Calcutta High Court
Tapati Sengupta vs Smt. Manashi Sengupta Bhadra on 11 November, 2025
IN THE HIGH COURT AT CALCUTTA
(Testamentary & Intestate Jurisdiction)
ORIGINAL SIDE
Present:
The Hon'ble Justice Krishna Rao
TS No. 4 of 2022
(PLA No. 309 of 2012)
In The Goods Of :
Ajit Kumar Sengupta, (Deceased)
-And-
Tapati Sengupta
-Vs-
Smt. Manashi Sengupta Bhadra
Mr. Suparna Mukherjee, Sr. Adv.
Mr. Sarbajit Mukherjee
Mr. Abhijit Sarkar
Ms. Abhipriya Sarkar
.... For the plaintiff.
Mr. Kallol Guha Thakurta
Mr. Vinod Kumar Singh
Mr. Barun Ghosh
Md. Wasim Rahaman
Mr. Dipankar Dutta
2
Mr. Saurav Mitra
Mr. Rajesh Nath Goswami
...For the defendant.
Hearing Concluded On : 22.09.2025
Judgment on : 11.11.2025
Krishna Rao, J.: -
1. The plaintiff, namely, Tapati Sengupta, W/o Late Ajit Kumar Sengupta
has initially filed an application being P.L.A. No. 309 of 2012 praying
for grant of probate of the Last Will and Testament of the deceased Ajit
Kumar Sengupta dated 29th February, 2008. On receipt of citation,
Snehajit Sengupta being the son of the testator had filed caveat and
affidavit-in-support of the caveat. On receipt of caveat, the probate
application being P.L.A. No. 309 of 2012 is converted to Testamentary
Suit No. 4 of 2022. During the pendency of the suit, Snehajit Sengupta
passed away. Upon his death, his wife Smt. Manashi Sengupta Bhadra
was substituted as defendant.
2. As per the case of the plaintiff, Ajit Kumar Sengupta executed his last
Will and Testament on 29th February, 2008 by appointing his wife
Tapati Sengupta and his daughter Amgana Sengupta as joint
executrixes of his last Will. The testator died on 22nd September, 2011
at Bridgeport Hospital, Bridgeport, Fairfield, United States of America
leaving behind his wife, Smt. Tapati Sengupta, his son Snehajit
Sengupta and his daughter Amgana Sengupta. The daughter has
affirmed an affidavit by giving her consent for grant of probate of the
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last Will and Testament of the deceased in favour of her mother. The
son has not given consent but has filed caveat and affidavit in support
of caveat objecting for grant of probate.
3. As per the case of the original defendant, he was the only son of the
testator of his first wife. The testator was the Judge of this Court as
well as the Allahabad High Court. The mother of the original defendant
died intestate at the University College Hospital, London, United
Kingdom on the date of his birth. After the death of his mother, his
father remarried to the plaintiff herein and in their wedlock, his sister
Amgana was born. The death of the testator was never communicated
to the defendant either by the plaintiff or her daughter.
4. Mr. Kallol Guha Thakurta, Learned Advocate representing the
defendant submits that the defendant came to know about the death of
his father through the advertisement/ obituary published in the News
Paper, namely, Ananda Bazar Patrika, Siliguri Edition, dated 14th
October, 2011, due to which the defendant could not perform the last
ritual rites and customs of his father.
5. Mr. Thakurta submits that the alleged Will is vague, untrue, false,
forged and fabricated from its very first line to its very last line. The
signatures, as well as the initials, are also false and forged. The alleged
Will in question also does not include the details of other various
properties owned by the deceased. He submits that the manner of
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language in which the so called Will has been drawn up, cannot be that
of the eminent retired High Court Judge.
6. Mr. Thakurta submits that the purported Will is motivated, malafide,
manufactured, purported and concocted one. He submits that the
defendant is a Tea-Planter by profession and Tea Garden situated at
Jalpaiguri due to which he has no other option but to stay-away from
Calcutta. He submits that the testator was an aged person, suffering
from various ailments and senility and was not in a sound mind and
body and was fully dependent upon his wife. Due to his prolonged
absence form Calcutta, the plaintiff got an opportunity to contrive
against the defendant and fulfill their sweet desire by putting undue
influence, pressure and coercion upon the testator.
