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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

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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          Deshmane(PS)
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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

                                                                       23 of 40
                                      : 24 :                       APEAL-OS-69-21-j.odt

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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                                       : 27 :                        APEAL-OS-69-21-j.odt

               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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                               : 29 :                      APEAL-OS-69-21-j.odt

“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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                                       : 30 :                        APEAL-OS-69-21-j.odt

          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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                             : 31 :                       APEAL-OS-69-21-j.odt

    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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                                      : 32 :                        APEAL-OS-69-21-j.odt

             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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                                      : 33 :                        APEAL-OS-69-21-j.odt

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
                                                                                 33 of 40
                                   : 34 :                      APEAL-OS-69-21-j.odt

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
                                                                            34 of 40
                                   : 35 :                   APEAL-OS-69-21-j.odt

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
                                                                         35 of 40
                                    : 36 :                   APEAL-OS-69-21-j.odt

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

                                                                          36 of 40
                                   : 37 :                     APEAL-OS-69-21-j.odt

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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                                   : 38 :                    APEAL-OS-69-21-j.odt

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
                                                                                                        40 of 40


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