient to establish a Will unless clear suspicious circumstances are proven. Mere delay in seeking probate or familial disputes do not negate testamentary validity. It underscores the burden on the objector to prove incapacity or fraud, and the requirement for strict compliance with Section 63 of the Succession Act remains central.

Cases Referred

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