7. Mr. Thakurta submits that no probate should be granted on the basis
of the alleged Will and the property left behind by the testator should be
divided and distributed in accordance with the Hindu Succession Act,
1956.
8. On completion of argument, the Learned Counsel for the defendant has
filed written notes of argument. After completion of argument and filing
written notes of argument, the defendant has filed an application being
G.A. No. 9 of 2025 praying for obtaining Handwriting Expert report
from the Central Forensic Science Laboratory with regard to the
signatures of the testator appearing in the alleged Will. In support of
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his submissions for obtaining Handwriting Expert report, the defendant
has relied upon the judgment in the case of Rama Avatar Soni Vs.
Mahanta Laxmidhar Das and Others reported in (2019) 11 SCC
415.
9. Mrs. Suparna Mukherjee, Learned Senior Advocate representing the
plaintiff submits that the testator during his life time bequeathed the
properties both movable, immovable and personal articles to the
plaintiff as his wife for her life time and after the death of the plaintiff to
his daughter. She submits that the testator in his last Will and
Testament declared that he had no relation with his son for the last 15
years and his son Snehajit Sengupta shall not be entitled to inherit any
share in the property of the deceased.
10. Mrs. Mukherjee submits that the plaintiff has proved the last Will and
Testament by examining the two attesting witnesses and the witness
who drafted the Will and was kept the Will in his possession as per the
advice of the testator. She submits that the attesting witnesses of the
Will during their examination have categorically stated that the testator
has executed his last Will and Testament in their presence.
11. Mrs. Mukherjee submits that though in the affidavit-in-support of
caveat the defendant has taken the stand that the testator has not
executed the Will and the Will is forged one and signatures appearing in
the Will is not of the testator but during the cross-examination of the
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plaintiff's witnesses, the defendant has admitted that the signature
appearing in the Will is of the testator.
12. Mrs. Mukherjee submits that the plaintiff has complied with the
provisions of Section 63 of the India Succession Act, 1925 by examining
the two attesting witnesses and has proved the Will. She submits that
the defendant has not able to prove that the Will is a forged document
and not signed by the testator. It is the specific case of the plaintiff that
the testator has executed his last Will and Testament while possessing
good health and fit state of mind but on contrary the defendant has not
brought any evidence that the testator was not in a fit state of mind.
13. Mrs. Mukherjee submits that in one hand the defendant has made out
a case that the Will is a forged document and on the other hand, it is
stated that the plaintiff has procured Will by coercion. She submits that
in the month of January, 2012 itself the defendant had the knowledge
about the Will.
14. Mrs. Mukherjee submits that the defendant has cross-examined the
plaintiff's witnesses and the defendant herself examined as D.W.1 and
the plaintiff has cross-examined the defendant. The defendant has
argued the matter and filed written notes of argument and
subsequently, he has filed an application for obtaining Handwriting
Expert report which is not maintainable. She further submits that from
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the trend of cross examination of the plaintiff's witness it is proved that
the defendant has admitted the signature of the testator in the Will.
15. Mrs. Mukherjee in support of her case, she has relied upon the
following judgments:
(i) Madhukar D. Shende Vs. Tarabai Aba
Shedage reported in (2002) 2 SCC 85.
(ii) Sridevi and Others Vs. Jayaraja Shetty
and Others reported in ( 2005) 2 SCC 784.
(iii) Bagai Construction through its proprietor
Lalit Bagai Vs. Gupta Building Material
Store reported in (2013) 14 SCC 1.
16. To prove the Will, the plaintiff has examined four witnesses, namely:
(i) Mrs. Tapati Sengupta .... Executrix
(ii). Mr. Gautam Kumar Mitra ... Attesting Witness of the Will
(iii) Mr. Surendra Deo Dube ... Attesting Witness of the Will
(iv) Mr. U.S. Menon, Drafted the Will and Kept the Will in his
possession as per the instructions of the Testator.
17. At the time of examination of the plaintiff and his witnesses, eight (8)
documents were exhibited, namely :
Exhibit-A: Signature of Amgana Sengupta in the
affidavit of Amgana Sengupta.
