Calcutta High Court
For The vs A.Y. Derderian (Air 1961 Cal 359) on 1 September, 2025
Author: Sugato Majumdar
Bench: Sugato Majumdar
IN THE HIGH COURT AT CALCUTTA
TESTAMENTARY AND INTESTATE JURISDICTION
ORIGINAL SIDE
Present:
The Hon'ble Justice Sugato Majumdar
TS/15/2015
IN THE GOODS OF: SITA DEVI BAZAZ (DEC)
For the Plaintiff : Mr. Rupak Ghosh, Adv.
Mr. Ayan Datta, Adv.
Mr. Pradip Kr. Sarawagi, Adv.
For the Defendant : Mr. Sarosij Dasgupta, Adv.
Ms. Afreen Begum, Adv.
Hearing concluded on : 26/08/2025
Judgment on : 01/09/2025
Sugato Majumdar, J.:
The instant suit is for grant of probate of the last will and testament of
the deceased Sita Devi Bazaz.
The deceased Sita Devi Bazaz was a Hindu who had her last abode at
378, Block-G, New Alipore, Kolkata-700053. She breathed her last on 20th
January, 2013 at her place of residence. Prior to her death, she executed
her last will and testament on 8th December, 2005 in English language. The
will was duly registered. The Testatrix left behind her son and daughter.
The present Petitioner being Executor, is the grandson of the Testatrix.
On death of the Testatrix, the instant application was filed, praying for
grant of probate of the last will and testament of the Testatrix.
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General and special citations were issued to the son and daughter of
the Testatrix. The daughter of the Testatrix Smt. Rani Goenka lodged caveat
as well as affidavit of support of caveat. The caveat was allowed and the
affidavit was treated as written statement.
The contents of the written statement may be summarized as follow:
a) It was contended that the will is unnatural, improbable and
unfair, inasmuch as all the heirs and heiresses of the
deceased are not included. The Defendant is the only
daughter of the Testatrix and she had high respect for and
faith on her mother. Relationship between herself and the
Testatrix was very cordial. She used to visit her mother's
home very frequently till death. At no point of time the
Testatrix or the brother of the present Defendant or any of
his family members informed or disclosed to the Defendant
that the instant will had been executed by the Testatrix. The
Defendant has no curiosity about the properties which had
been acquired by the Testatrix during her life time. 10 to 12
years prior to her death, at the age of 82, the Testatrix had
been suffering from amnesia. Before her death, she used to
tell the Defendant that all her properties including jewelleris
would be divided between the Defendant and her brother,
being the son of the Testatrix. The ornaments of the
Testatrix are not disclosed in the affidavit of assets.
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b) According to the Defendant, the Executor of the will is the
grandson of the Testatrix. In the circumstances, it raises a
reasonable doubt about genuineness of the will and gave rise
to a suspicious circumstance surrounding execution of the
will. The Executor is in ploy to grab the entire properties of
the Testatrix, as alleged. The alleged will was prepared
under suspicious circumstances.
c) The alleged will was not properly executed, according to the
Defendant. Bimal Kumar Bazaz who was the biological son
of the Testatrix was subsequently adopted by the brother-in-
law of the Testatrix. It is alleged that will was procured
under coercion or undue influence and by exercise of force;
all these were done by Rajkumar Bazaz, his son Atul Kumar
Bazaz, Bimal Kumar Bazaz and other family members of
Rajkumar Bazaz.
d) Both the attesting witnesses are dead. Bimal Kumar Bazaz
filed a declaration and affidavit before this Court. The
propounder also admitted that he along with Bimal Kumar
Bazaz were present at the time of execution of the will. It is
contended in the written statement that the Testatrix was a
house wife and Pardanasin lady who could not have made or
executed any document including any will of her own. When
the will was executed she was about 80 years. From the
execution to attestation of the alleged will of the deceased, as
pleaded, it is crystal clear that the will was never made and
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executed under the instruction of the Tetatrix. Brother Atul
Bazaz, Rajkumar Bazaz and Bimal Kumar Bazaz had forced
the deceased to execute the will. They had sole intention to
deprive the Defendant from her mother's property. It was
reiterated that will was got executed under undue influence
and force; the Testatrix did not have any free mind; the
propounder and other family members took advantage of the
old age and physical ailment of the deceased and induced
her to make the will.
e) According to the Defendant, the will was unnatural and
fictitious; probate should not be granted to the will.
