Calcutta High Court
Sant Agarwal vs Rabi Sinha on 20 April, 2026
Author: Debangsu Basak
Bench: Debangsu Basak
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OD-2
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
AN APPEAL FROM ITS TESTAMENTARY AND INTESTATE JURISDICTION
ORIGINAL SIDE
APD/3/2024
With TS/6/2009
IN THE GOODS OF:
AKHILESH KUMAR SINHA (DEC)
-AND-
SANT AGARWAL
-VS-
RABI SINHA
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
-AND-
The Hon'ble JUSTICE MD. SHABBAR RASHIDI
For the Appellant : Mr. Harpal Singh, Adv.
Mr. Shaunak Ghosh, Adv.
Mr. Sanjay Kumar Shaw, Adv.
For the Respondent : Mr. Debdut Mukherjee, Adv.
Mr. Kinjal Kumar Baral, Adv.
HEARD ON : 20.04.2026 DELIVERED ON : 20.04.2026 MD. SHABBAR RASHIDI, J.:-
1. The instant appeal is directed against the judgment and order
passed on May 18, 2023 in TS/6/2009.
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2. By the impugned judgment and order, the learned Trial Judge has
dismissed an application for grant of probate filed on behalf of the
plaintiffs therein. In the impugned judgment and order, learned
Single Judge held that:
“In the case in hand, there are several circumstances
which create suspicious circumstances surrounding the
execution of the Will of the testator as stated above. Pleas
of coercion and fraud must be proved by the caveator. But
if any doubt is created regarding execution of the will then
it is for the propounder of the will to clear such doubts.
Before grant of probate, the conscience of the Court must
be made clear, and the court must be satisfied that no
suspicious circumstance existed at the time of execution of
the will. It is rather a case which alleges that the testator
did not intend to give effect to the writings contained in the
will since his signatures were obtained in blank papers. It
is also the case that the propounder of the will was
present and took active role in preparation of the will and
derived substantial benefit therefrom. In view of the
observations of the Supreme Court of India, discussed
above, burden of proof is on the propounder of the will to
stir clear the clouds of suspicions surrounding execution of
the will. The propounder of the Will failed to remove to
suspicious circumstances surrounding the execution of the
Will. Therefore, it is not a right case that the probate
should be granted.”
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3. It is submitted by learned Senior Advocate appearing for the
appellant that the learned Single Judge was not justified in holding
that the impugned Will, probate against which was sought, to be
clad in mystery. Learned Senior Advocate for the appellant also
submitted that the learned Trial Court failed to take into account of
provisions contained under Section 63 of the Indian Succession Act,
1925.
4. It was also contended that the learned Single Judge erred in holding
that there was contradiction between the testimony of P.W.-1 and
P.W.-2 so far as it relates to typing of the Will. Learned Senior
Advocate also contended that the learned Single Judge erroneously
held the purport of the impugned Will which contained a back sheet
naming the advocate who presumably assisted the testator in
executing the Will.
5. It was further contended that the learned Single Judge erred in
holding that the testator did not intent to give effect to the writings
contained in the Will in question.
6. Learned Senior Advocate for the appellant also submitted that the
learned Single Judge erred in holding that there were contradictions
in the statement of the attesting witnesses with respect to the place
of execution of the Will in question. Learned Senior Advocate further
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submitted that the learned Single Judge erred in holding that the
Will in question was executed bequeathing all the properties of the
testator in favour of outsiders. It is contended that a portion of the
self same property was transferred through another Will in favour of
the family members of the testator.
7. It has also been submitted on behalf of the appellant that the
learned Single Judge did not take into consideration that although
the propounder and beneficiary of the Will were mentioned as
tenant in the subject matter of the Will but no such document was
produced before the learned Trial Court.
8. It was the case of the appellant/plaintiff made out in the Trial Court
that the testator before his death used to reside at FD-347, Salt
Lake City, Kolkata-700091. The testator executed his last Will and
Testament on December 24, 1987 in respect of the property
mentioned therein. One Sri Sant Agarwal and failing him Sri
Mahabir Prasad Agarwal was appointed as executor to such Will.
The testator was survived by his widow, two daughters and a son.
The aforesaid Will was duly attested by two witnesses. Declaration
of one of the attesting witnesses was annexed to the application for
grant of probate.
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9. On issuance of citation, the answering defendant i.e. the son of the
testator, contested the probate proceeding. He challenged the Will
against which the probate was sought.
10. In the affidavit filed on behalf of the defendant, it was contended
that the Will was unnatural one and that the testator had no
transferable right and title in the property involved in such Will. It
was also contended that the signature of the testator was obtained
on a blank paper and such paper was converted into a Will. This
was manifest from the fact that the signature of the testator
appeared at the bottom of the pages much after the writings on the
page ended.