Exhibit-B (Collectively): Signatures and initials of
Ajit Kumar Sengupta in the Will.
Exhibit-C: Will.
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Exhibit-D: Signature of Gautam Kumar Mitra on
the declaration.
Exhibit-E: Signatures of Ajit Kumar Sengupta at the
last page of the Will.
Exhibits- E/1 & E/2: Initials of Ajit Kumar
Sengupta at page nos. 1 and 2 of the Will.
Exhibit-F: Signature of Surendra Deo Dube
appearing at the last page of the Will (Attested by
him).
Exhibit-G: Signature of Gautam Kr. Mitra appearing
at the last page of the Will (Attested by him).
Exhibit-H: Affidavit of Surendra Deo Dube dated
10th October, 2012.
Exhibit-H/1: Signature of Surendra Deo Dube at
page no. 2 in the affidavit dated 10th October, 2012.
18. The defendant has examined herself as D.W.1 and during her evidence,
five (5) documents were exhibited which are as follows:
Exhibit-I: Letter issued by the Learned Advocate of
the defendant to the plaintiff dated 10th January,
2012.
Exhibit-J: Reply to the letter dated 10th January,
2012 issued by Mr. U.S. Menon to the Learned
Advocate for the defendant dated 24th January,
2012.
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Exhibit-K: Letter issued by the Learned Advocate of
Mr. U.S. Menon dated 10th February, 2012.
Exhibit-L: Reply of Mr. U.S. Menon to the Learned
Advocate of the defendant dated 18th February,
2012.
Exhibit - M (Collectively): Communications
between Mr. U.S. Menon and Learned Advocate for
the defendant between 17th February, 2012 to 13th
August, 2012.
19. During cross-examination of the executrix, the Counsel for the
defendant in question nos. 76, 77, 125, 163 and 166 has put the
following questions:
"Q. 76. (Shown front page and third page of the
Will) - you will find there are two handwritten
dates - is there any initial by Justice Sengupta
against these handwritings?
Ans. Yes, initials are there
Q.77. (Shown page 1 and page 3) Besides the line
in which this handwritten date surfaced, is there
any initial of Justice Sengupta?
Ans. No. But there is an initial at the bottom of the
entire page.
Q. 125. (Shown the Will once again) - In these
three pages of the Will save and except the last
page i.e. in the first two pages, Justice Sengupta
had put his initials at the bottom of the page. But I
am showing you the certified copy of the Sale Deed
(shown) - where in case of correction Justice
Sengupta has put his full signature - what do you
say to that in this respect (object to by Learned
Counsel Suparna Mukherjee, as this question is
repeated and the witness had to wait near about
10
15 minutes and after that a repetitive question is
put to the witness which was put vide Q. 82 to Q.
84) (Mr. Guha Thakurta objected to such objection)?
Ans. I don't know what he would do. That is up to
Justice Sengupta.
Q. 163. (Shown the Will once again the signature
of Justice Ajit Sengupta) - are you hundred per cent
sure that this is the very signature of Justice Ajit
Sengupta? (objected to by Learned Counsel
Suparna Mukherjee on the ground that the question
is repeated.
Ans. Yes, it is Justice Sengupta's signature.
Q. 166. You have just deposed that all these
signatures are of Justice Ajit Sengupta and all
these signatures are tallying with each other - but
in none of the occasions you are present at the
venue when Justice Sengupta was putting his
signatures in this document - is it correct?
Ans. Yes, that is so."
20. From the trend of cross-examination of the witness no.1 of the plaintiff,
it is find that the defendant has admitted the signature of the testator.
The defendant has not put any question to the genuinety of the
signatures and the initials of the testator.
21. At the time of examination of attesting witness, namely, Gautam Kumar
Mitra his signature in the Will is marked as Exhibit-D and Exhibit-G,
Signatures of Ajit Kumar Sengupta are marked as Exhibit-E and initials
of Ajit Kumar Sengupta are marked as Exhibits- E-1 and E-2.