On the basis of rival pleadings, following issues were recast:
1. Whether the instant Will is the last Will and Testament of the
Testatrix?
2. Whether the Testatrix was physically fit and mentally alert at
the time of execution of the Will?
3. Whether the Will was duly executed by the Testatrix?
4. Whether the execution of the Will is surrounded by any
suspicious circumstances?
5. Whether the Will was procured by coercion or undue influence
or fraud or ingenuine?
6. Whether the instant Will was genuine or not?
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7. Whether the petitioner is entitled to probate of the Will as
prayed for?
Both the parties adduced evidence.
Issue No. 1, 2, 3, 4, 5, 6 & 7:
All the issues are taken up together.
The Learned Counsel for the Plaintiff Mr. Ghosh firstly argued that the
attesting witnesses are all dead. Death certificates of the attesting witnesses
are Ext. C & H. Therefore, the execution of the will is proved by attending
witness who was present at the time of execution of the will. The attending
witness is none other than the wife of the present Executor. The attending
witness stated that Advocate G.P. Sharma who had prepared the will under
instructions of the deceased/Testatrix had also passed away. The attending
was cross-examined extensively without any yielding any discrepancy.
Therefore, according to Mr. Ghosh, due execution of the will is proved.
Secondly, it was argued by Mr. Ghosh that Ext. E is the affidavit of
consent affirmed by the Caveatrix which was duly notarized on 08/09/2006.
Ext. E contains statement of the Caveatrix that her mother, the Testatrix
duly executed the will. There was no cross-examination challenging this
Ext. E.
Thirdly, it was argued by Mr. Ghosh that affidavit of consents of Bimal
Kumar Bazaz and Rajkumar Bazaz are on record. There was no cross-
examination either to PW 1 or PW 2 on affidavit of consent. Relying upon
A.E. G. Carapiet Vs. A.Y. Derderian (AIR 1961 Cal 359), Mr. Ghosh
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submitted that the consent of Bimal Kumar Bazaz and Rajkumar Bazaz as
well as Rani Goyenka stood unchallenged and hence admitted.
Fourthly, Mr. Ghosh argued that although it is alleged that the
Testatrix had been suffering from amnesia by the time she executed the will,
no evidence was produced on behalf of Caveatrix to support the contention.
In fact, PW 2 Miss. Archana Bazaz deposed that the Testatrix had been
suffering from old age related issues and nothing more. Therefore,
according to Mr. Ghosh, the allegation of amnesia is not proved.
Fifthly, it was argued that DW 1 had no personal knowledge and
deposed on the strength of a power of attorney. Therefore, the evidence can
be discarded.
Mr. Ghosh finally argued that burden of proof is of the Defendant to
prove suspicious circumstances, once such burden is discharged then only
it shifts to the Plaintiff. The Defendant failed to discharge this burden.
Moreover, registration of the will created presumption of genuineness and
due execution of the will which have not been rebutted or set at naught by
the Defendant. It is further submitted that burden of proof of the
allegations of undue influence, fraud and coercion are on the Caveatrix
which they failed to discharge. Mr. Ghosh relied upon H. Venkatachala
Iyengar Vs. B.N. Thimmajamma & Ors. (AIR 1959 SC 443); Rani
Purnima Debi & Anr. Vs. Kumar Khagendra Narayan Deb & Anr. (AIR
1962 SC 567); Madhukar D. Shende Vs. Tarabai Aba Shedage [(2002) 2
SCC 85] in support of his contention.
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Per contra, the Learned Counsel for the Caveatrix firstly submitted
that it is settled position of law that a party has to prove his own case even
in absence of any defence. In the present case, the Defendant, due to her
medical condition could not adduce evidence. Medical condition is an
admitted position and DW 1 proved the same in cross-examination. DW 1
further stated that he was personally aware of the contention of the
Defendant. Therefore, according to him, evidence is reliable and should be
treated as the evidence of the Defendant.
