Bombay High Court
ASHIM CHATTERJEE AND ANR.versusSHANTA ASHOK TOLAT
- Decided
- Disposal
- DISMISSED
Holding
The Will of Tarapada Chatterjee was validly executed and probate was rightly granted.
Summary
The appeal challenges a single judge’s order granting probate of the 1989 will of the late Tarapada Chatterjee in favour of his daughter Shanta Ashok Tolat. The appellants, the son’s heirs, contended that the will was forged, the testator suffered from Parkinson’s disease, the signature was shaky, and the son was inexplicably omitted, raising suspicious circumstances. The respondents argued that the will was validly executed, attested by two witnesses, and that the burden of disproving the will lay on the caveator, who had not pleaded specific grounds. The court examined the testimony of the attesting witness, handwriting experts, and documentary evidence, concluding that the attesting witness’s evidence was reliable and the alleged suspicions were either unpleaded or insufficient. Consequently, the court held the will to be validly executed, found no material suspicious circumstance, and upheld the probate, dismissing the appeal.
Issues considered
- Whether the last Will and Testament of Tarapada Chatterjee was validly executed
- Whether the appellant’s alleged suspicious circumstances (shaky signature, disinheritance, undue influence) merit rejection of probate
- Whether the court can examine suspicious circumstances in the absence of a specific plea in the caveat affidavit
- Whether the burden of proving invalidity of the will lies on the propounder or the challenger
- Whether the probate order should be set aside
Legislation cited
- Indian Evidence Act, 1872 — s. 68
- Indian Succession Act, 1925 — s. 63
Subjects
- probate
- will validity
- suspicious circumstances
- testamentary capacity
- attesting witness
- handwriting expert
- disinheritance
- burden of proof
- Indian Evidence Act
- Indian Succession Act
Judgment
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.69 OF 2021
IN
TESTAMENTARY SUIT NO.67 OF 1997
IN
TESTAMENTARY PETITION NO.360 OF 1995
Ashim Chatterjee
and another …..Appellants
Versus
Shanta Ashok Tolat …..Respondent
…..
WITH
INTERIM APPLICATION NO.2251 OF 2020
IN
APPEAL NO.69 OF 2021
-----
Mr. S.U. Kamdar, Senior Advocate a/w. V.Y. Sanglikar, Archana Gaware, for the
Appellants.
Mr. Virendra J. Tulzapurkar, Senior Advocate a/w. Ms. Shreya Jha, Ms. Mansi Shah,
Ms. Bhavana Dubepatil, Mihir Boghani i/b. M/s. Pravin Mehta and Mithi & Co. for
the Respondent.
Mr. Baravkar, Court Receiver, High Court, is present.
-----
CORAM : SARANG V. KOTWAL &
RANJITSINHA RAJA BHONSALE, JJ.
RESERVED ON : 17th SEPTEMBER, 2026
PRONOUNCED ON : 07th OCTOBER, 2026
JUDGMENT : [PER SARANG V. KOTWAL, J.]
1. The Appellants have challenged the judgment and order
passed by a learned Single Judge of this Court on 13.2.2020 in
Testamentary Suit No.67/1997 in Testamentary Petition No.360/1995.
By the impugned order, the probate of the last will and testament of
Tarapada Chatterjee was granted.
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2. Heard Mr. S.U. Kamdar, learned Senior Counsel for the
Appellants and Mr. Virendra Tulzapurkar, learned Senior Counsel for the
Respondent.
3. The Appellants were the original Defendants. They are the
legal heirs of the original Defendant Avijit Chatterjee. Testamentary
Petition was filed by Ms. Shanta Chatterjee alias Shanta Ashok Tolat,
who is the Respondent in the present Appeal. For convenience, the
parties are referred to by their status in Testamentary Suit No.67/1997.
Hence, Ms.Shanta Chatterjee alias Shanta Ashok Tolat is referred to as
the Plaintiff, Ashim Chatterjee and Anouk Chatterjee are referred to as
the Defendants. The original Defendant Avijit Chatterjee was the real
brother of the Plaintiff. He passed away during the pendency of the Suit.
4. The Petition was affirmed on 30.6.1995 by the Plaintiff. It
was mentioned that Tarapada Chatterjee died at Bombay Hospital on
24.8.1990. At that time, he had a fixed place of residence at 32A,
Jaldarshan, Nepean Sea Road, Bombay – 400 036. He had left a writing
which was his last Will and Testament dated 21.3.1989. A copy of the
same was annexed at Exhibit-A to the Petition. It was executed on
21.3.1989. The Plaintiff was the sole executrix named in the Will.
Exhibit-B to the Petition mentioned all the properties and credits which
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the deceased had possessed or was entitled to at the time of his death
which are likely to come to his hands was bequeathed to the Plaintiff.
The Plaintiff was not aware of the necessity to apply for Probate and it
was prayed that the delay in filing the Probate be condoned. The
Petition further mentions the estimated value of the assets. It was
mentioned that Tarapada’s wife Ruby had predeceased him and he was
survived by the Plaintiff who was the daughter and the original
Defendant who was the son. This, in short, were the main averments in
the Petition.
5. The original Defendant Avijit Chatterjee filed a caveat. He
filed an affidavit in support of his caveat. Some important averments in
that affidavit are as follows :
The citation of the Petition for grant of Probate of the Will
was belatedly served on his Advocate on 23.7.1997 and that he was
filing the affidavit to oppose grant of Probate. It was further mentioned
that the Petitioner (the Plaintiff) was his sister and Shri Tarapada
Chatterjee was his father. He had half share in the estate left behind by
his father. His father had left behind himself and his sister as the only
heirs and legal representatives. Their mother had predeceased their
father. He had further stated that their father died intestate and never
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made any Will. The document which was tried to be passed off as a Will
did not bear his father’s signature. He was familiar with his father’s
signature. The Plaintiff had never mentioned existence of the Will of
their father. Even when he had filed a Suit being Suit No.852/1995 in
the High Court and had obtained an ad-interim order appointing Court
Receiver on 5.4.1995, after about two weeks of notice there was no
mention of any Will; though the Plaintiff was represented through an
Advocate. His father had died in August, 1990 and even after that till
June, 1995, the Plaintiff had never mentioned about existence of the
Will. On these grounds, he opposed grant of Probate. He further
mentioned that he reserved his right to file a detailed reply dealing with
the properties left behind by his father, at a later stage.