Signature of another attesting witness, namely, Surendra Deo Dube is
marked as Exhibit-F. Mr. Gautam Kumar Mitra during his evidence
stated that Justice Ajit Kumar Sengupta signed his Will in his presence
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and in presence of another attesting witness, namely, Surendra Deo
Dube. He has also stated that in the last page of the Will, the testator
has signed as his full signature and first and second page, the testator
has made initials as AKS. At the time of cross-examination of Gautam
Kumar Mitra, the following questions were put to the witness:
"33. (Shown page 3 of Ext. E)- According to
you this is the signature of Justice Ajit Kumar
Sengupta and he has put his signature in front of
you? /Yes.
34. (Shown two pages of the Will i.e. page 1
and page 2) - whether the initials of Justice Ajit
Kumar Sengupta were there? /Yes, you are correct.
35. (Shown Ext. E1 & E2) - these two initials
have also been signed by Justice Ajit Kumar
Sengupta? / Yes, this was in my presence."
22. Mr. Surendra Deo Dube being another attesting witness stated that the
testator has called him to the residence to sign in the Will as attesting
witness and on 29th February, 2008, he had been to the residence of
the testator and in his presence and in presence of another attesting
witness, namely, Gautam Kumar Mitra, the testator has signed his Will.
He identified the Will and signatures appearing in the last page i.e.
page no.3 as signature of testator, signature of Gautam Kumar Mitra
and his signature. He also stated that in other two pages of the Will i.e.
page no.1 and page no.2, the testator has put his initials in his
presence and in presence of another attesting witness.
23. Learned Counsel for the defendant during cross-examination of
Surendra Deo Dube, the following questions was put to the witness:
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"55. On the request of Justice Sengupta you
have visited his place to put your signature as an
attesting witness - Is it correct? /Yes."
24. Mr. U.S. Menon, being P.W.4 stated that when he has attended the
conference with Justice Ajit Kumar Sengupta, he requested him to draft
a Will and as per instructions of Justice Ajit Kumar Sengupta, he has
drafted the Will and thereafter Justice Ajit Sengupta corrected the Will.
He then kept ready the Will sometimes in the year 2007 or 2008. The
testator kept the Will with him for some time and in the month of
February or March 2008, he told that he has signed the Will in
presence of attesting witnesses and requested to keep the Will in safe
custody and also told to him to give the said Will to his wife after his
demise and accordingly, he kept the Will in his locker or almirah at his
home. He further stated that after the death of Justice Ajit Sengupta,
he has informed his wife.
25. Learned Counsel for the defendant has not denied that the testator has
not given any instructions to the said witness or he has not drafted the
said Will or has kept the Will with him as per instructions of the
testator.
26. The defendant has examined herself as witness. During her evidence,
the defendant has not brought any evidence to prove that the Will relied
by the plaintiff is forged one. The defendant has also not adduced any
evidence to say that the testator was not possessing good health or was
not in fit state of mind. From the evidence of defendant, it is clear that
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the defendant was not residing with the testator. The case which the
defendant has made out in her examination-in chief was not the case in
the written statement (caveat and affidavit in support of caveat). In her
examination-in-chief, the defendant has made out a new case.
27. Section 63 of the Indian Succession Act, 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 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."
28. Section 63(c) of the Indian Succession Act, 1925 outlines the
requirements for the valid execution of a Will. Specifically it mandates
14
that, the Will must be signed by the testator in presence of at least two
attesting witnesses. The witnesses must attest the Will in presence of
the testator, confirming they saw the testator sign or acknowledge the
signature. The attestation must be performed by at least two witnesses
who are present at the time of signing of the testator. The Will must be
signed by the witnesses with the intent to attest to the testator's
signature and intent to create the Will.
29. The propounder of the Will has to prove that (i) the Will was signed by
the testator in the presence of two attesting witnesses, (ii) The attesting
witnesses should have been seen the testator sign the Will or else, the
attesting witnesses should depose that they were been told by the
testator that the Will is that of the testator and it is the testator who
has signed the Will and (iii) It is not necessary that both or all the
attesting witnesses of the Will must be examined to prove the Will,
rather, at least one attesting witness should be called to prove the due
execution of the Will.
