OD-2 IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION AN APPEAL FROM ITS TESTAMENTARY AND INTESTATE JURISDICTION ORIGINAL SIDE APD/3/2024 With TS/6/2009 IN THE GOODS OF:

AKHILESH KUMAR SINHA (DEC)

-AND-

SANT AGARWAL -VS-

RABI SINHA BEFORE:

The Hon'ble JUSTICE DEBANGSU BASAK -AND-

The Hon'ble JUSTICE MD. SHABBAR RASHIDI For the Appellant : Mr. Harpal Singh, Adv.

Mr. Shaunak Ghosh, Adv.

Mr. Sanjay Kumar Shaw, Adv.

For the Respondent : Mr. Debdut Mukherjee, Adv.

Mr. Kinjal Kumar Baral, Adv.

HEARD ON : 20.04.2026 DELIVERED ON : 20.04.2026 MD. SHABBAR RASHIDI, J.:-

1. The instant appeal is directed against the judgment and order passed on May 18, 2023 in TS/6/2009.

2. By the impugned judgment and order, the learned Trial Judge has dismissed an application for grant of probate filed on behalf of the plaintiffs therein. In the impugned judgment and order, learned Single Judge held that:

"In the case in hand, there are several circumstances which create suspicious circumstances surrounding the execution of the Will of the testator as stated above. Pleas of coercion and fraud must be proved by the caveator. But if any doubt is created regarding execution of the will then it is for the propounder of the will to clear such doubts. Before grant of probate, the conscience of the Court must be made clear, and the court must be satisfied that no suspicious circumstance existed at the time of execution of the will. It is rather a case which alleges that the testator did not intend to give effect to the writings contained in the will since his signatures were obtained in blank papers. It is also the case that the propounder of the will was present and took active role in preparation of the will and derived substantial benefit therefrom. In view of the observations of the Supreme Court of India, discussed above, burden of proof is on the propounder of the will to stir clear the clouds of suspicions surrounding execution of the will. The propounder of the Will failed to remove to suspicious circumstances surrounding the execution of the Will. Therefore, it is not a right case that the probate should be granted."

3. It is submitted by learned Senior Advocate appearing for the appellant that the learned Single Judge was not justified in holding that the impugned Will, probate against which was sought, to be clad in mystery. Learned Senior Advocate for the appellant also submitted that the learned Trial Court failed to take into account of provisions contained under Section 63 of the Indian Succession Act, 1925.

4. It was also contended that the learned Single Judge erred in holding that there was contradiction between the testimony of P.W.-1 and P.W.-2 so far as it relates to typing of the Will. Learned Senior Advocate also contended that the learned Single Judge erroneously held the purport of the impugned Will which contained a back sheet naming the advocate who presumably assisted the testator in executing the Will.

5. It was further contended that the learned Single Judge erred in holding that the testator did not intent to give effect to the writings contained in the Will in question.

6. Learned Senior Advocate for the appellant also submitted that the learned Single Judge erred in holding that there were contradictions in the statement of the attesting witnesses with respect to the place of execution of the Will in question. Learned Senior Advocate further submitted that the learned Single Judge erred in holding that the Will in question was executed bequeathing all the properties of the testator in favour of outsiders. It is contended that a portion of the self same property was transferred through another Will in favour of the family members of the testator.

7. It has also been submitted on behalf of the appellant that the learned Single Judge did not take into consideration that although the propounder and beneficiary of the Will were mentioned as tenant in the subject matter of the Will but no such document was produced before the learned Trial C