6. A Single Judge of this Court vide the order dated 6.1.2011
framed the following issues :
1] Whether the last Will and Testament of the deceased Tarapada Chatterjee
was validly executed; and
2] What relief, if any, the Plaintiff was entitled to ?.
7. The Plaintiff, in support of her case, examined four
witnesses. Those witnesses and the relevant extract from their
depositions are as follows :
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1) PW-1 was Sandeep Dave. He was one of the two attesting
witnesses on the Will. He filed an affidavit supporting the case of the
Plaintiff. He has stated that he was working as an Advocate / Articled
Clerk with M/s. Kanga & Company. On 21.3.1989, Shri Sandeep
Junnarkar, the then Partner with their Firm, requested him to visit the
residence of late Mr. Tarapada Chatterjee at Jaldarshan, Nepean Sea
Road, Mumbai to attest his Will. He visited the residence of the deceased
with the Plaintiff, who introduced him to one Dr. N.M. Kriplani. He
further mentioned in his affidavit that in presence of himself and
Dr.Kriplani, the deceased set and subscribed his name at the foot of his
Will. Thereafter, at the request of the deceased and in his presence and
in the presence of Dr. N.M. Kriplani, he (Sandeep Dave) set and
subscribed his name and signature at the foot of the Will. He even saw
Dr.N.M. Kriplani subscribing his name and signature at the same time.
After that he left the house of the deceased and returned to his office.
During the examination-in-chief on behalf of the Plaintiff, he
identified the signatures on the Will. He identified his own signature, the
signature of Dr.Kriplani and the signature of Mr. Tarapada Chatterjee.
He was cross-examined on behalf of the Defendant. He
deposed that his affidavit was drafted by Mr.N.R. Modi and it was
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signed by him. He had made suggestions or changes in the draft given to
him by Mr.N.R. Modi. He was working with M/s. Kanga & Company
between 1988 till 1992. He did not know whether the Plaintiff was a
client of their Firm. He did not know her personally. He had not met her
even casually. Mr. Junnarkar introduced him to the Plaintiff and
instructed him to accompany her to Jaldarshan. He did not know
whether Mr.Junnarkar had drafted the Will. Mr.Junnarkar introduced
the Plaintiff as his friend. He (Sandeep Dave) did not know Dr. Kriplani.
He had not met him before. He had not met Shri.Tarapada Chatterjee
prior to 21.3.1989. He was introduced to Shri Tarapada Chatterjee by
the Plaintiff. He was son of Smt. Nayana Dave who was an Advocate. He
did not clearly remember whether his mother had mentioned that she
was representing the Plaintiff in the Suit filed by the Defendant.
2) Hemant Vishnu Prabhu was the second witness for the
Plaintiff. He was the Manager of Jaldarshan Co-operative Housing
Society Limited from 2001 to 2006 and from 2009 till the date of
deposition i.e. till 17th December, 2011. The Plaintiff by her letter dated
16.12.2011 made an application to the society to produce the original
nomination form, which her father had filed with the society. In
response to the said letter, Shri Prabhu (witness No.2) produced the
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original nomination form which was registered in the records of the
society on 27.2.1989. His examination-in-chief was conducted on behalf
of the Plaintiff. The letter of the Plaintiff and the nomination form were
produced. The letter of the Plaintiff and the nomination dated 30.1.1989
made by Tarapada Chatterjee were produced on record and marked ‘X’
and ‘X-1’ respectively.
In the cross-examination, he stated that the Secretary of the
Society verbally authorized him to produce the documents. It was
practice of his society to produce the documents of the society in the
Court of law as Manager of the society. He had submitted a letter of
resignation to the society but it was not accepted till the time of his
deposition. He knew the Plaintiff. He further stated that the
representative of the Court Receiver had visited the flat on 16.7.2010
and had obtained his signature on the site report. His affidavit of
evidence was prepared by Mr. Nilesh Mody but he had read the
affidavit and after that he had signed it.
3) Jatindar Kumar Sethi was the third witness examined by the
Plaintiff. He was a resident of Jaldarshan building and was a member
of the Managing Committee from 1975 to 2009. He was a Treasurer and
then Chairman of the society. He was acquainted with the deceased, his
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wife and the Plaintiff. He was well acquainted with the family. Smt.
Ruby Chatterjee wife of Shri Tarapada Chatterjee had died in the year
1983. After her demise, Shri Tarapada Chatterjee and the Plaintiff were
the only persons residing in the said flat bearing No.32A. The Plaintiff
used to take good care of the deceased Tarapada. He had never seen the
Defendant Avijit Chatterjee until 1992 when the Plaintiff got married to
Shri Ashok Tolat on 1.5.1992. He and other members were not even
aware that the deceased Shri Tarapada Chatterjee had a son named
Avijit Chatterjee until he saw the Defendant Avijit Chatterjee for the
first time in 1992. In December, 1988 their society had issued a circular
to all the Members to re-file the nomination in the new form. On
30.1.1989, the deceased Tarapada contacted him and informed him of
his intention to file a fresh nomination form. He gave triplicate forms
dated 30.1.1989. They were signed by the deceased in his presence. He
was in a position to identify Tarapada’s signature. He had signed the
nomination form in presence of this witness. The nominations were
recorded in the minutes of the meeting held on 26.2.1989.
In the cross-examination, he has stated that there were 125
flats in the complex and there were 32 flats in Wing No.1 where he
stayed. He could not state who was staying in Flat No.32A at the time of
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his deposition. He specifically stated in answer to a question that in
1989-90 Shri Tarapada was in a fairly good condition that he could walk.
He was in a reasonable condition but he did not remember the exact
health condition. The hand of the deceased was slightly shaky in 1989-
90. He came to know later on that the deceased had Parkinson disease.
He identified the signature of the deceased at Exhibit-P and according to
him the signature was of a person in fairly good health.