Secondly, it was argued that the Plaintiff's argument regarding
discharge of onus of proof is misplaced. The Plaintiff has deliberately
withheld the best evidence from the Hon'ble Court. Hence, adverse
presumption is bound to follow.
Thirdly, it was argued that the physical and mental condition of the
deceased/Testatrix is still a mystery. None of the witnesses claimed to have
any knowledge in medicine and their evidence in this context is, therefore,
unreliable. The onus of proof of medical condition of the deceased/Testatrix
was on the Plaintiff who failed to discharge the same.
Fourthly, it was argued that the issue of exclusion of the Caveatrix
from the alleged bequeath made in the will is not properly explained. Mere
reference to a custom within a family of the deceased cannot assist the case
of the Plaintiff. This created a very strong suspicious circumstance
surrounding the execution of the will.
Fifthly, it was argued the entire case of the Plaintiff was based on oral
evidence, namely, PW 2 whose name did not appear anywhere in the record.
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Her name was also admittedly missed out by her husband, PW 1 in the
original deposition. Such name was subsequently put into record. DW 1
did not include the name of PW 2 in his original answer since he knew the
PW 2 was not present at the time of execution of the will. There is no proof
that PW 1 was the attending witness. Therefore, due execution of the will is
not proved in terms of the Indian Evidence Act, 1872.
Finally it was argued that so far as Ext. E is concerned, no reliance
can be placed on that document, since the affidavit in support of caveat
overrules that affidavit. The affidavit in support of caveat explained the
circumstances and the contention of the Caveatrix. The contentions of the
Caveatrix, contained in affidavit in support of Caveat, should be taken to be
true.
It was then argued that ratio and observation in H. Venkatachala
Iyengar's case is not applicable in the instance case. It was submitted that
burden of proof of absence of suspicious circumstance always remained on
the propounder of the will. Since that burden of proof was not discharged.
Probate cannot be granted.
I have heard rival submissions.
The written statement that is the affidavit supporting the caveat
contained pleading to the extent that will was unnatural, improbable and
unfair; the genuineness of the will was challenged and among other it was
pleaded that will was executed under suspicious circumstances. However, it
is not challenged that the instant will is the last will and testament of the
Testatrix. PW 1, the Executor deposed to this extent that the instant will is
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the last will and testament. Therefore, it is established that this is the last
will and the testament of the Testatrix.
Attesting witnesses are dead for which execution of the will could not
be proved by any such witness. Instead of that PW 2 came to depose as
attending witness. She stated in examination-in-chief and reiterated in
course of cross-examination that she was present at the time of the
execution of the instant will. PW 2 stated that the attesting witnesses as
well as the Testatrix executed and signed the will in her presence and she
identified the signatures of the attesting witnesses as well as signature of
the Testatrix. Requirement of Section 68 is must in case of a will. A will is
to be proved in compliance with Section 68 of the Indian Evidence Act,
1872. One of the attesting witnesses must come before the Court to prove
due execution of the same by the testator or the testatrix. But there may be
situations when the attesting witnesses are dead or not formed. Section 69
of the Indian Evidence Act, 1872 provides a gateway in that situation.
Section 69 states:
"69. Proof where no attesting witness found.--If no such
attesting witness can be found, or if the document purports to have been
executed in the United Kingdom, it must be proved that the attestation
of one attesting witness at least is in his handwriting, and that the
signature of the person executing the documents is in the handwriting
of that person."
In Babu Singh v. Ram Sahai [(2008) 14 SCC 754] scope of section 69 of the
Indian Evidence Act was considered by the Supreme Court of India:
P a g e | 10
17. It would apply, inter alia, in a case where the attesting witness is either
dead or out of the jurisdiction of the court or kept out of the way by the
adverse party or cannot be traced despite diligent search. Only in that
event, the will may be proved in the manner indicated in Section 69 i.e. by
examining witnesses who were able to prove the handwriting of the
testator or executant. The burden of proof then may be shifted to others.
