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. 133 of 2019 Mita Rani Basak @ Mita Rani Basack and others Vs.

Prabhat Kumar Basak For the appellants : Mrs. Sabita Mukherjee Roy Choudhury, Mr. Sanket Das, Ms. Sukriti Sengupta For the respondent : Mr. Probal Mukherjee, Ld. Sr. Adv., Mr. Suhrid Sur Heard on : 03.04.2025 Hearing concluded on : 10.04.2025 Judgment on : 22.04.2025 Sabyasachi Bhattacharyya, J.:-

1. The present first appeal has been preferred against the grant of probate in respect of the last Will and Testament of Late Harendra Chandra Bysack.

2. Learned counsel for the appellant argues that the Will was executed on January 20, 1988 and the testator died on September 7, 1996. However, the probate application was filed only in the year 2015, that is, 19 years after the demise of the testator. It is argued that, as such, the probate application is barred by limitation. Moreover, the substantial delay in filing the same gives rise to grave suspicious circumstances. The propounder, it is alleged, failed to dispel such suspicion and, as such, the learned Testamentary Court ought to have dismissed the probate suit.

3. Learned counsel next argues that there are several discrepancies surrounding the alleged execution of the Will. No evidence was led by the propounder as to who drafted and typed the Will, the place where the Will was executed, whether the contents of the Will were read over and explained to the testator and as to how the propounder came to possess the Will.

4. It is submitted that in the address of the first attesting witness Moloy Das, initially the term “Kol‟‟ (that is, the short form of “Kolkata”) was written. It is apparent from the Will that the same was subsequently interpolated, apparently by scratching off the said word and substituting it with the expression “Cal” (abbreviation of “Calcutta”). It is argued that in the year 1988, when the Will was executed, the City of Kolkata was still named as Calcutta and the renaming came much later. Thus, such interpolation is ample proof of the Will being manufactured subsequently, after the nomenclature of the city was changed, at a period much subsequent to the alleged date of execution of the Will.

5. The signature of the testator on the Will, it is argued, does not tally with the admitted signature of the testator on the gift deed dated January 17, 1990, marked as Exhibit-G in the suit. The flourish in the alleged signature of the testator in the Will is absent in his signature on the gift deed, which was executed only two years after the Will. Such drastic change in signature does not happen in the normal course of business, it is contended.

6. It is further pointed out that there is large space between the typewritten matter in the Will and the signature of the testator. Section 63(b) of the Indian Succession Act, 1925 mandates that the signature of the testator shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. Such provision is contravened in the present case due to the huge gap between the content of the Will and the signature.

7. Further, the signature of the attesting witness Moloy Das appears above the testator‟s signature in the Will, which is also unexplained by the propounder.

8. Again, the Will was executed on January 20, 1988 whereas one of the beneficiaries thereof, namely Uma Kanto, a son of the testator, died in the month of May, 1988. The testator met his demise more than eight years thereafter on September 7, 1996. However, the testator did not alter his Will to incorporate the names of the heirs of Uma Kanto or to take into account the fact of demise of Uma Kanto and/or delete the name of the said beneficiary from the Will, which itself gives rise to suspicious circumstances as well.

9. The appellant contends that Section 105 of the Indian Succession Act provides that in the e