11. The defendant also made out a case that the Will was silent as to on
whose instruction the Will was drafted. It was contended that the
signature of the testator on the Will was obtained by practicing
fraud upon him by the appellant/executor. The testator was not at
all aware of the contents of the Will. The defendant also made out a
case that the testator died leaving behind his widow and the instant
application for grant of probate was filed belatedly much after the
death of the wife of the testator.
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12. On the basis of the pleadings put in by the parties, the learned Trial
Court framed as many as five issues, namely:
“1. Is the suit for probate maintainable in its present
form and not?
2. Is the Will dated 24 December, 1987 is a valid Will of
Akhilesh Kumar Sinha since deceased as alleged?
3. Whether the alleged signatures of Akhilesh Kumar
Sinha were obtained on blank papers and converted into
alleged Will dated 24th December, 1987?
4. Whether fraud was so practised upon Akhilesh Kumar
Sinha for obtaining his signatures in the so called Will
dated 24th December, 1987?
5. Is the executor of the Will entitled to probate on the
Will annexed or not?”
13. It appears from the materials placed before us that the first issue
with regard to maintainability of the probate proceeding was
decided by the learned Single Judge in favour of the
petitioner/appellant. All other issues were taken up together for
consideration.
14. Upon hearing the parties and on consideration of the evidence
produced on their behalf, the learned Single Judge observed in the
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impugned judgment and order that there was a long gap between
the typed portion and signature of the testator on the first page of
the Will and signature of the testator was intervened by a long
unusual gap. Learned Single Judge upon consideration of the
provision of Section 63 of the Indian Succession Act, 1925
concluded that such gap appearing between the writings on the
pages of the Will and signature of the testator thereon was in
violation of Section 63(b) of the Act of 1925. Learned Single Judge
was of the view that such unusual blank spaces between the
writings of the Will and signature created reasonable suspicious
circumstances. In deciding such question, learned Single Judge
held that
“Signatures of the testator are there on each and every
page of the Will, which is marked as Ext. A. There is a
long gap between the typed portions and the signature of
the testator on the first page of the Will, only intervened
after a long gap below the typed words dots and ‘2’
indicating the second page. The fourth page of the Will
bears to signatures of the testator, one in the middle, the
other at the bottom. The next page is a blank one
containing signature of the testator which was penned
through. Questions were put to the Executor of the Will,
deposed as P.W.2 in course of cross-examination. When
he was asked why the testator signed twice on the last
page he could not explain the same. Rather answered that
Mr. Soni was there. He was again asked in cross-
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examination why there was a long gap after four lines on
the first page and thereafter the numerical two was given
followed by a long gap and then the signature of the
testator. His answer was he could not tell anything but
the testator signed that. It is in evidence of all the
Plaintiff’s witnesses that he was present at the time of
execution of the Will. Testimony of P.W.2 did not explain
these questions put to him. Although he deposed that he
was present at the time of execution of the Will, he did not
explain why a page is annexed to the Will bearing penned
through signature of testator. He did not deny that the
signature was that of the testator. He is supposed to
explain why a blank sheet was signed by the testator but
subsequently penned through; he failed to highlight
anything on this point.”
15. Another suspicious circumstance which was circumscribed by the
learned Single Judge in his impugned judgment is with regard to
the contradictory statement of two attesting witnesses. Evidently,
one of the attesting witnesses was examined in the probate
proceeding as a witness on behalf of the plaintiffs and stated in his
deposition that the Will in question was executed in presence of the
wife of the testator whereas the declaration filed on behalf of the
other attesting witness does not name the wife of the testator to be
present at the time of execution of the Will. Learned Single Judge
also noted serious contradiction in respect of the manner of
preparation and execution of the Will and has noted:
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“It is uniform statements of the Plaintiff’s witnesses that at
the time of execution of the Will the testator, Mr. Pranav
Singh (P. W.1), one of the attesting witnesses; Mr. Soni,
the other attesting witness; Mr. Agarwal, the Executor
herein and one Mr. Raj Kumar Tody (P.W.3) were present.
However, Mr. Pranav Singh stated in cross-examination
that Mrs. Sinha was also present which was not
corroborated by other witnesses. When the attesting
witness P.W.1 was confronted with the question in course
of cross-examination whether the testator signed blank
documents he replied that the testator typed the Will and
signed it in his presence. On the other hand, P.W.2, the
Executor of the Will stated in course of his deposition that
he did not know who prepared the Will. If testimony of the
attesting witness is to be relied upon then P.W.2 was
present at the time of execution and should have
witnessed the typing of the Will by the testator. As such, it
should be within his knowledge that the testator typed the
Will. But his testimony is otherwise in this regard. Drafting
and typing of the Will remains mysterious in view of
contradictory statements of witnesses. This creates a
suspicious circumstance.”
