In The Goods Of: Pranati Ghosal vs Nirmalya Kumar Ghosal -Vs- Prakriti ...
2025 Latest Caselaw 54 Cal/2

Calcutta High Court

In The Goods Of: Pranati Ghosal vs Nirmalya Kumar Ghosal -Vs- Prakriti ... on 2 May, 2025

Author: Sugato Majumdar

Bench: Sugato Majumdar

                                                                                   2019:CHC-OS:306
                    IN THE HIGH COURT AT CALCUTTA
            TESTAMENTARY AND INTESTATE JURISDICTION
                                ORIGINAL SIDE


Present:
The Hon'ble Justice Sugato Majumdar


                                      TS/22/2017
   IA NO: GA/2/2017 (Old No: GA/3190/2017), GA/3/2017 (Old No: GA/3759/2017),
              GA/5/2018 (Old No: GA/104/2018), GA/7/2021, GA/9/2024


       IN THE GOODS OF: PRANATI GHOSAL, DECEASED -AND

                                         VS

       NIRMALYA KUMAR GHOSAL -VS- PRAKRITI MALHOTRA



For the Plaintiff                 :         Mr. Reetobroto Kumar Mitra, Sr. Adv.
                                            Mr. Rudrajit Sarkar, Adv.
                                            Mr. Debangshu Dinda, Adv.


For the Defendant                 :         Mr. Soumabho Ghosh, Adv.
                                            Ms. Ashika Daga, Adv.
                                            Ms. Shreya Basu, Adv.


Hearing concluded on              :         06/02/2025

Judgment on                       :         19/02/2025


Sugato Majumdar, J.:

The instant application is filed by one Nirmalya Kumar Ghosal praying for

grant of probate of the last will and testament dated 23rd February, 2014, of the

Testatrix Pranati Ghosal, since deceased.

Page |2

2019:CHC-OS:306 Late Pranati Ghosal, since deceased, had last place of abode, at the time of

death was at 3, Sunny Park, Kolkata-700019 in the State of West Bengal. She

breathed her last in the same address on 11/09/2016. She left the instant will

being her last will and testament dated 23rd February, 2014. The Petitioner was

appointed as an executor. The original application was filed praying for grant of

probate. Citations were issued both general and specific.

Miss. Prakriti Malhotra, daughter of the Testatrix, filed caveat supported by

affidavit. The caveat was allowed and the probate proceeding, on becoming

contentious, was renumbered as TS 22 of 2017. Affidavits in support of caveat

were treated as the written statement.

It is contended in the affidavit that the Testatrix always intended that assets

would be distributed equally among her children. The Testatrix was in total

control of her affairs and house till her health started failing in summer of 2014.

Since April 2015, brother of the Caveatrix and the sister-in-law had taken over

control of the affairs house the Testatrix completely depended on them. The

Testatrix was given anti-depression medication and was ill-treated. In February

2016, the Testatrix was admitted in hospital. When the Caveatrix, usually staying

in U.K., came to visit her mother, she expressed that her assets should be

distributed equally among the Petitioner and the Caveatrix. Subsequent to death of

the mother the Caveatrix came to know of the instant will.

It is contended in the written statement by the Caveatrix that apparently,

the will was printed on a fresh plain paper which is unusual for making a will; it is

further contended that the will is a manufacture document made after death of the

mother, previously procuring the signature of the Testatrix in a blank paper prior Page |3

2019:CHC-OS:306 to her death. In nutshell, it is stated that the will is a forged document. It is further

stated that there was no signature of the maternal uncle being a bar-at-law, any

advocate or doctor in the will. According to the Caveatrix, the disposition of the

property through the instant will is unnatural and the execution of the will was

surrounded by suspicious circumstances. It is further contended that affidavit of

assets is erroneous various antic items were suppressed. It is contended that the

probate should not be granted to the will.

As a subsequent stage of the suit, the caveat was withdrawn. Till then the

witness of the Plaintiffs, namely, the attesting witness was extensively cross-

examined.