4) The next witness examined by the Plaintiff was Dilip Pralhad
Ahiwale. He was examined as a handwriting expert. The affidavit
mentions that he had obtained training of forensic document
examination at CID, Crime, Maharashtra State, Pune. He had examined
more than three lakh documents and appeared as an expert witness in
more than one thousand cases on behalf of the Government of
Maharashtra in various Courts. In the year 2011, he was approached by
the Plaintiff through her Advocate with a request to examine certain
documents and give his opinion as handwriting expert on the signature
of her late father Tarapada Chatterjee purporting on the Will dated
21.3.1989 and to submit a report to that effect and to given evidence on
the basis of his report. The Plaintiff provided him with the documents
described in his report. He visited Jaldarshan Co-operative Housing
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Society and took inspection of the original documents in the society
records and took photographs of the standard signatures. Under the
letter dated 15.4.2013, the Plaintiff’s Solicitors sent him certified true
copy of the Will dated 21.3.1989 for his opinion regarding signature of
late Tarapada Chatterjee. Since the copy of the Will was a poor
photocopy, he requested the Solicitors to provide good quality photo-
copies or else request the Prothonotary & Senior Master of this Court to
permit him as an expert to take photographs of signature from the
original Will before the concerned authority. After following the process,
on 26.2.2014, he along with an Advocate from the Solicitor Firm of M/s
Rustamji & Ginwala attended the Testamentary Department and took
digital photographs of the questioned signature of late Tarapada
Chatterjee. He examined the signatures in question and made a report
on 25.5.2014. The report also mentioned the manner in which he carried
the preliminary examination and final examination of the questioned
signature and comparison with standard signature. The report is
produced on record at Exhibit-P. The report was in favour of the Plaintiff
showing that the signature on the Will matched with the signatures
examined by him on the documents given to him. The standard
documents in the nature of signature of return of Wealth Taxes, income
tax documents, nomination form and Member’s signature of Automobile
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Association of Mumbai the documents at N-1 to N-6 which matched
with the ‘Q-1’ that was the questioned document on the signature of the
Will.
He was cross-examined on behalf of the Defendants on
various aspects including his credentials as an expert witness.
8. The evidence on behalf of the Defendant :-
The Caveator – Defendant Avijit Chatterjee examined
himself as the first witness. He mentioned in his affidavit submitted in
lieu of examination-in-chief that the Probate Petition was filed on
30.6.1995 as a counter to his suit for administration of their father’s
estate. He had filed Suit No.852/1995 in February, 1995 and had moved
for urgent ad-interim relief for appointing Court Receiver, injunction etc..
The Plaintiff at that time did not mention any Will of their father when
she opposed his application for ad-interim reliefs. He stated that his
father died intestate and never made a Will. The document relied on by
the Plaintiff was not their father’s Will nor does it bear their father’s
signature. The document was set up only to counter his suit, that too
after 5.4.1995 when the Court appointed the Court Receiver for the said
flat. It was ex facie a bogus document. The Plaintiff was the sole
beneficiary under that document. His name was not even mentioned as
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if the Plaintiff was the only child. The Plaintiff was spreading canards
about his strained relationship with their father deliberately to fabricate
the alleged Will. He had been staying away from Mumbai because of his
job. He stayed at different places like Kolkata, Chennai and Hyderabad.
His relationship with his father was extremely cordial. Their father and
the Plaintiff had stayed with him in Hyderabad and Chennai. Their
father died in August, 1990 in Mumbai when the Plaintiff was abroad.
He cremated his father and performed the obsequial rites at Chennai.
He had performed the tenth day rites of his mother in Mumbai. In
January, 1992 he had spoken to the Plaintiff about the division of the
estate of their father. In that conversation, the Plaintiff did not mention
any Will. She did not mention any Will till she filed and served the
Probate Petition in 1996-97. In May, 1992 the Plaintiff got married. He
performed ‘Kanyadaan’. His father was ailing from 1988 onwards. He
was suffering from the said disease from a long time. He had difficulty
in signing. His father had told him several times that the Plaintiff used
to put his signature. The signature on the Will is not of their father but
that of the Plaintiff. He produced the letters written by the Plaintiff. His
father had spent more time with his family than with the Plaintiff in
Mumbai. The Plaintiff had emotionally blackmailed their father. The
Defendant then made reference to the Plaintiff’s close friendship with
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one Sushil Chander. He died on 17.2.1991. He was residing in their flat
periodically. He then referred to the affidavit dated 16.6.2005 made by
Shri Sushil Chander’s wife Smt. Leela Chander claiming that the
Plaintiff had coerced Shri Sushil Chander to sign a Will. In January
1989, their father had frantically called him in Chennai and told him
that he wanted to stay with them in Chennai as he was scared of the
Plaintiff. He produced the letters dated 11.11.1983, 4.9.1983, 2.4.1993,
14.1.1999 and 2.9.1982 written by the Plaintiff to him and also a letter
dated 1.9.1983 written by his father to him. He further stated that his
wife Aruna was a witness to this situation of their father. Aruna died on
29.7.2011. She had made some notes regarding those instances in
writing. He produced those notes. According to him, their father had
told him that he wanted to divide his estate in three parts – one to the
Plaintiff, one to the Defendant and one to the grand-children. The Will
produced by the Plaintiff is not their father’s Will.
DW-1 Avijit Chatterjee was cross-examined on behalf of the
Plaintiff. In the cross-examination, he stated that between 1965-69, he
was a student at a college in Delhi. In 1970 he started working from
Thane. After that, he was transferred to Chennai around 1974 till 1979
and then from 1979 he was transferred to Gomia in Bihar till 1984.
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From there he was transferred to Hyderabad till 1987. After that till
1990 he was in Chennai. He got married in 1970 in Mumbai.
Interestingly, he stated that his sister (Plaintiff) and their parents were
aware that his marriage was impending. He further deposed that they
were not present at the ceremony but were present in spirit. He
explained that they were not physically present at the marriage
ceremony. He could not comment whether they were aware of the date
or place of his marriage. According to him, his father had discussed
purchase of the flat from a builder called M/s. Advani or his agent. He
deposed that he got information of his mother’s death several days after
she passed away as the Plaintiff could not pass on the communication,
because the communications 35 years ago were poor. According to him,
his father was seriously not well for about 3 to 4 years prior to his death.
