In the High Court at Calcutta

Civil Appellate Jurisdiction

Appellate Side

The Hon’ble Justice Sabyasachi Bhattacharyya

And

The Hon’ble Justice Uday Kumar

F.A. No.55 of 2023

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CAN 2 of 2024

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CAN 3 of 2025

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CAN 4 of 2025

Smt. Sarojini Mondal and others

Vs.

Sukumar Naskar and others

For the appellants : Mr. Sourav Sen, Sr. Adv.,

Mr. Partha Chakraborty,

Mr. Muhammad Obaid,

Ms. Debdatta Manna

For the respondent nos.1 & 2 : Mr. Ayan Banerjee,

Mr. Abhishek Verma,

Mr. Atulya Sinha Verma, Ms. Brihanwita Debnath,

Ms. Aparna Sarkar, Mr. Swaraj Naskar

For the respondent no. 3 : Mr. Kushal Chatterjee,

Mr. Debrup Choudhury

Heard on : 26.06.2025, 10.07.2025

& 04.08.2025

Reserved on : 04.08.2025 Judgment on : 21.08.2025

Sabyasachi Bhattacharyya, J.:-

1. The objectors in a probate proceeding under Section 276 of the Indian Succession Act have preferred the present appeal against the grant of probate in respect of the last Will and testament dated January 7, 2004 of one Badal Chandra Naskar. By the said Will, the testator bequeathed his properties to the plaintiff/respondent no. 1 - Sukumar Naskar and proforma respondent no. 3 – Arabinda Naskar, his two sons, without granting anything to his five daughters, being the present appellants and the proforma respondent nos. 2 and 4. Learned senior counsel for the appellant assails the Will on the ground that the same was not read over and explained to the testator, who put his Left Thumb Impression (LTI) on the Will. There is no evidence on record to indicate that it was ever read over and explained, despite the testator having affixed his LTI, which itself vitiates the execution of the Will.

2. It is further argued that despite being literate, the testator put his LTI on the Will, which itself is a suspicious circumstance shrouding the execution of the Will.

3. Learned senior counsel argues that the due execution of the Will was never proved in terms of Section 63 of the Indian Succession Act, read with Section 68 of the Indian Evidence Act. There was patent contradiction between the depositions of the plaintiffs’ witnesses. It is argued that PW 2, one of the grandsons of the testator (son of one of the beneficiaries), an attesting witness, did not state in his evidence whether the other attesting witness signed in presence of the testator. Thus, the ingredients of Section 63(c) of the Succession Act have not been proved.

4. Learned senior counsel next contends that the testator, being the father of the contesting parties, was forcibly taken away from Namita Naskar, his youngest daughter, with whom he was residing, by the two sons/beneficiaries of the testator on July 4, 2004, whereas the Will was allegedly executed on June 7, 2004. Learned senior counsel also submits that an application under Order XLI Rule 27 of the Code of Civil Procedure, bearing CAN 3 of 2025, has been filed in the present appeal to bring on record the police complaint by the daughters of the testator in that regard dated January 28, 2004 and also a Will executed by the mother of the parties previously and the judgment dismissing the probate application in connection with the same. The mother of the parties, by the said Will, had granted her property purportedly to her grandsons as well.

5. Learned senior counsel for the appellants further submits that the testator admittedly executed and had registered two Wills on the self- same date, that is, on June 7, 2004, one of which being the present disputed one, being registered at Barasat, and the other at Salt Lake. The evidence of PW 1 indicates that the disputed Will was presented for such registration at the Registration Office at Barasat from 11:00 AM to

4:00 PM and, thus, the Salt Lake Will must have been the second and last Will of the testator. However, no probate was obtained in respect of the Will registered at Salt Lake where the grandsons, that is the sons of the testator’s sons, were bequeathed his property. There is no explanation forthcoming as to how and why two Wills were registered, bequeathing