Sanchayita Lahkar

The High Court of Calcutta Division Bench of Justice Sabyasachi Bhattacharyya and Justice Uday Kumar upheld the grant of probate in favour of the respondent in relation to the last Will and Testament of the deceased testator. The Court held that the delay of 19 years in filing the probate application did not constitute a legal bar and that the due execution and attestation of the Will had been adequately proved in accordance with the law. It directed the dismissal of the appeal and affirmed the order of the Trial Court, which had granted probate. The Court concluded that the Will was genuine and that no suspicious circumstances surrounding its execution had been established.

The matter before the Court arose from an appeal challenging the probate granted in respect of the last Will and Testament of the deceased, Late Harendra Chandra Bysack. The Will was executed on January 20, 1988, while the testator passed away on September 7, 1996. The probate application was filed only in 2015, nearly 19 years after the testator’s demise.

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The appellants, who are legal heirs of the testator, contested the grant of probate, raising objections on grounds of delay, alleged suspicious circumstances surrounding the execution of the Will, and questions about the testator’s intentions and mental state. The appellants contended that such a delay gave rise to grave suspicion regarding the authenticity of the Will and that no reasonable explanation had been provided for the same.

It was also contended that the Will contained discrepancies. These included the alleged interpolation of the address of an attesting witness, the claim that the testator’s signature on the Will differed significantly from that on a gift deed executed two years later, and the contention that a large space existed between the typewritten content of the Will and the testator’s signature, allegedly in violation of Section 63(b) of the Indian Succession Act, 1925.

Further, it was alleged that the attesting witness’s signature appeared above that of the testator and that one of the legatees named in the Will had died shortly after the Will was executed, with the testator not updating the Will to reflect this event. The appellants relied on Section 105 of the Indian Succession Act, which states that if a legatee does not survive the testator, the legacy shall lapse unless otherwise directed in the Will.

The propounder of the Will, the respondent in this case, argued that the Will had been duly executed and attested in compliance with Section 63 of the Indian Succession Act, and that no suspicious circumstances existed. It was submitted that Article 137 of the Limitation Act, 1963, which provides for a three-year limitation for applications not otherwise specified, did not strictly apply to probate proceedings. The delay, according to the respondent, was justified by the absence of any dispute until the year 2015, when the appellants filed a partition suit involving the same property. It was only at this point that the need to file for probate arose.

The respondent supported the Will’s validity by pointing to the corroborative act of the testator executing a gift deed in favour of his daughters in 1990, which aligned with the intentions expressed in the Will. It was contended that the minor differences in signature were natural, and that P.W.2, the attesting witness, was a credible and independent person who had testified to witnessing the Will’s execution.

In rebuttal, the appellants argued that several key factual and procedural irregularities had not been addressed by the Trial Court, including the failure to frame issues on suspicious circumstances and to consider discrepancies in the attesting witness’s testimony and signatures. They also cited judicial precedents to argue that the burden of dispelling suspicion lay with the propounder.

The Court noted the timeline surrounding the Will and the probate application, stating: “It is an admitted position that the Will was executed on January 20, 1988 and the testator died on September 7, 1996, whereas the probate application was filed on November 14, 2015.”

Referring to the evidence, the Court recorded: “The executor and the legatees of the Will continued to enjoy the property jointly in an uninterrupted manner… upon getting a notice of partition... the executor was prompted to file the probate application.”

Citing precedent, the Bench observed: “The right to apply would accrue when it becomes necessary to apply, which may not necessarily be within three years from the date of the death of the testator.” It added: “Suspicion if, any, due to the delay has been amply explained away by the propounder.”

On the due execution of the Will, the Court stated: “The Will has been duly proved by P.W.2, one of the attesting witnesses, in terms of Section 63 of the Indian Succession Act, read with Section 68 of the Indian Evidence Act.”

Addressing the appellant’s argument regarding discrepancies in the testator’s signature, the Bench noted: “Mere flourish under a signature does not vitiate the signature otherwise, particularly in the absence of any expert evidence being sought in that regard by the appellant.”

Regarding the interpolation allegation, it was recorded: “On a plain glance of the original Will, which forms a part of the record, we could not find any palpable interpolation beyond doubt.”

On the claim that an attesting witness’s signature appeared above the testator’s, the Court noted: “The placement of the respective signatures… does not create any manner of doubt whatsoever regarding the valid execution of the Will.”

Regarding the legatee’s death, it was held: “A post facto event cannot retrospectively vitiate the prior execution of the Will.”

On the question of suspicious circumstances, the Court concluded: “We do not find that the onus ever shifted to the executor to dispel such non-existent suspicious circumstances.”

The Court stated: “We are of the considered opinion that the learned Testamentary Court was justified in granting probate in respect of the last Will and Testament of Late Harendra Chandra Bysack and we do not find any reason or ground to interfere with the impugned judgment and deemed decree.”

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It directed: “Accordingly, F.A. No.133 of 2019 is dismissed on contest, thereby affirming the judgment and deemed decree dated June 22, 2019 passed by the learned Additional District Judge, First Court at Sealdah, District: South 24 Parganas in Original Suit No.01 of 2016, thereby granting probate in respect of the last Will and Testament of Late Harendra Chandra Bysack.”

The Bench further ordered: “There will be no order as to costs.”

Finally, the Court directed: “A formal decree be drawn up accordingly. Pending interim applications, if any, stand disposed of accordingly.”

Advocates Representing the Parties

For the Appellants: Mrs. Sabita Mukherjee Roy Choudhury, Advocate; Mr. Sanket Das, Advocate; Ms. Sukriti Sengupta, Advocate

For the Respondent: Mr. Probal Mukherjee, Senior Advocate; Mr. Suhrid Sur, Advocate

Case Title: Mita Rani Basak @ Mita Rani Basack and Others v. Prabhat Kumar Basak

Case Number: F.A. No. 133 of 2019

Bench: Justice Sabyasachi Bhattacharyya and Justice Uday Kumar

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