When his father died, he was in Madras.
9. The defendant’s son Ashim Chatterjee was examined as
defense witness No.2. He stated in his affidavit in lieu of examination-
in-chief that he was close to his grandfather Tarapada Chatterjee. His
grandfather had stayed with them in Hyderabad in 1985 and in Chennai
in 1988. He stayed for around one and half months to two months each
time on those occasions. Thereafter his health started failing. He
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remembered that his grandfather’s hands used to shake and he walked
slowly. In Madras, in 1988, his tremors were quite severe and he had
problems even holding a cup and saucer. He also identified his mother’s
handwriting on her notes. He had seen his grandfather making signature
in Madras Club in 1988. It was a shaky signature. His grandfather used
to make phone calls to his father even after 1988 and the calls used to
last for about an hour. He was in Madras when his grandfather passed
away in 1990. The Plaintiff was abroad at the time when his
grandfather passed away. His father performed the cremation in
Mumbai and the tenth day rituals were performed by his father in
Madras.
In the cross-examination, he stated that he was not aware of
the status of his grandfather’s membership in any club. He did not
recollect who informed his father about his grandfather’s death. The
Plaintiff did not attend the final rituals.
10. The next witness examined on behalf of the Defendant was
Hiral Mehta. In her affidavit of evidence, she has deposed that she was
requested by the Defendant to examine the signature on a purported
Will dated 21.3.1989. She was permitted to examine the document in
this Court on 23.5.2017. She took photographs. She was given some
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documents produced by the Plaintiff for comparison. She examined
those documents and gave opinion vide her letter dated 26.5.2017. The
report was produced by her. According to the report, the document
purported to be the Will dated 21.3.1989 was not written by the writer
of the comparative signatures marked C-1 to C-12 which were
purported to be that of Tarapada Chatterjee.
She was cross-examined on behalf of the Plaintiff. According
to her, she had deposed in 80 to 100 cases as an expert witness before
different Courts i.e. Sessions Court, Metropolitan Courts, Courts at
Kalyan, Nashik, Surat Etc..
11. DW-4 was Vijaysudha Talwar. She was the sister of Aruna
Chatterjee. Aruna was the wife of the original Defendant. She had
passed away on 29.7.2011. In her affidavit of evidence, she deposed
that she was very close to Aruna who used to confide in her regarding
the family. According to her, Shri Tarapada Chatterjee was fond of the
Defendant’s family and had visited them in Hyderabad and Madras. He
enjoyed being with his grand-children Ashim and Anouk. Aruna had
told this witness that her father-in-law was extremely stressed and under
great mental tension regarding the Plaintiff. Aruna had made notes in
her own handwriting. She identified her handwriting on those notes.
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She then deposed about Aruna telling her regarding Susheel Chander.
She was also cross-examined by the Plaintiff’s Advocate. In
her cross-examination she deposed that whenever the Plaintiff was
required to go abroad, her father was staying with the Defendant
wherever he was posted.
OBSERVATIONS OF THE LEARNED SINGLE JUDGE :
12. After considering the material on record and after hearing
the learned counsel for the parties, the learned Single Judge passed the
impugned judgment and order. In his discussion, the learned Judge
observed that it could not be disputed that the Plaintiff was the only
person who was available at hand for assisting the testator, as the
Plaintiff was his daughter. She was unmarried for a large part of the time
and a bequest by a father to his only daughter who had lived with him
for all these long years cannot be termed as suspicious in the face of a
few allegations. There was little or no evidence that the son lived with
his parents or vice versa. There was no evidence to suggest that he
looked after his parents for a substantial long time. It was not in dispute
that the parents did not attend his marriage and were reportedly
unaware of his marriage. There was no evidence that the parents visited
him though he stayed in close proximity to his parents house. He did not
ask them to stay with him in Thane.
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13. The learned Judge discussed the evidence of PW-1 Sandeep
Dave and observed that merely because his mother was an Advocate
representing the Plaintiff, it cannot lead to the conclusion that he was
an interested witness.
14. In the affidavit in support of the caveat and in the affidavit of
evidence of the Defendant, there were no allegations of forgery of the
Will at all. According to the learned Judge, the allegations of
surreptitious transfer of the flat and properties would indicate exercise of
undue influence and then the burden shifted on the Defendant. The
correspondence initiated by the Defendant did not contain any
allegations of fraud or forgery or exercise of undue influence. The
learned Judge held that as far as the legal requirements were concerned,
the execution of the Will was proved and there was no reason to doubt
the veracity of the deposition by Sandeep Dave. The learned Judge
observed that the Defendant ought to have cross-examined PW-1
Sandeep Dave on mental faculties of the testator when the other
attesting witness Dr. Kriplani was not being examined. That omission to
cross-examine on that aspect was fatal to the Defendant’s case. The
Defendant had not proved that the Will was not validly executed. The
learned Judge observed that the Defendant did not summon Dr. Kriplani
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at the appropriate time, if Dr. Kriplani was so aware of the state of health
of the deceased.
15. The learned Judge observed that the Defendant’s wife Aruna
had passed away on 29.7.2011 and that there was no explanation as to
why she had not deposed in the matter and had not given evidence as to
her notes. From 1997, the Defendant was well aware of the impending
of the trial and it was expected that the Defendant’s wife could have
deposed rather than the Defendant’s son subsequently attempting to
prove her writings. The learned Judge rejected the contention of the
Defendant that the testator was seriously ill, was consulting
neurophysicians and hence was not of sound and disposing mind and
was therefore incapable of executing a Will. The letters at Exhibit D1/3,
D1/6, D1/7, D1/8, D1/9 and D1/11 indicated that it was the Plaintiff
who was keeping the Defendant informed of the developments. The
learned Judge observed that since the Plaintiff led evidence of the
attesting witness, the execution of the Will has been proved beyond all
doubts.