Will is produced. The attesting witness identified the signatures of the

Testatrix in the will as her signatures. It is stated in examination- in- chief that the

Testatrix signed the will in presence of the attesting witnesses and they also put

their signatures at the time of execution of the will by the Testatrix in her presence.

It was also stated by the attesting witness that at the time of the execution of the

will r physical and mental condition of the Testatrix was good. She further stated

that Testatrix was her husband friend's wife as well as her friend too. It is also in

her oral testimony that the Executor was not present at the time of the execution of

the will. Suggestion was given in course of cross-examination that signature of the

Testatrix is in the odd place and also suggested that signature of the Testatrix was

obtained on a blank document. All the suggestions were denied. Rather in course

of cross-examination, the attesting witness affirmed that the Testatrix signed first

on the will followed by the attesting witness herself, followed by the other attesting Page |4

2019:CHC-OS:306 witness. It was also suggested in course of cross-examination that typed contents

of the will were incorporated after death of the Testatrix that was denied.

Mr. Mitra, the Learned Senior Counsel appearing for the

Petitioner/Plaintiff, argued that the execution of the will is properly proved by the

attesting witness. Since the caveat was withdrawn. Nothing remained to oppose

the grant of probate. According to him, probate should be granted.

In this case, caveat was withdrawn subsequent to witness action. The will

was challenged as a manufactured one.

It is well settled proposition of law that burden of proof that the will is a

manufactured one, is on the party who alleges so. In H. Venkatachala Iyengar

v. B.N. Thimmajamma (AIR 1959 SC 443), three Judges' Bench of the

Supreme Court of India laid down the principle in the following words:

"It is true that, if a caveat is filed alleging the exercise of undue

influence, fraud or coercion in respect of the execution of the will

propounded, such pleas may have to be proved by the caveators; but,

even without such pleas circumstances may raise a doubt as to whether

the testator was acting of his own free will in executing the will, and in

such circumstances, it would be a part of the initial onus to remove any

such legitimate doubts in the matter."

In Rani Purnima Debi & Anr. Vs. Kumar Khagendra Narayan Deb &

Anr. (AIR 1962 SCC 567), four Judges' Bench of the Supreme Court of India

succinctly clarified this:

Page |5

2019:CHC-OS:306 "The onus of proving the will was on the propounder and in the absence

of suspicious circumstances surrounding the execution of the will proof

of testamentary capacity and signature of the testator as required by law

was sufficient to discharge the onus. Where, however, there were

suspicious circumstances, the onus would be on the propounder to

explain them to the satisfaction of the Court before the will could be

accepted as genuine. If the caveator alleged undue influence, fraud or

coercion, the onus would be on him to prove the same. Even where

there were no such pleas but the circumstances gave rise to doubts, it

was for the propounder to satisfy the conscience of the Court."

Except challenging the testimony of the attesting witness in cross examination,

which was denied and refuted by the later, no evidence was adduced to establish

that the will is manufactured one. Therefore, it can safely be concluded that the

Defendant failed to discharge the burden of proof that the will is a manufactured

one. Accordingly, the plea is not proved.

The attesting witness properly proved the will as well as its execution in their

presence. The Testatrix was physically fit and mentally alert as deposed. Although

suggestions were given in cross examination, no evidence was adduced to the effect

by the Defendant to show that the Testatrix was neither mentally alert nor

physically fit at the time of execution of the will. Therefore, the evidence of the

attesting witness stands and it is established that the Testatrix was physically fit

and mentally alert at the time of execution of will.

It is stated by the attesting witness that the attesting witnesses were family

friends of the Testatrix; they were not unknown to the Testatrix. It is rather the

Testatrix who called them to sign the will as the attesting witness. Disposition of Page |6

2019:CHC-OS:306 properties through will is also not unnatural. Therefore, evidence adduced, do not

create any doubt of cloud surrounding the execution of the will.

In view of this discussions made above and on appreciation of evidence, this

Court is of considered opinion that the probate of the last will and testament of the

Testatrix late Pranati Ghosal dated 23/02/2014 is duly proved.

Let probate be granted as prayed for.

Accounts and inventory shall be filed within six months in accordance with

section 317 of the Indian Succession Act, 1925.

(Sugato Majumdar, J.)