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CALCUTTA HIGH COURT
Arijit Banerjee, J.
In the Goods of: Saroj Kumar Chatterjee (Deceased)
T.S. 14 of 2006
Decided on 27.08.2021
(A) Indian Succession Act, 1925 – Section 63 – Indian Evidence Act, 1872 – Section 48 – Proof of Will – A Will has to be proved like any other document – Generally, a lenient test is applied to decide whether or not a person has locus standi to oppose grant of probate in respect of a Will – Burden of proving valid execution of a Will and that it is a genuine document is squarely on Propounder – He must establish that testator has signed Will within his free will and having a sound disposition of mind and understood nature and effect of instrument on which he was appending his signature – Testamentary capacity of Propounder must also be established – Propounder must explain to satisfaction of Court suspicious circumstances, if any, surrounding execution of Will. (Paras 27, 32 and 33)
(B) Indian Succession Act, 1925 – Section 63 – Sanctity of Will – Certain degree of solemnity attaches to a Will by reason of fact that it contains last wish of testator as to how his properties will devolve upon his departure from this world and also because by very nature of document, testator cannot be called as a witness to prove Will – Probate Court is a Court of conscience and unless its conscience is satisfied that a Will has been executed voluntarily by testator following requirements of law with full consciousness of mind and without undue influence and without being a victim of fraud, probate will not be granted – Such satisfaction will have to come from entire conspectus of a particular case as is revealed by pleadings and evidence on record. (Para 48)
(C) Indian Evidence Act, 1872 – Section 45 – Expert opinion – Under Section 45 of Indian Evidence Act, handwriting expert evidence is admissible in Court – Opinion of a handwriting expert, if proved by him in Court, becomes admissible as evidence – Nonetheless, it still remains an opinion of handwriting expert and is not binding on Court – Court is not bound to accept such opinion as sacrosanct and is not obliged to base its decision solely on such opinion – Court is entitled to come to its own conclusion on an issue like whether or not two signatures on two different documents are of same person – However, since a handwriting expert is especially trained and skilled in matter of ascertaining as to whether or not two signatures on two separate documents are of same person, Court would ordinarily give due weightage to his opinion. (Para 41)
Result: Testamentary Suit dismissed.
JUDGMENT
Arijit Banerjee, J.—This is a curious tale of two Wills. One is dated August 30, 1988 (hereinafter referred to as the ‘First Will’). The other is dated August 31, 1988 (hereinafter referred to as the ‘Second Will’). Both are said to be Wills executed by Saroj Kumar Chatterjee (in short ‘Saroj’) who died on September 03, 1988. The First Will was admitted to probate at the instance of one Sabitri Chatterjee (who was named as the sole executrix in the First Will), by this Court by an order dated December 11, 1997.
2. The executors of the Second Will filed the present probate application on November 05, 1990 which was earlier than the date of filing of the probate application in support of the First Will, i.e., June 19, 1991. Upon becoming aware that the First Will had been probated by this Court by order dated December 11, 1997, one of the executors of the Second Will (the other executor having died) applied on January 27, 1998, for revocation of probate that had been granted in respect of the First Will. By a judgment and order dated July 27, 1998 (reported at 1999 (2) CLJ 272) the Learned Single Judge dismissed the revocation application by observing inter alia, as follows:
“23. According to me, it is correct to say that even if the earlier order granting probate is not recalled but by virtue of granting second probate, if any, earlier grant of probate will automatically be annulled or revoked.
31. The case was rested thereon for the purpose of delivering the judgment. But subsequently Mr. Bhattacharya mentioned this matter with notice to the parties by intimating the Court that the Section 118 of the Indian Succession Act has no application in case of Hindus. Therefore, the subsequent Will may not be construed as prima facie bad Will. I have not called upon to decide as to whether the subsequent Will wherein grant of probate is still pending before this Court is genuine Will or not but I have called upon to dispose of the applications for the purpose of recalling and/or setting aside of as order passed on 11th December, 1997 wherein a probate was granted in respect of a Will.
32. Therefore, parties are at liberty to agitate the point as to applicability and/or scope and submit of Section 118 of the Indian Succession Act, at the time of disposal of the subsequent probate application being contentions cause i.e. a suit.
33. Since, I have already observed that the question of annulment and/or revocation of the earlier probate is dependable upon the result of the subsequent probate proceedings, there is no scope of recalling or setting aside the order passed by the Court granting probate on 11th December, 1997.”
3. Two nephews of Saroj vis. Tapan and Kamal who were caveators in respect of the First Will, had also filed applications for revocation of probate of the First Will. Such applications were also dismissed by the judgment and order dated July 27, 1998. Kamal had filed an appeal against the judgment and order dated July 27, 1998. The appeal was dismissed.
4. In the present proceedings the surviving executor of the Second Will prays for an order admitting the Second Will to probate.
5. Saroj had done well in life and was also the beneficiary of substantial inheritance. His wife predeceased him. He had no children. He died on September 03, 1998, possessed of valuable immovable and movable properties. As mentioned above, two documents of Saroj have seen the light of the day, one dated August 30, 1988 and the other dated August 31, 1988, both of which are claimed to be the last Will and testament of Saroj by the executors of the respective Wills. As it stands at present, the First Will has been probated by this Court, albeit in exercise of power under Order VIII Rule 5 of the Code of Civil Procedure. Applications for revocation of such probate have filed. An appeal filed by one of such applicants was dismissed. The matter rested there. In other words, the order dated December 11, 1997 admitting the First Will to pro
SupremeToday
(1) Certain degree of solemnity attaches to a Will by reason of fact that it contains last wish of testator as to how his properties will devolve upon his departure Probate Court is a Court of consci....
The propounder of a Will must prove valid execution by confirming compliance with legal requirements, and any allegations of forgery or mental incapacity must be substantiated by the contesting party....
The main legal point established in the judgment is the requirement for the propounder of a Will to prove its due and valid execution, remove suspicions surrounding its execution, and demonstrate the....
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.
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