30. Section 68 of the Indian Evidence Act, 1972, necessitates that a
document which is required by law to be attested shall not be used as
evidence, until and unless, at least one attesting witness to that
document has been called in evidence for the purpose of proving its
execution. Thus, according to mandate of Section 68 of the Indian
Evidence Act, 1972, if there be an attesting witness to a document,
alive and capable of giving evidence, then that attesting witness subject
15
to the process of the Court has to be necessarily examined before the
document required by law to be attested can be used as evidence.
31. On combined reading of Section 63 of the Indian Succession Act, 1925
and Section 68 of the Indian Evidence Act, 1972, it is clear that a
person propounding the Will must prove that the Will was duly and
validly executed, and this cannot be done by simply proving that the
signature on the Will is that of the testator by also proving that the
attestations made on the Will are in the manner as required by clause
(c) of Section 63 of the Indian Succession Act, 1925.
32. Whether a particular Will is surrounded by suspicious circumstances
or not is a question of fact and it depends upon the facts and
circumstances, the propounder has to explain these circumstances and
has to remove the suspicion in order to satisfy the conscience of the
Court. "A shaky signature, a feeble mind, an unfair and unjust
disposition of property, the propounder himself taking a leading part in
the making of the Will under which he receives substantial benefits and
interlineations, obliterations and alterations in the Will, are all in the
nature of circumstances which hoist suspicion about the execution of the
Will".
Such suspicions cannot be removed by mere assertion of the
propounder that the Will bears the signature of the testator or that the
testator was in sound mind and disposing state of mind when the Will
was made, or that those like the wife and children of the testator who
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would normally receive their due share in his estate were disinherited
because the testator might have had, his own reasons for excluding
them. The presence of suspicious circumstances makes the initial onus
of proof heavier on the propounder of the Will and thus in cases where
the circumstances attended upon the execution of the Will, excite the
suspicion of the Court, the propounder must remove all the legitimate
suspicion before the document can be accepted as the last Will of the
testator.
33. In the case of Sridevi and Others (Supra), the Hon'ble Supreme Court
held that :
"11. It is well settled proposition of law that
mode of proving the Will does not differ from that of
proving any other document except as to the special
requirement of attestation prescribed in the case of
a Will by Section 63 of the Indian Succession Act,
1925. The onus to prove the Will is on the
propounder and in the absence of suspicious
circumstances surrounding the execution of the
Will, proof of testamentary capacity and proof of
the signature of the testator, as required by law,
need be sufficient to discharge the onus. Where
there are suspicious circumstances, the onus would
again be on the propounder to explain them to the
satisfaction of the court before the Will can be
accepted as genuine. Proof in either case cannot be
mathematically precise and certain and should be
one of satisfaction of a prudent mind in such
matters. In case the person contesting the Will
alleges undue influence, fraud or coercion, the onus
will be on him to prove the same. As to what are
suspicious circumstances has to be judged in the
facts and circumstances of each particular case.
(For this see H. Venkatachala Iyengar v. B.N.
Thimmajamma and the subsequent judgments
Ramchandra Rambux v. Champabai, Surendra Pal
v. Dr. Saraswati Arora, Jaswant Kaur v. Amrit
Kaur and Meenakshiammal v. Chandrasekaran.)
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12. In the light of this settled position of the
law, we have to examine as to whether the Will
under consideration had been duly executed and
the propounders of the Will had dispelled the
suspicious circumstances surrounding the Will.
14. The propounder of the Will has to show
that the Will was signed by the testator; that he
was at the relevant time in sound disposing state
of mind; that he understood the nature and effect of
dispositions and had put his signatures to the
testament of his own free will and that he had
signed it in the presence of the two witnesses who
attested in his presence and in the presence of
each other. Once these elements are established,
the onus which rests on the propounder is
discharged. DW 2, the scribe, in his testimony has
categorically stated that the Will was scribed by
him at the dictation of the testator. The two
attesting witnesses have deposed that the testator
had signed the Will in their presence while in
sound disposing state of mind after understanding
the nature and effect of dispositions made by him.
