Case Note & Summary
The suit was a challenge to a Will dated 21st March 1989 purportedly executed by late Tarapada Chatterjee, who died on 24th August 1990. The plaintiff, his daughter Shanta Chatterjee, sought probate claiming to be the sole beneficiary. The defendant, his son Avijit Chatterjee (since deceased, represented by legal heirs), contended that the Will was forged and that his father died intestate. The court framed issues on whether the Will was validly executed. The plaintiff examined one attesting witness, Sandeep Dave (PW-1), who in cross-examination gave inconsistent statements about the execution, including that the testator may not have been present and that the other attesting witness Dr. Kriplani was not present. The court found that the Will contained suspicious circumstances: the son was excluded without valid reason, the Will was not disclosed for years despite litigation, and the attesting witness's testimony was unreliable. The court held that the plaintiff failed to prove the Will's valid execution and dismissed the suit with costs.
Headnote
A) Succession Law - Will - Proof of Execution - Section 63 Indian Succession Act, 1925 and Section 68 Indian Evidence Act, 1872 - The propounder of a Will must prove its due execution and attestation, and where suspicious circumstances exist, must dispel them by clear and satisfactory evidence - In the present case, the attesting witness Sandeep Dave (PW-1) gave contradictory testimony regarding the presence of the testator and other attesting witness, and the Will contained unnatural bequests excluding the son - Held that the Will was not proved and probate was refused (Paras 1-81).
Issue of Consideration
Whether the Will dated 21st March 1989 of late Tarapada Chatterjee was validly executed and attested as per law?
Final Decision
The suit is dismissed with costs. The Will dated 21st March 1989 is not proved. Probate is refused.
Law Points
- Burden of proof in probate proceedings
- Suspicious circumstances surrounding execution of Will
- Section 63 of Indian Succession Act
- 1925
- Section 68 of Indian Evidence Act
- 1872
- Attestation requirements
- Propounder's duty to dispel suspicion
Case Details
2020 LawText (BOM) (02) 26
Testamentary Suit No. 67 of 1997 in Testamentary Petition No. 360 of 1995
Mr. H. S. S. Murthy i/b. Mr. Abhishek Patil for the Plaintiff, Mr. V. Y. Sanglikar a/w. Ms. Vaishali Ugle for the Defendant
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Nature of Litigation
Testamentary suit challenging the validity of a Will and seeking probate.
Remedy Sought
Plaintiff sought probate of the Will dated 21st March 1989 of late Tarapada Chatterjee.
Filing Reason
Plaintiff claimed to be sole beneficiary under the Will; defendant contested alleging forgery and intestacy.
Previous Decisions
Defendant had filed Suit No. 852 of 1995 for administration of estate and obtained ad-interim order appointing Court Receiver on 5th April 1995.
Issues
Whether the last Will and Testament of the deceased Tarapada Chatterjee was validly executed?
Submissions/Arguments
Plaintiff argued that the Will was duly executed and attested by Sandeep Dave and Dr. Nari N. Kriplani, and that she was the sole beneficiary.
Defendant contended that the Will was not authentic, did not bear the testator's signature, and that the plaintiff never disclosed the Will despite earlier litigation.
Ratio Decidendi
The propounder of a Will must prove its due execution and attestation under Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. Where suspicious circumstances exist, the propounder must dispel them by clear and satisfactory evidence. In this case, the attesting witness's testimony was contradictory and unreliable, and the Will contained unnatural dispositions excluding the son without explanation, leading to the conclusion that the Will was not validly executed.
Judgment Excerpts
The suit is the result of a challenge to a writing said to be the last Will and testament of late Mr. Tarapada Chatterjee, a widower.
The Caveat filed by the defendant is supported by affidavit dated 4th August, 1997 in which the defendant has contended that the Will dated 21st March, 1989 is not an authentic document.
Procedural History
The plaintiff filed Testamentary Petition No. 360 of 1995 seeking probate. The defendant filed a caveat on 4th August 1997. Issues were settled on 6th January 2011. The suit was reserved on 18th October 2019 and pronounced on 13th February 2020.
Acts & Sections
- Indian Succession Act, 1925: 63
- Indian Evidence Act, 1872: 68