16. The learned Judge then referred to the contention of the
Defendant that the Will was not disclosed even after the suit was filed by
the Defendant. The learned Judge observed that it did seem a little odd
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that the Will at that point was not disclosed; but, according to the
learned Judge, the delay in disclosing the will could not be fatal to the
Plaintiff’s case.
17. The learned Judge observed that the writings of Aruna i.e.
wife of the Defendant were not proved. There was nothing to indicate
that it was in her handwriting when they were made. The contents of
those writing did not refer to the facts that were relevant.
18. The learned Judge observed that it was for the Defendant to
establish that the deceased was not of sound and disposing mind. It was
open to the Defendant to lead evidence of the doctors who had treated
the deceased from time to time. The Defendant could not establish that
the consultation with the neurophysician was occasioned due to the
deceased not being fully possessed of his mental faculties to such an
extent that he was incapable of executing a Will. In conclusion, the
learned Judge observed that the Court’s conscience was satisfied to hold
that the Will was valid. The defendant had failed to establish that the
will was not validly executed and that the Plaintiff had established that
the Will was validly executed by the deceased Testator. The caveat was
dismissed. The Probate of the last Will and testament of Tarapada
Chatterjee was granted. The issues which were framed were answered
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accordingly.
SUBMISSIONS OF SHRI KAMDAR LEARNED SENIOR COUNSEL FOR
THE APPELLANTS (DEFENDANTS) :
19. Shri Kamdar appearing for the Appellants made various
submissions and in support of his submissions referred to a few
judgments. Those judgments would be discussed at the appropriate place
in this judgment. Shri Kamdar submitted that the basic requirements for
grant of a probate as per Section 68 of the Indian Evidence Act, 1872
and Section 63 of the Indian Succession Act, 1925, was the proof of
sound and disposing mind of the testator. That onus was on the
propounder of the Will. However, mere statutory compliance of these
provisions were never sufficient to grant Probate. The order granting
probate is a judgment in rem. It is not a mere adversarial litigation
between the two parties. Shri Kamdar submitted that there are certain
suspicious circumstances in this case and, therefore, those circumstances
lead to the conclusion that the Will was not validly executed. Those
circumstances are as follows :
i. Shaky signature of the testator.
ii. Total disinheritance of the son (original Defendant). His
existence is not even mentioned in the Will.
iii. The Plaintiff who was the propounder of the Will taking lead in
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making of the Will and getting the entire benefit.
iv. No evidence of soundness of mind.
v. The testator was suffering from Parkinson disease. He was
hospitalized for 45 days and was under treatment by the
neurophysicians.
vi. The Plaintiff did not examine herself.
20. Shri Kamdar submitted that the only attesting witness
examined for proving the signature on the Will was Advocate Sandeep
Dave whose mother had appeared for the Plaintiff in the partition Suit
No.852/1995 filed by the Defendant.
21. Shri Kamdar submitted that the onus of proving the Will is
on the propounder of the Will and this burden was not discharged. In
probate proceedings, the specific pleadings were not necessary and that
the affidavit in support of the caveat in this case had sufficient pleadings.
It was not necessary to take even the plea of forgery, if the signature is
shaky / improper. If suspicious circumstances existed, there was burden
on the propounder to dispel the circumstances by leading cogent
evidence. Disinheritance of the natural heir must be explained since in
this case existence of the Will was not pointed at the first available
opportunity, when the Court Receiver was appointed.
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SUBMISSIONS OF SHRI TULZAPURKAR LEARNED SENIOR COUNSEL
FOR THE RESPONDENT (PLAINTIFF) :
22. Shri Tulzapurkar submitted that the caveator had taken the
only ground regarding the valid execution of the Will. That was the only
issue framed and, therefore, the Plaintiff was only required to prove the
valid execution. The Plaintiff was required to prove that the Will was
executed by the Testator and was attested by two attesting witnesses and
that he was in a sound and disposing state of mind. All the other
contentions that the Will was unnatural, it was brought about by undue
influence and that there were other suspicious circumstances were
required to be proved by evidence of the caveator / original Defendant.
The arguments are required to be confined to the pleadings and the
enquiry that the Court makes, is for answering the issues for the Court
on the basis of the pleadings. The Appellant – Defendant cannot go
beyond the pleadings.
23. Shri Tulzapurkar then referred to the evidence led by the
Plaintiff to support his contention on the merits of the matter. He
submitted that the circumstances which are termed as suspicious by the
Defendant were not suspicious at all. The exclusion of the Defendant
was not a suspicious circumstance. The testator was suffering from
Parkinson disease is not a suspicious circumstance. The Will was not
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produced earlier is also not a suspicious circumstance. The examination-
in-chief of the Plaintiff was not compulsory; and her non-examination is
also not a suspicious circumstance.
24. The Plaintiff had taken care of the deceased for a number of
years. The original Defendant never stayed with him even in his illness.
25. The evidence of the attesting witness would prevail over the
contrary evidence of the expert witness examined on behalf of the
Defendant in respect of the signature of Shri Tarapada Chatterjee on the
Will. In any case, even the Plaintiff has examined PW-4 Dilip Ahiwale
who has supported the Plaintiff’s case. If the execution was proved, then
late production of the Will cannot be termed as a suspicious
circumstance. The letters produced by the Defendant himself showed
the strained relationship between the testator and the Defendant.
26. Based on these evidence and the submissions, following
points arise for our determination. They are as follows :
i. Whether the Will was validly executed ?
ii. Whether in the absence of specific plea in the affidavit in support of the
caveat, this Court can test the suspicious circumstances ?
iii. Whether there were suspicious circumstances surrounding the Will
which required rejection of the Probate ?
iv. Whether there is any reason to interfere with the impugned judgment and
order ?
v. What order ?