16. It further transpires from the materials on record that there are
serious contradictions with regard to the place where the alleged
Will was actually executed. We have noted that the executor was a
resident of FD-347, Salt Lake City, Kolkata-700091. According to
declaration filed on behalf of the one of the attesting witnesses, it
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was stated that the Will was executed at 48, Vivekananda Road,
Kolkata-700006 whereas the other attesting witness who has
deposed in this case has stated that the Will was executed at FD-
347, Salt Lake City, Kolkata-700091. On such score also, in the
impugned order, learned Single Judge held that the Will was
executed under suspicious circumstances. The learned Single
Judge held as follows:
“The probate application is filed along with a statement of
Mr. Soni, one of the attesting witnesses. This statement is
relied upon in the probate application. Affidavit is also
filed along with a probate application, solemnly affirmed
by Mr. Soni. Mr. Soni stated that Will was executed at 48,
Vivekananda Road, Kolkata – 700006. Subsequently, Mr.
Soni was not produced before this Court. This statement of
Mr. Soni cannot be taken as gospel truth to prove that Will
was executed at that place because he was not neither
deposed before this Court nor subjected himself to cross-
examination. The witnesses, who gave testimony in the
suit stated that the Will was executed at FD-347, Salt
Lake City, Kolkata – 700091 which was the residence of
the testator. They deposed that Mr. Soni was present. No
explanation is given why Mr. Soni did not come to this
Court to depose. It is true that any one of the attesting
witnesses may depose before the Court to prove execution
of the Will but Mr. Soni’s testimony became important in
view of the fact that he made a statement that Will was
executed at a different place and the same was relied
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upon in the probate application. Since the execution of Will
is challenged on the ground that some signatures of the
testators was obtained in a blank papers the testimony of
Mr. Soni becomes important and assumed significance
substantially when his statement on place of execution is
contradictory to the other attesting witness. This creates
suspicious circumstances surrounding the execution of the
Will.”
17. Upon consideration of the entire evidence as well as in
consideration of the aforementioned suspicious circumstances
attending to the alleged Will executed by late Akhilesh Kumar
Sinha, learned Trial Judge refused to grant probate to such Will
which resulted in the impugned judgment and order.
18. Section 63 of the Indian Succession Act, 1925 provides for the
manner in which a non-privileged Will is required to be executed.
Section 63 of the Act of 1925 reads as follows:-
“63. Execution of unprivileged wills.- Every testator,
not being a soldier employed in an expedition or engaged
in actual warfare, 1*[or an airman so employed or
engaged,] or a mariner at sea, shall execute his will
according to the following rules:-
(a) The testator shall sign or shall affix his mark to the
will, or it shall be signed by some other person in his
presence and by his direction.
(b) The signature or mark of the testator, or the signature
of the person signing for him, shall be so placed that it
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shall appear that it was intended thereby to give effect to
the writing as a will.
(c) The will shall be attested by two or more witnesses,
each of whom has seen the testator sign or affix his mark
to the will or has seen some other person sign the will, in
the presence and by the direction of the testator, or has
received from the testator a personal acknowledgment of
his signature or mark, or of the signature of such other
person; and each of the witnesses shall sign the will in the
presence of the testator, but it shall not be necessary that
more than one witness be present at the same time, and
no particular form of attestation shall be necessary.”
19. In the case at hand, it appears that there are legitimate disputes
with regard to execution of the impugned Will by the testator in the
light of the provisions contained in Section 63 of the Act of 1925.
There are allegations that the signature of the testator was obtained
by practicing fraud or otherwise on blank papers which were
subsequently converted into Will. There are apparently material
contradictions in the statement of the two attesting witnesses, one
of whom was examined as a witness in the probate proceeding and
declaration in the form of affidavit on behalf of the other attesting
witness was annexed to the application. The place of execution of
the alleged Will mentioned in the aforesaid testimonies of the
attesting witnesses are contradictory. Besides that, there are
contradictory statements with regard to the manner in which the
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alleged Will was executed. On one hand, it was alleged that the Will
in question was typed by the testator himself and, thereafter,
executed whereas, the other proposition shows it probable that the
signature of the testator was obtained and, thereafter, a document
in the nature of Will was prepared.
20. Section 63(b) requires the signature or mark of the testator or the
person signing for the testator to be so placed that it appears that it
was intended thereby to give effect to the writing as a Will.
Apparently, the writings on the impugned Will show an unusual gap
between the writings and the signatures of the testators. Not only
that, the last page of the Will, though contains signature of the
testator but does not contain in writing. Such facts give rise to
reasonable suspicion as to the execution of the Will in terms of the
provisions of Section 63 of the Act of 1925.
21. In the facts of the case at hand, the appellant/petitioner has not
been able to adduce evidence to overcome the said suspicion in
respect of the place of execution of the Will, the manner in which
the alleged Will was executed and that the testator actually
intended to execute a Will and give effect to the writings contained
in the impugned Will.
22. In the facts and circumstances of the case, we find no reason to
interfere with the impugned judgment and order. The same is
hereby affirmed.
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23. Accordingly, APD/3/2024 is dismissed, without any order as to
costs.
(MD. SHABBAR RASHIDI, J.)
24. I agree
(DEBANGSU BASAK, J.)
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