Mere Registration and Handwriting Expert Report on Attesting Witness's Signature Insufficient to Prove a Will: Calcutta High Court - 2025-01-02

Calcutta High Court Dismisses 21-Year-Old Claim, Cites Failure to Prove Will's Execution Amidst 'Suspicious Circumstances'

Kolkata: The Calcutta High Court, in a significant judgment on succession law, has dismissed a testamentary suit seeking Letters of Administration for a Will executed in 1986. Justice Krishna Rao ruled that the plaintiff failed to discharge the heavy burden of proving the Will's valid execution, highlighting that mere registration and expert verification of an attesting witness's signature are insufficient to overcome suspicious circumstances surrounding the document.

The court dismissed T.S. No. 30 of 2015, which arose from a 2014 application filed 21 years after the death of the testatrix, Smt. Kironbala Debi.

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Background of the Dispute

The case centered on the last Will and Testament of Smt. Kironbala Debi, dated July 18, 1986. The plaintiff, Indrajit Banerjee, a grandson of the deceased, sought Letters of Administration as a beneficiary. The Will bequeathed a substantial property in Tangra, Kolkata, to his father, Dipti Lal Banerjee, and subsequently to him.

The testatrix passed away in 1993. The appointed executor, her son Phani Lal Banerjee, died in 2003 without ever attempting to probate the Will. The plaintiff filed the suit only in 2014, after the death of both attesting witnesses and his own parents, who were also aware of the Will. Several other legal heirs of Smt. Kironbala Debi contested the Will's validity, converting the application into a full-fledged testamentary suit.

Arguments of the Parties

Plaintiff's Submissions: Senior Advocate Suman Dutt, representing the plaintiff, argued that the Will was duly executed and registered, which should lend it a presumption of validity under Section 114 of the Indian Evidence Act. Since both attesting witnesses were deceased, the plaintiff sought to prove the signature of one witness, Dr. Mihir Kumar Dutta, through a handwriting expert who compared it with his university pension records. Mr. Dutt contended that the defendants had not provided any evidence to support their allegations of fraud or coercion.

Defendants' Contentions: Representing the defendants, Senior Advocate Kallol Basu raised several red flags, terming the Will "shroud by suspicious circumstances." Key arguments included: - Inordinate Delay: The 21-year delay in propounding the Will was deliberate, waiting until all key persons (executor, attesting witnesses, primary beneficiary) had passed away, making it impossible to verify the testatrix's mental state and free will. - Suspicious Signatures: The testatrix's signatures on the Will were shaky and inconsistent with her usual signature, which did not include the "Banerjee" surname. - Failure of Executor to Act: The appointed executor's failure to probate the Will for over a decade before his death was unexplained and highly suspicious. - Incorrect Property Description: The Will wrongly described the testatrix as the sole owner of a property she co-owned with her step-son. - Failure to Examine Key Witness: The plaintiff failed to produce an "attending witness," Madhu Sudan Parida, who was named in the plaint and had even filed an initial affidavit, to testify about the Will's execution.

Court's Analysis and Ruling

Justice Krishna Rao meticulously analyzed the evidence and legal requirements for proving a Will under Section 63 of the Indian Succession Act, 1925, and Sections 68 and 69 of the Indian Evidence Act, 1872.

The court found the plaintiff's case wanting on several critical grounds:

“In the present case, neither the attesting witnesses nor the attending witnesses were examined to prove that the Will was executed by the testatrix while possessing good health and fit state of mind. Thus mere registration of the Will without examination of any attesting witness or the attending witness... presumption cannot be drawn.”

The court observed that proving the signature of a deceased attesting witness via an expert does not fulfill the legal mandate. The purpose of an attesting witness is to testify that the testator signed the Will in their presence, a fact that a handwriting expert cannot establish.

The failure to examine the named attending witness, Madhu Sudan Parida, or the advocate who allegedly drafted the Will, was deemed a fatal flaw in the plaintiff's case.

Suspicious Circumstances Weighed Heavily

The judgment heavily relied on the principles laid down by the Supreme Court in cases like H. Venkatachala Iyengar v. B.N. Thimmajamma and Bharpur Singh v. Shamsher Singh . The court identified several suspicious circumstances that the plaintiff failed to dispel: 1. Shaky and Doubtful Signatures: The court personally compared the signatures and found them shaky and inconsistent with the testatrix's undisputed signature on another document. 2. Will Not Seeing the Light of Day: The unexplained 21-year delay in bringing the Will to court was a major factor. The plaintiff's claim of finding the Will in 2014 was contradicted by his admission in cross-examination that his parents had the original Will before 2005. 3. Inaction of Executor and Beneficiary: The failure of both the executor and the plaintiff's father (a primary beneficiary) to act on the Will during their lifetimes cast serious doubt on its authenticity.

Final Decision

Concluding that the propounder failed to meet the burden of proof, the court stated:

“The burden of proof that the Will has been validly executed and a genuine document is on the propounder... this Court finds that the plaintiff has failed to prove that the testatrix has executed her last Will and Testament in presence of two attesting witnesses while possession good health and fit state of mind.”

The suit was dismissed, bringing an end to the protracted legal battle over the inheritance.