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REASONS AND CONCLUSION :
Necessity of specific pleadings :
27. Shri Kamdar relied on the suspicious circumstances
surrounding the Will. As we have referred to hereinabove, Shri
Tulzapurkar, the learned Senior Counsel submitted that the Respondent
could not have enlarged the scope of pleadings and consideration of
evidence in the absence of the specific pleadings. According to him, the
pleadings in support of the caveat were restricted to disputing the
testator’s signature on the Will and the circumstances of not mentioning
existence of the Will by the Plaintiff at the earliest opportunity. Apart
from that, there were no pleadings in the affidavit in support of the
caveat and, therefore, there was no question of considering the evidence
led by the Defendant in respect of the suspicious circumstances alleged
by the learned Senior Counsel Shri Kamdar.
28. In support of this submission, Shri Tulzapurkar relied on the
observations of a learned Single Judge Bench of the High Court of Delhi
in the case of Budh Singh Vs. Raghubir Singh and others 1. Paragraph-21 of
the said judgment reads thus :
1 2015 SCC OnLine Del 14528
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“21. I am of the view that though the onus to prove the Will may
be on the propounder thereof but a challenger to the Will is
required to, in the pleadings, specifically plead the grounds on
which a challenge is sought to be made to the Will so as to let the
propounder of the Will know the grounds on which the Will is
contested, to be in a position to lead evidence to dispel such
grounds. A challenger to the Will cannot be allowed to, without
taking any pleading or any specific grounds of challenge, spring
surprises and at the stage of arguments contend that this has not
been proved or that has not been proved.”
29. Shri Tulzapurkar submitted that unless the allegations are
pleaded in the caveat, the Plaintiff need not respond to those allegations.
The burden is on the Defendant to plead and prove those allegations.
Once the Testamentary Petition is converted into a Suit, the law of
pleadings apply.
30. Shri Kamdar countered these submissions by relying on the
judgment of the Hon’ble Supreme Court in the case of Kavita Kanwar Vs.
Pamela Mehta and others2. Paragraph-25.1 of the said judgment reads
thus:
“25.1. The objection on behalf of the Appellant does not stand in
conformity with the law declared in H. Venkatachala
Iyengar Vs. B.N. Thimmajamma and others, AIR 1959 SC
443 and Rani Purnima Debi and others Vs. Kumar
Khagendra Narayan Dev and others AIR 1962 SC 567 and
2 AIR 2020 SC 2614
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scores of other decisions where this Court has consistently
held that the probate proceeding is ultimately a matter of
conscience of the Court; and irrespective of whether any
plea in opposition is taken or not, a propounder of Will is
required to satisfy the conscience of the Court with removal
of all the suspicious circumstances. By the very nature and
consequence of this proceeding, filing or non-filing of
written statement or objections by any party pales into
insignificance and is of no effect. The probate proceeding is
not merely inter-partes proceeding but leads to judgment in
rem and, therefore, even when no one contests, it does not
ipso facto lead to grant of probate. The probate is granted
only on proof of Will as also on removal of suspicious
circumstances, if there be any, to the final satisfaction of
the conscience of the Court.”
31. Thus from the observations of the Hon’ble Supreme Court, it
is clear that irrespective of whether any plea in opposition is taken or
not, the Plaintiff in this case who was the propounder of the Will was
required to satisfy the conscience of the Court with removal of suspicion
surrounding the execution of the Will. Therefore, in that behalf we agree
with Shri Kamdar, the learned Senior counsel for the Defendants that it
was for the Plaintiff to satisfy the conscience of the Court by removing
the suspicion regarding the circumstances pointed out on behalf of the
Defendant.
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Exclusion of the Original Defendant from the Will :
32. According to Shri Kamdar, one important suspicious
circumstance was the exclusion of the original Defendant, who was the
son of the Testator. There is not even a reference to his name in the Will.
This was quite unnatural. In support of this contention, he relied on the
judgment of the Hon’ble Supreme Court in the case of Ram Piari Vs.
Bhagwant and others3. In paragraph-4 of the said judgment it was
observed that even though it cannot be said to be hard and fast rule, yet
when disinheritance is amongst heirs of equal degree and no reason for
exclusion is disclosed; then the standard of scrutiny is not the same and
if the Courts failed to be alive to it as was clear from their orders then
their orders cannot be said to be beyond review.
The same view was approved by the Hon’ble Supreme Court
in the case of Gurdial Singh (Dead) Through Lr. Vs. Jagir Kaur (Dead) and
another4.
33. In answer to this submission, Shri Tulzapurkar relied on the
observations of the Hon’ble Supreme Court in the case of Uma Devi
Nambiar and others Vs. T.C. Sidhan (Dead) 5. Paragraph-16 thereof reads
thus:
3 AIR 1990 SC 1742
4 AIR Online 2025 SC 592
5 (2004) 2 SCC 321
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“16. A Will is executed to alter the ordinary mode of succession
and by the very nature of things it is bound to result in
earlier reducing or depriving the share of natural heirs. If a
person intends his property to pass to his natural heirs, there
is no necessity at all of executing a Will. It is true that a
propounder of the Will has to remove all suspicious
circumstances. Suspicion means doubt, conjecture or
mistrust. But the fact that natural heirs have either been
excluded or a lesser share has been given to them, by itself
without anything more, cannot be held to be a suspicious
circumstance especially in a case where the bequest has been
made in favour of an offspring. As held in PPK Gopalan
Nambiar v. PPK Balakrishnan Nambiar and Ors. : [1995] 2
SCR 585 it is the duty of the propounder of the Will to
remove all the suspected features, but there must be real,
germane and valid suspicious features and not fantasy of the
doubting mind. It has been held that if the propounder
succeeds in removing the suspicious circumstances, the
Court has to give effect to the Will, even if the Will might be
unnatural in the sense that it has cut off wholly or in part
near relations (See Puspavati and Ors. v. Chandraja
Kadamba and Ors. : AIR 1972 SC 2492. In Rabindra Nath
Mukherjee and Anr. v. Panchanan Banerjee (dead) by LRs.
and Ors. : (1995) 4 SCC 459), it was observed that the
circumstance of deprivation of natural heirs should not raise
any suspicion because the whole idea behind execution of
the Will is to interfere with the normal line of succession and
so, natural heirs would be debarred in every case of Will. Of
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course, it may be that in some cases they are fully debarred
and in some cases partly.”
