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IN THE HIGH COURT AT CALCUTTA
SABYASACHI BHATTACHARYYA, UDAY KUMAR
Mohan @ Kaju Shaw – Appellant
Versus
Om Prakash Shaw – Respondent
Judgment :
Sabyasachi Bhattacharyya, J.
1. The present first appeal has been preferred against the grant of probate of the Will of one Late Shanti Shaw. The appellant is the son of the testatrix whereas, by virtue of the Will, the testatrix bequeathed her properties to her daughter Smt. Sabitri Shaw (the respondent’s wife).
2. Learned counsel for the appellant contends that the inordinate delay in filing the probate application is itself to be construed as a suspicious circumstance vitiating the application. It is contended that the Will was purportedly executed on January 6, 1997, and the testatrix died on July 16, 1997. A previous probate application was filed on January 6, 1999 but the same was dismissed on April 17, 2002 due to non- production of the original Will. The present proceeding arises from the second probate application, filed on May 8, 2002. Since the present application was filed about five years after the death of the testatrix, the same is hit by Article 137 of the Schedule to the Limitation Act, 1963, which stipulates the time-limit for such applications to be three years from the date of cause of action.
3. Learned counsel cites a Division Bench judgment of this Cou
The right to apply for probate is continuous and not strictly bound by a time limit, provided the execution and attestation of the will are established following legal requirements.
The validity of a Will is upheld when properly executed, and the burden of proving undue influence or fraud lies with objectors, not the propounder.
Probate of a Will requires strict compliance with statutory formalities, including attestation by witnesses; failure to provide adequate proof leads to dismissal of the application.
The court found that the application for probate was barred by limitation, and the alleged Will was not duly executed, failing to meet statutory requirements.
The validity of a will requires proof of execution while the testator is of sound mind, and suspicious circumstances necessitate thorough scrutiny.
The propounder of a Will must satisfactorily prove its execution, whereupon the burden of proving any allegations of fraud or coercion shifts to the objectors. Minor gaps in testimony do not undermin....
A registered WILL that is over 30 years old carries a presumption of due execution, and requirements around attesting witnesses may not be fatal if the document is adequately proved otherwise.
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