That he signed the Will in their presence and they
had signed the Will in his presence and in the
presence of each other. In cross-examination, the
appellants failed to elicit anything which could
persuade us to disbelieve their testimony. It has
not been shown that they were in any way
interested in the propounders of the Will or that on
their asking they could have deposed falsely in
court. Their testimony inspires confidence. The
testimony of the scribe (DW 2) and the two attesting
witnesses (DWs 3 and 4) is fully corroborated by
the statement of the handwriting expert (DW 5). The
Will runs into 6 pages. The testator had signed
each of the 6 pages. The handwriting expert
compared the signatures of the testator with his
admitted signatures. He has opined that the
signatures on the Will are that of the testator. In
our view, the Will had been duly executed."
34. In the Case of Madhukar D. Shende (supra), the Hon'ble Supreme
Court held that:
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"8. The requirement of proof of a will is the
same as any other document excepting that the
evidence tendered in proof of a will should
additionally satisfy the requirement of Section 63 of
the Indian Succession Act, 1925 and Section 68 of
the Indian Evidence Act, 1872. If after considering
the matters before it, that is, the facts and
circumstances as emanating from the material
available on record of a given case, the court either
believes that the will was duly executed by the
testator or considers the existence of such fact so
probable that any prudent person ought, under the
circumstances of that particular case, to act upon
the supposition that the will was duly executed by
the testator, then the factum of execution of will
shall be said to have been proved. The delicate
structure of proof framed by a judicially trained
mind cannot stand on weak foundation nor survive
any inherent defects therein but at the same time
ought not to be permitted to be demolished by
wayward pelting of stones of suspicion and
supposition by wayfarers and waylayers. What
was told by Baron Alderson to the jury
in R. v. Hodge may be apposite to some extent:
"The mind was apt to take a pleasure in
adapting circumstances to one another and
even in straining them a little, if need be, to
force them to form parts of one connected
whole, and the more ingenuous the mind of
the individual, the more likely was it,
considering such matters, to overreach and
mislead itself, to supply some little link that is
wanting, to take for granted some fact
consistent with its previous theories and
necessary to render them complete."
The conscience of the court has to be satisfied
by the propounder of will adducing evidence so as
to dispel any suspicions or unnatural
circumstances attaching to a will provided that
there is something unnatural or suspicious about
the will. The law of evidence does not permit
conjecture or suspicion having the place of legal
proof nor permit them to demolish a fact otherwise
proved by legal and convincing evidence. Well-
founded suspicion may be a ground for closer
scrutiny of evidence but suspicion alone cannot
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form the foundation of a judicial verdict -- positive
or negative.
9. It is well settled that one who propounds a
will must establish the competence of the testator
to make the will at the time when it was executed.
The onus is discharged by the propounder
adducing prima facie evidence proving the
competence of the testator and execution of the will
in the manner contemplated by law. The contestant
opposing the will may bring material on record
meeting such prima facie case in which event the
onus would shift back on the propounder to satisfy
the court affirmatively that the testator did know
well the contents of the will and in sound disposing
capacity executed the same. The factors, such as
the will being a natural one or being registered or
executed in such circumstances and ambience, as
would leave no room for suspicion, assume
significance. If there is nothing unnatural about the
transaction and the evidence adduced satisfies the
requirement of proving a will, the court would not
return a finding of "not proved" merely on account
of certain assumed suspicion or supposition. Who
are the persons propounding and supporting a will
as against the person disputing the will and the
pleadings of the parties would be relevant and of
significance."
35. In the present case, the plaintiff's witnesses no.2 and 3, namely,
Gautam Kumar Mitra and Surendra Deo Dube being the attesting
witnesses of the Will of the testator have categorically stated in their
evidence that as per the request of the testator, they had been to the
residence of the testator on 29th February, 2008 and in their presence,
the testator has signed the Will and as per request of the testator, the
witnesses have signed in the Will as attesting witnesses in presence of
the testator.
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36. The another circumstances to prove the Will is the evidence of the
plaintiff's witness no.4, namely, Mr. U.S. Menon who as per
instructions of the testator has drafted the Will and the testator after
finalizing the Will and after execution of the Will has handed over to the
said witness with the instruction to hand over the same to wife of the
testator after his demise.
37. The defendant though in his written statement/ affidavit in support of
caveat has taken the stand that the Will is vague, untrue, false, forged
and fabricated one but the defendant has failed to prove that the Will is
false and forged. The defendant even has not given any suggestion that
the testator or the attesting witnesses have not signed the Will on the
other hand during the cross-examination the defendant admitted the
Will, signatures of the testator and signatures of the attesting
witnesses.