34. Thus, from the above discussion it is clear that if the natural
heirs have either been excluded or a lesser share has been given to them,
that by itself without anything more, cannot be held to be a suspicious
circumstances specially in a case where the bequest has been made in
favour of an offspring.
The Plaintiff being the major beneficiary :
35. The next suspicious circumstance raised by Shri Kamdar was
the fact that the Plaintiff was the major or the only beneficiary who had
taken major steps and prominent part in preparing the Will. In support
of this proposition that it is a suspicious circumstance, Shri Kamdar
relied on the observations of the Hon’ble Supreme Court in the case of
Kavita Kanwar Vs. Pamela Mehta (supra). Paragraphs-27 & 28 in that
context read thus:
“27. As noticed, there has not been any question on the
testamentary capacity and soundness of mind of the
testatrix; and her handwriting as also signatures on the Will
in question are also beyond controversy. However, the Trial
Court and the High Court have concurrently found some
such suspicious circumstances which are of material bearing
and which have remained unexplained. Put in a nutshell, the
unexplained suspicious circumstances so found are: (a) that
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Appellant, the major beneficiary, played an active role in
execution of the Will in question and attempted to conceal
this fact before the Court; (b) that there had not been any
plausible reason for non-inclusion of the only son and other
daughter of the testatrix in the process of execution of the
Will and for excluding them from the major part of the
estate in question; (c) that there was no clarity about the
construction supposed to be carried out by the Appellant;
(d) that the manner of writing and execution of the Will
with technical and legal words was highly doubtful; and (e)
that the attesting witnesses were unreliable and there were
contradictions in the statements of the witnesses. Because of
these major circumstances coupled with various
supplemental factors, the Trial Court and the High Court
felt dissatisfied on the root question as to whether the
testatrix duly executed the Will in question after
understanding its contents.
28. There is no doubt that any of the factors taken into account
by the Trial Court and the High Court, by itself and standing
alone, cannot operate against the validity of the propounded
Will. That is to say that, the Will in question cannot be
viewed with suspicion only because the Appellant had
played an active role in execution thereof though she is the
major beneficiary; or only because the Respondents were
not included in the process of execution of the Will; or only
because of unequal distribution of assets; or only because
there is want of clarity about the construction to be carried
out by the Appellant; or only because one of the attesting
witnesses being acquaintance of the Appellant; or only
because there is no evidence as to who drafted the printed
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part of the Will and the note for writing the opening and
concluding passages by the testatrix in her own hand; or
only because there is some discrepancy in the oral evidence
led by the Appellant; or only because of any other factor
taken into account by the Courts or relied upon by the
Respondents. The relevant consideration would be about the
quality and nature of each of these factors and then, the
cumulative effect and impact of all of them upon making of
the Will with free agency of the testatrix. In other words, an
individual factor may not be decisive but, if after taking all
the factors together, conscience of the Court is not satisfied
that the Will in question truly represents the last wish and
propositions of the testator, the Will cannot get the approval
of the Court; and, other way round, if on a holistic view of
the matter, the Court feels satisfied that the document
propounded as Will indeed signifies the last free wish and
desire of the testator and is duly executed in accordance
with law, the Will shall not be disapproved merely for one
doubtful circumstance here or another factor there.”
From the above discussion, the Hon’ble Supreme Court
considered certain suspicious circumstances surrounding the Will which
were canvassed before us in the present case by Shri Kamdar. The
Hon’ble Supreme Court observed that the relevant consideration would
be about the quality and nature of each of those circumstances and the
cumulative effect and impact of all of them upon making of the Will with
free agency of the testator. An individual factor may not be decisive but,
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after taking all the factors together, the Courts should decide whether
the Will in question truly represents the last wish and propositions of the
testator.
Signature on the Will :
36. Shri Kamdar raised another suspicious circumstance
regarding the signature of the testator on the Will. He relied on the
evidence of DW-3 who was examined as a handwriting expert. That
report indicates that the signature on the Will may not be that of the
testator when it is compared with his signatures on his earlier
documents. As against this submission, Shri Tulzapurkar submitted that
there was competing evidence of the expert examined on behalf of the
Plaintiff i.e. PW-4 Dilip Ahiwale. Apart from that, Shri Tulzapurkar
heavily relied on the evidence of PW-1 Sandeep Dave, who was an
attesting witness. He submitted that the evidence of the attesting witness
prevails over the expert’s evidence. In that context, he relied on the
judgment of the Hon’ble Supreme Court in the case of Shashi Kumar
Banerjee and others Vs. Subodh Kumar Banerjee since deceased through LRs.
and others6. The Hon’ble Supreme Court observed that, in the
circumstances of the case before the Hon’ble Supreme Court they did not
consider the evidence of the expert as conclusive. It did not falsify the
6 1963 SCC OnLine SC 114
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evidence of the attesting witness. It was observed that the expert’s
evidence as to the handwriting is opinion evidence and it can rarely, if
ever, take the place of substantive evidence. Before acting on such
evidence it is usual to see if it is corroborated either by clear direct
evidence or by circumstantial evidence.
37. Shri Tulzapurkar relied on the another judgment of the
Hon’ble Supreme Court in this context in the case of Chennadi Jalapathi
Reddy Vs. Baddam Pratapa Reddy (dead) through L.Rs. and another 7. In
paragraphs-10 & 13 thereof it was observed that it is well-settled that
the Court must be cautious while evaluating expert evidence, which is a
weak type of evidence and not substantive in nature. It is also settled
that it may not be safe to solely rely upon such evidence, and the Court
may seek independent and reliable corroboration in the facts of a given
case. Generally, mere expert evidence as to a fact is not regarded as
conclusive proof of it. The evidence of a handwriting expert can rarely be
given precedence over substantive evidence. Shri Tulzapurkar, therefore,
submitted that firstly, the evidence of PW-1 Sandeep Dave would prevail
over the expert’s opinion and in any case the Plaintiff has led evidence of
the handwriting expert’s opinion in the form of PW-4 Dilip Ahiwale in
support of her case.
7 (2019) 14 SCC 220
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38. In this backdrop of the legal principles and the arguments
advanced before us, the evidence led by the parties will have to be
tested. PW-1 Sandeep Dave is an important witness in this case. He was
not knowing the testator or the Plaintiff before the Will was executed.
