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2025 Supreme(Cal) 47
IN THE HIGH COURT AT CALCUTTA
SABYASACHI BHATTACHARYYA, SUBHENDU SAMANTA, JJ.
Sri Jagadindra Ganguly - Appellants
Versus
Irena Dutta and another - Respondent
F.A.T. No.393 of 2014
Decided on : 09-01-2025
For the appellant : Mr. Debashis Roy, Ms. Oisani Mukherjee, Mr. Monish Sen
The erroneous mention of a date in a Will does not invalidate its execution if the execution is otherwise duly proved, and advanced age does not imply lack of mental capacity.
Headnote:(A) Indian Evidence Act, 1872 - Section 68 - Indian Succession Act, 1925 - Section 63 - Grant of probate - The Will executed on January 16, 2003, was dismissed by the probate court due to erroneous date mention and alleged lack of mental capacity of the testatrix - The court found that the execution of the Will was duly proved by attesting witnesses, and the erroneous date did not invalidate the Will. (Paras 3, 15, 20, 26, 29)
(B) Legal standards for Will execution - The mere advanced age of the testatrix does not imply lack of mental capacity; the law requires only one attesting witness to prove execution, which was satisfied in this case. (Paras 26, 28)
Facts of the case:
The appeal was against the dismissal of the probate application for the Will of Late Renuka Dutta, who died on February 01, 2007. The Will was contested based on an erroneous date and the mental capacity of the testatrix.
Findings of Court:
The court found that the Will was validly executed and the probate court erred in dismissing the application based on irrelevant criteria.
Issues: The main issues were the validity of the Will based on the date mentioned and the mental capacity of the testatrix.
Ratio Decidendi: The court ruled that the erroneous date mention was a bona fide error and did not invalidate the Will; the testatrix's mental capacity was not in question due to her age.
Result: The appeal is allowed, and the probate of the Will is granted.
JUDGMENT :
Sabyasachi Bhattacharyya, J.
1. The present appeal has been preferred against a judgment and order (deemed decree) dismissing the application for grant of probate of the Will of one Late Renuka Dutta.
2. The Will-in-question was executed on January 16, 2003 and the testatrix died on February 01, 2007.
3. Learned counsel for the appellant submits that the Will having been proved duly in accordance with Section 68 of the Indian Evidence Act, 1872 as well as Section 63 of the Indian Succession Act, 1925, the learned Trial Judge erred in law and in fact in dismissing the probate application.
4. Learned counsel submits that the mere erroneous mention of dateat the bottom of the last page of the Will does not vitiate the execution of the Will, since one of the attesting witnesses adduced evidence to prove the execution of the same.
5. The overwriting of date by the scribe/executor, it is submitted, is also not fatal in respect of the valid execution of the Will.
6. Learned counsel contends that the Bengali Year 1409, in which the Will was executed, corresponds to the English Year 2003, contrary to the finding of the learned Trial Judge that the said Bengali Year corresponds to the year 2002 of the English calendar.
7. It is next argued that the testatrix having signed at the bottom of the last page of the Will does not in any manner vitiate the Will or its execution.
8. Although the P.W.1 (executor) might have failed to state in evidence specifically whether the Will was signed in his presence, the same was unnecessary, it is argued.
9. P.W.2, one of the attesting witnesses, having not corroborated the presence of P.W.1 at the time of the Will being signed is also immaterial, it is contended. Also, it is argued that the advanced years of the testatrix does not ipso facto render her mentally unsound.
10. The probate case was marked as contentious and was ultimately heard upon citation being issued initially on the son of the deceased testatrix, who was her only surviving heir. The said son having expired during pendency of the proceeding, his heirs and legal representatives were substituted and notice served on them. However, the said heirs did not contest the probate proceeding at any point of time.
11. Although learned counsel for the appellant contends that the said heirs wrote letters to the probate court expressing their consent to the grant of probate, there is nothing on record to substantiate such submission and, as such, we are not going into such aspect.
12. From the records, it is seen that P.W.2, one of the attesting witnesses, namely one Krishnendu Kar, duly proved the execution of the Will in terms of Section 63 of the Indian Succession Act. He clearly stated that the testatrix signed the Will in his presence and in presence of the other two attesting witnesses and that he and the other attesting witnesses signed the Will in presence of the testatrix.
13. It has also been stated in evidence by the P.W.1 that the Will was duly read over and explained to the testatrix.
14. In the Will itself, the executor/scribe, who is also the propounder of the Will, has stated that the Will was prepared as per instructions given by the testatrix and the contents of the same were explained to the testatrix.
15. The probate court observed that although the Will-in-question was notarised and allegedly executed on January 16, 2003 and in all other places the date mentioned was January 16, 2003, on the last page of the Will, the date of execution was mentioned as January 16, 2005. However, the erroneous mentioning of date in one of the stray places, on the last page of the Will, immediately above the signature of the testatrix, does not per se vitiate the execution of the Will. No effective purpose would be served for anyone by attributing the date wrongly to the year 2005, whereas the consistent case of the propounder as well as the witnesses is that the Will was executed on January 16, 2003 and not on January 16, 2005. The notarization took pl