38. At the flag end, i.e. after completion of argument and even after filing of
written notes of argument by the defendant, the defendant has filed an
application being G.A. No. 9 of 2025 praying for forwarding the Will and
admitted signatures of the testator for obtaining Handwriting Expert
report. In support of his contention, has relied upon the judgment in
the case of Rama Avatar Soni (supra) wherein the Hon'ble Supreme
Court held that:
"8. As pointed out earlier, the appellant has
filed the suit CS No. 2/34 of 2008/2003
challenging the genuineness of alleged Will
executed by Natabar Das in favour of the first
21
respondent and seeking revocation of the probate
of the will. As submitted by the learned Senior
Counsel appearing for the appellant, in the said
suit, Issue No. 3 has been framed that "Has the
Defendant no. 1 by practising fraud managed to
get the Will probated, which was a fabricated and
manufactured one?" Hence, the genuineness of the
Will in question needs to be decided, that is,
whether the signature in the Will dated 12-3-1989
allegedly executed by Natabar Das could be
ascertained only by sending the document to
handwriting expert. As discussed above, earlier in
WP(C) No. 14997 of 2013, while setting aside the
order of the District Judge dated 18-6-2013, the
High Court has observed that the application filed
under Order 26, Rule 10A CPC can be considered
at a later stage of the proceedings, that is, after
closure of the evidence from both sides. After their
witnesses were examined, the appellant/plaintiff
again reiterated the prayer for sending the Will in
question to hand-writing expert. If the scientific
investigation of the document in question facilitates
the ascertaining of truth, in the interest of justice,
naturally it has to be ordered. Having regard to the
issue raised in the suit, the District Judge was right
in allowing the application to send the Will in
question dated 12-3-1989 to the hand-writing
expert.
9. The High Court was not right in saying that,
in the plaint, the appellant has challenged only the
genuineness of the will and nowhere made
allegations with regard to the genuineness of the
signature of Mahanta Natabar Das. To challenge
the genuineness of the will inter alia indicates
challenge to the genuineness of the signature of
Mahanta Natabar Das. In our view, the High Court
was not right in saying that there was no specific
allegation disputing the genuineness of the
signature of Mahanta Natabar Das. In the earlier
WP (C) No. 14977 of 2013 when the High Court has
observed that the prayer under Order 26 Rule, 10A
CPC can be considered at a later stage, the High
Court was not right in setting aside the order of the
District Judge dated 15-3-2016 in CS No. 2/34 of
2008/2003 and the impugned order is liable to be
set aside."
39. The plaintiff has objected the application filed by the defendant had
submitted that the defendant has filed the application after the
argument has concluded. The defendant has not taken any steps at the
evidence stage. She submits that the defendant has filed the present
application only to drag the matter. The plaintiff has relied upon the
judgment in the case of Bagai Construction (supra) wherein the
Hon'ble Supreme Court held that:
"11. In Velusamy even after considering the
principles laid down in Vadiraj Naggappa
Vernekar and taking note of Section 151 CPC, this
Court concluded that :
"22. ... in the interests of justice and to
prevent abuse of the process of the court, the
trial court [is free to consider] whether it was
necessary to reopen the evidence and if so, in
what manner and to what extent...."
12. Further, it observed that the evidence
should be permitted in exercise of its power under
Section 151 of the Code. The following principles
laid down in that case are relevant:
"19. We may add a word of caution. The
power under Section 151 or Order 18 Rule 17
of the Code is not intended to be used
routinely, merely for the asking. If so used, it
will defeat the very purpose of various
amendments to the Code to expedite trials.
But where the application is found to be bona
fide and where the additional evidence, oral or
documentary, will assist the court to clarify
the evidence on the issues and will assist in
rendering justice, and the court is satisfied
that non-production earlier was for valid and
sufficient reasons, the court may exercise its
discretion to recall the witnesses or permit the
fresh evidence. But if it does so, it should
ensure that the process does not become a
protracting tactic. The court should firstly
award appropriate costs to the other party to
compensate for the delay. Secondly, the court
should take up and complete the case within a
fixed time schedule so that the delay is
avoided. Thirdly, if the application is found to
be mischievous, or frivolous, or to cover up
negligence or lacunae, it should be rejected
with heavy costs."