He was directed by his senior to go to the house of the testator and attest
the Will. He deposed that he had gone to the house of the testator and
had seen him signing the Will. He had also seen the other attesting
witness Dr. N.M. Kriplani making signatures as the other attesting
witness on the Will. We have reproduced the relevant passages from his
deposition. In our opinion, he is a reliable witness. He has deposed the
facts which he had actually seen. Though it was tried to be shown that
his mother had appeared for the Plaintiff, but that was subsequent to the
execution of the Will and in any case there is nothing wrong if the
attesting witness is brought by the propounder of the Will. In this case
the testator was residing with the Plaintiff i.e. his daughter. She was
looking after him and, therefore, it was not unnatural for her to take
steps to help her father in completing the process of executing the Will.
The other attesting witness could not be examined as he had passed
away. PW-1 has stood firm in the extensive cross-examination conducted
on behalf of the Defendants. He had identified the signature of the
testator on the Will. Therefore, in our opinion, his evidence prevails and
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we see no reason to disbelieve him.
39. In this view of the matter, based on the above legal principles
his evidence prevails over the other points contended by Shri Kamdar in
respect of the signature of the testator on the said Will.
40. Once it is held that PW-1 is a reliable witness and his
evidence that the testator has put his signature on the Will is accepted,
then late production of the Will by the Plaintiff does not remain a
suspicious circumstance. In any case though it was not produced at the
first instance when the ad-interim relief was obtained by the Defendant
in a separate Suit filed by him, shortly thereafter, the Plaintiff had filed
the Probate Petition and had come out with the case of existence of the
Will. Therefore, we do not find that to be a suspicious circumstance in
the present case.
41. Shri Kamdar argued that the signature on the Will was shaky,
which would indicate that the Testator was neither physically fit nor
possessed soundness of mind while executing the Will. In support of his
contention, he relied on the fact that soon after the execution of the Will,
the Testator was admitted in the hospital periodically for prolonged
periods. We are unable to accept this submission that merely because he
was subsequently admitted to a hospital periodically, it would not
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indicate that in March, 1989 he did not have soundness of mind for
executing the Will. The evidence shows that the testator was suffering
from Parkinson disease and, therefore, it explained the shaky signature.
But that does not mean that he was unable to make his signature. PW-
1’s evidence is clear enough that the testator himself had made his
signature on his Will.
42. The other suspicious circumstance raised by Shri Kamdar
was the exclusion of the original Defendant and not mentioning of his
name in the Will. In this context, if the evidence is perused, it shows the
strained relationship between the original Defendant and his father. The
testator i.e. father of the original Defendant, the Defendant’s mother and
his sister – the Plaintiff not only did not attend his wedding which had
taken place in the same city but they were not even aware of the date
and place of the Defendant’s wedding. This is a strong proof of strained
relationship between the original Defendant and his father.
43. Another strong indication about their strained relationship is
that the Defendant was not even aware about the death of his own
mother. The Plaintiff being his sister had to write a letter to inform him
about their mother’s illness and death. This situation definitely does not
show that the relationship between the Defendant and his parents was
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cordial.
44. The letters produced on record at Exhibits-D1/3, D1/6,
D1/7, D1/8, D1/9 and D1/11 show that the Plaintiff was constantly
informing the original Defendant regarding the health of their father. On
one occasion, the original Defendant was in Calcutta, so was his father
and sister; and yet, the original Defendant had not chosen to meet them.
When the testator passed away, the Plaintiff was not in India but then
even the Defendant was not with him. The testator had passed away in
the hospital. Though the Defendant had attended the cremation, he did
not look after his father when his father was in the hospital. The
evidence of PW-3 Jatindar Kumar Sethi who was a resident of the same
building as that of the testator, has deposed that he had never seen the
original Defendant until the Plaintiff got married after the death of the
testator. There is no reason to disbelieve his evidence. The evidence
shows that it was the Plaintiff who was taking care of her deceased
father and the original Defendant had not done anything to support his
father or to take his care. Therefore, non inclusion of the original
Defendant’s name in the Will cannot be termed as a suspicious
circumstance. Similarly, the Plaintiff having been given the entire
property of the testator is also not a suspicious circumstance.
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45. The original Defendant tried to rely on the purported notes
made by his wife. However, contents of those notes are not proved.
When the recording of evidence in the Suit had started, the original
Defendant’s wife was very much alive, but, she has not filed her affidavit
of evidence. There was no occasion for her to make notes regarding the
situation and keep those notes with herself. They served no purpose.
Therefore, we are not relying on those notes while considering the case
before us.
46. As a result of the above discussion, we answer the points for
determination as follows :
i] The Will is validly executed.
ii] In the absence of specific plea in the affidavit in support of
the caveat, this Court can test the suspicious circumstances.
iii] There were no suspicious circumstances surrounding the
Will which requires rejection of the Probate.
iv] We see no reason to interfere with the impugned judgment
and order.
v] The Appeal deserves to be dismissed.
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47. Hence, the following order :
:: O R D E R ::
i. The Appeal is dismissed.
ii. The probate of the last will and testament of Tarapada Chatterjee
granted by the learned Single Judge is upheld.
iii. Interim Application No.2251/2020 is also disposed of.
iv. No order as to costs.
(RANJITSINHA RAJA BHONSALE, J.) (SARANG V. KOTWAL, J.)
48. At this stage, the learned counsel for the Appellants prayed
for stay on the grant of Probate for a period of eight weeks. The learned
counsel for the Respondent objects to passing such order. In our opinion,
since we had decided the Appeal by this judgment, it is not possible to
accede to the request made by Shri Sanglikar, the learned counsel for the
Appellants.
(RANJITSINHA RAJA BHONSALE, J.) (SARANG V. KOTWAL, J.)
Deshmane (PS)
Digitally signed
by
PRADIPKUMAR
PRADIPKUMAR PRAKASHRAO
PRAKASHRAO DESHMANE
DESHMANE Date:
2026.10.07
16:11:17
+0530
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