Safiya Malik

The Calcutta High Court has allowed an intra-court appeal, overturning a previous decision that dismissed a probate suit concerning two conflicting Wills allegedly executed by Late Saroj Kumar Chatterjee. The division bench comprising Justice Sabyasachi Bhattacharyya and Justice Uday Kumar ruled in favor of the appellant, granting probate for the Will dated August 31, 1988, while setting aside the judgment of the Single Judge that had relied on expert evidence to disbelieve its authenticity.

The matter pertains to a dispute over two Wills, both purportedly executed by Late Saroj Kumar Chatterjee on consecutive days, August 30 and August 31, 1988. The respondents claimed that the first Will, dated August 30, 1988, was duly probated in 1997, bequeathing the estate to one Sabitri. Subsequently, Sabitri executed a Will in favour of Gopal Mitra, whose heirs are the present respondents. The appellant, however, asserted that the last Will, dated August 31, 1988, bequeathed the estate to the appellant’s wife and Bharat Sevashram Sangha, appointing the appellant as executor.

Following the grant of probate for the August 30, 1988 Will, the appellant sought revocation of the same, contending that the subsequent Will should take precedence as it represented the testator's last intention. The learned Single Judge, however, dismissed the probate application, relying on expert opinions regarding alleged signature discrepancies.

The appellant filed an intra-court appeal challenging this decision, asserting that the execution of the August 31, 1988 Will had been duly proved through direct evidence from attesting witnesses. During the proceedings, it was contended that Sabitri, through whom Gopal Mitra derived his claim, had originally lodged a caveat against the probate application of the August 31, 1988 Will but did not submit an affidavit in support, thereby rendering her caveat invalid under the relevant procedural rules. The respondents maintained that since Sabitri had acted upon the first Will and later executed a Will in favor of Gopal Mitra, her claim and that of her successors remained valid.

The case also involved arguments regarding the alleged fraudulent nature of the second Will, reliance on expert testimony, and the impact of suspicious circumstances surrounding the execution of the disputed document.

The division bench examined the evidence presented and placed particular importance on the direct testimony of attesting witnesses, which holds greater evidentiary value under the Indian Succession Act compared to expert analysis. The court observed: "The evidence of experts is not conclusive and cannot be relied upon when due execution has been proved by direct evidence."

The court noted that one of the attesting witnesses, Purnendu Sarkar, provided sworn testimony affirming that he had witnessed the execution of the August 31, 1988 Will in accordance with Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. His testimony remained consistent under cross-examination and was found to be reliable.

Addressing the alleged suspicious circumstances raised by the respondents, the court held that the execution of a second Will within a day of the first did not, in itself, constitute a suspicious circumstance sufficient to invalidate the later Will. The respondents had argued that the handwritten date on the Will, the absence of a draft record, and differences in document formatting were indicators of potential forgery. The court, however, ruled that these elements were not substantial enough to undermine the validity of the Will.

Regarding the reliance on expert handwriting analysis, the court noted that the experts had no verified signatures for comparison. The earlier Will’s authenticity could not be conclusively established solely on the basis of its prior probate, as no citation had been issued to the appellant at that stage. Additionally, the learned Single Judge's independent comparison of signatures was questioned, as it lacked an admitted reference point.

The court further noted that expert opinions, while relevant, cannot outweigh direct evidence from attesting witnesses unless substantial suspicious circumstances exist. It reiterated that attesting witnesses' testimonies hold greater evidentiary value, particularly when their statements remain unshaken under scrutiny.

The court also addressed the issue of caveatable interest. The appellant had argued that Gopal Mitra had no legitimate interest in challenging the Will, as he was not a direct heir and had derived his claim through an allegedly invalid chain of bequests. The respondents contended that Gopal Mitra’s interest stemmed from the probated first Will and was therefore valid. The court examined precedent rulings and concluded that an executor or beneficiary of a prior Will could contest a subsequent Will without independently filing for probate of the earlier document. Consequently, Gopal Mitra’s heirs were deemed to have a legitimate caveatable interest.

Upon examining the facts and legal precedents, the court ruled in favor of the appellant and issued the following directives:

• The judgment and deemed decree dated August 21, 2021, passed by the learned Single Judge in Testamentary Suit No. 14 of 2006, is set aside.

• Probate is granted to the executor-appellant for the Will dated August 31, 1988.

• Necessary ministerial steps are to be taken for execution of the present decree.

Case Title: In The Goods of Saroj Kumar Chatterjee and Kamalesh Bhattacharyya 

                  vs. Smt. Ratna Mitra and Others

Case Number: A.P.D. No. 7 of 2021 (Arising out of T.S. No. 14 of 2006)

Bench: Justice Sabyasachi Bhattacharyya and Justice Uday Kumar

[Read/Download order]