14. The perusal of the materials placed by the
plaintiff which are intended to be marked as bills
have already been mentioned by the plaintiff in its
statement of account but the original bills have not
been placed on record by the plaintiff till the date of
filing of such application. It is further seen that
during the entire trial, those documents have
remained in exclusive possession of the plaintiff but
for the reasons known to it, still the plaintiff has
not placed these bills on record. In such
circumstance, as rightly observed by the trial court
at this belated stage and that too after the
conclusion of the evidence and final arguments and
after reserving the matter for pronouncement of the
judgment, we are of the view that the plaintiff
cannot be permitted to file such applications to fill
the lacunae in its pleadings and evidence led by
him. As rightly observed by the trial court, there is
no acceptable reason or cause which has been
shown by the plaintiff as to why these documents
were not placed on record by the plaintiff during
the entire trial. Unfortunately, the High Court
taking note of the words "at any stage" occurring in
Order 18 Rule 17 casually set aside the order of
the trial court, allowed those applications and
permitted the plaintiff to place on record certain
bills and also granted permission to recall PW 1 to
prove those bills. Though power under Section 151
can be exercised if ends of justice so warrant and
to prevent abuse of process of court and court can
exercise its discretion to permit reopening of
evidence or recalling of witness for further
examination/cross-examination after evidence led
by the parties, in the light of the information as
shown in the order of the trial court, namely, those
documents were very well available throughout the
trial, we are of the view that even by exercise of
Section 151 CPC, the plaintiff cannot be permitted.
15. After change of various provisions by way
of amendment in CPC, it is desirable that the
recording of evidence should be continuous and
followed by arguments and decision thereon within
a reasonable time. This Court has repeatedly held
that courts should constantly endeavour to follow
such a time schedule. If the same is not followed,
the purpose of amending several provisions in the
Code would get defeated. In fact, applications for
adjournments, reopening and recalling are interim
measures, could be as far as possible avoided and
only in compelling and acceptable reasons, those
applications are to be considered. We are satisfied
that the plaintiff has filed those two applications
before the trial court in order to overcome the
lacunae in the plaint, pleadings and evidence. It is
not the case of the plaintiff that it was not given
adequate opportunity. In fact, the materials placed
show that the plaintiff has filed both the
applications after more than sufficient opportunity
had been granted to it to prove its case. During the
entire trial, those documents have remained in
exclusive possession of the plaintiff, still the
plaintiff has not placed those bills on record. It
further shows that final arguments were heard on
a number of times and the judgment was reserved
and only thereafter, in order to improve its case,
the plaintiff came forward with such an application
to avoid the final judgment against it. Such course
is not permissible even with the aid of Section 151
CPC."
40. The facts of the case relied by the defendant are distinguishable from
the facts and circumstances of the present case. In the present case,
though the defendant has taken the stand in the written statement/
affidavit in support of caveat that the Will is false and forged one but till
the argument is over, the defendant has not made any endeavor for
sending the Will to Handwriting Expert for obtaining report. The
attesting witnesses of the Will have categorically stated that the testator
has signed the Will in their presence and the witnesses have also
signed the Will in presence of the testator. The defendant has
categorically put the question with regard to the signature of the
testator and the witnesses have stated that in the last page, the testator
has signed the Will as full signature and in page no.1 and page no.2,
the testator has put his initial as 'AKS'.
41. Considering the above, this Court finds that the application filed by the
defendant being G.A. No. 9 of 2025 is misconceived and accordingly,
the same is rejected.
42. This Court finds that the plaintiff has proved the last Will and
testament of the testator dated 29th February, 2008 and is entitled to
get probate of the Will. The department is directed to issue probate of
the Will dated 29th February, 2008 of the testator to the plaintiff on
compliance of all formalities. At the time of grant of probate, the copy of
the Will be made part of the probate. Decree be drawn accordingly.
43. T.S. No. 4 of 2022 is disposed of.
(Krishna Rao, J.)
