A Will must be executed with clear evidence of the testator's intention and compliance with legal formalities; discrepancies in witness testimonies can invalidate the Will.

JUDGMENT :

SUPRATIM BHATTACHARYA, J.

1. Hearing of the instant appeal was concluded on 10th day of August 2023 even without the records of the Court below. In spite of efforts of the registry, the records of the trial proceeding could not be obtained for 3 months since then. Finding no other alternative the judgment is being delivered on the basis of some documents that the parties have supplied.

2. The instant appeal arises out of the Judgment and Decree passed by the Ld. Additional District Judge, 4th Court Paschim Medinipur in Other Suit No. 25 of 2008, dated the 29th day of January 2009, wherein the said Ld. Judge has been pleased to dismiss the suit on contest, praying for grant of probate, with cost of Rs. 10,000/-. The said Ld. Judge has been pleased to reach to the conclusion that the ‘Will’ executed by Harisadhan Manna dated 09.07.2003 is forged, fabricated and procreated document.

3. The appellant herein namely Gopal Chandra Manna was the applicant for grant of probate in respect of the said ‘Will’ being the executor of the said ‘Will’.

4. Smt. Arati Chowdhury, Archana Hazra and Sumitra Majhi, being the sisters of the applicant raised objection and opposed the prayer for grant of probate in respect of the said ‘Will’ who are the respondents in the instant appeal.

5. Through the said application praying for probate it has been stated that the impugned Will was executed by the testator namely Harisadhan Manna, who was the father of the contending parties, in presence of the witnesses after being prepared as per his instruction.

6. The fact of the instant lis is that the appellant/plaintiff namely Gopal Manna prayed for grant of probate in respect of a ‘Will’ said to have been executed on 09.07.2003 by his father the testator namely Harisadhan Manna, after being prepared as per his direction and in his presence.

The three sisters of the petitioner contested the said suit as a result being contentious the judicial miscellaneous case has been renumbered as other suit.

The said suit has been disallowed by coming to the conclusion that the ‘Will’ in question is false and fabricated one. As such probate has not been granted in respect of the said ‘Will’ against which the appellant petitioner has preferred the instant appeal.

7. The Ld. Counsel appearing on behalf of the appellant/petitioner during his exhaustive submission has stated as follows:

(i) The ‘Will’ in question was prepared as per the direction of the testator and after the said ‘Will’ being prepared it was read over to the testator who had executed the same in presence of the attesting witnesses.

(ii) The Ld. Counsel has further submitted that the testator had signed on the sad ‘Will’ after the same had been prepared and read over to him.

(iii) He has further submitted that the signature of the testator in the said ‘Will’ took place in presence of the attesting witnesses and the attesting witnesses had signed on the said ‘Will’ on being fully satisfied that the ‘Will’ in question has been prepared as per the direction of the testator and has been executed by the testator himself.

(iv) The Ld. Counsel has also submitted that the ‘Will’ in question does not have any suspicious circumstance so that the same cannot be taken into consideration.

(v) The Ld. Counsel has further submitted that after the preparation of the said ‘Will’ it was read over to the testator and thereafter the ‘Will’ was executed by the testator.

(vi) He has further submitted that one of the attesting witnesses has deposed and has proved the impugned execution of the said ‘Will’.

(vii) He has further submitted that all the procedures having been adopted and the procedure laid down under Section 68 of the Evidence Act and Section 63 of the Succession Act being complied and there being no suspicious circumstance the Trial Court has misdirected itself by not granting probate in respect of the said ‘Will’. In support of his contention the Ld. Counsel has cited the following judgment being (2020) 16 SCC 209.

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