In V. Kalyanaswamy v. L. Bakthavatsalam [V. Kalyanaswamy v. L.
Bakthavatsalam, [(2021) 16 SCC 543] scope of section 68 and 69 of the Indian
Evidence Act was again considered and explained by the Supreme Court of India :
"117. Reverting back to Section 69 of the Evidence Act, we are of the view
that the requirement therein would be if the signature of the person
executing the document is proved to be in his handwriting, then
attestation of one attesting witness is to be proved to be in his
handwriting. In other words, in a case covered under Section 69 of the
Evidence Act, the requirement pertinent to Section 68 of the Evidence Act
that the attestation by both the witnesses is to be proved by examining at
least one attesting witness, is dispensed with. It may be that the proof
given by the attesting witness, within the meaning of Section 69 of the
Evidence Act, may contain evidence relating to the attestation by the
other attesting witness but that is not the same thing as stating it to be the
legal requirement under the Section to be that attestation by both the
witnesses is to be proved in a case covered by Section 69 of the Evidence
Act. In short, in a case covered under Section 69 of the Evidence Act, what
is to be proved as far as the attesting witness is concerned, is, that the
attestation of one of the attesting witness is in his handwriting. The
language of the Section is clear and unambiguous. Section 68 of the
Evidence Act, as interpreted by this Court, contemplates attestation of
P a g e | 11
both attesting witnesses to be proved. But that is not the requirement in
Section 69 of the Evidence Act."
In Ashutosh Samanta v. Ranjan Bala Dasi [(2023) 19 SCC 448], both
attesting witnesses had died. The two sons of the testator deposed about their
presence when the will was signed by him. They also identified the signatures of
Nivas Bhuiya, who drew and signed the will. In addition, one Phani Bhusan Bhuiya
(PW 4), son of Nivas Bhuiya, deposed. In his evidence he deposed to having been
present when the testator and the two attesting witnesses signed the will; he was able
to identify their signatures. Referring to previous decisions, it was observed that in
the event where attesting witnesses may have died, or cannot be found, the pro-
pounder is not helpless, as Section 69 of the Evidence Act, 1872 is applicable. In the
instant case, P.W.2 being the attending witness and close relative of the deceased was
present at the time of execution of the will and proved execution and attestation of
the will. Her evidence withstood cross examination. Therefore, testimony of P.W.2
can be accepted and relied upon to consider due execution of the will.
It is alleged in the written statement that Testatrix have been suffering
from amnesia at the time of execution of the will. Because of such amnesia,
she was misguided and was influenced to execute this will. In examination-
in-chief, both PW 1 and PW 2 stated that except issues related to old age,
the Testatrix was physical fit and mentally alert at the time of execution of
the will. This was confirmed in course of cross-examination by the
witnesses. Thus, by adducing oral evidence, confirmed in cross-
examination, burden of proof was discharged by the Plaintiff. Once they
discharged their burden of proof, it was shifted to the Defendant to disprove
the same.
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DW 1 is the constituted attorney of the Caveatrix. He had never seen
the Testatrix. He has no personal knowledge as to whether the Testatrix
had been suffering from amnesia. No medical document was produced. In
course of cross-examination, DW 1 admitted that he has no personal
knowledge on his health condition of the Testatrix. The shifted burden of
proof, thus, was not discharged by the Defendant. Therefore, it is
established that the Testatrix had physical and mental capacity to execute
the will.
The Caveatrix challenged the will on several grounds. Firstly it was
alleged in the written statement that disposition by the will is unnatural,
improbable and unfair for the reasons that all the heirs and heiresses of the
Testatrix were not included. Testamentary disposition of property to the
grandson he is not unnatural disposition; the grandson is very much closely
related to a testator or a testatrix. No reason is needed, in fact, for depriving
the sons and daughters. It is not necessary that the testator or the testatrix
should compulsorily bestow his legal heirs and successors exclusively with
his or her blessings. This argument cannot be accepted therefore.
Secondly, it was argued that the execution of the will was surrounded
by the suspicious circumstances. Unnatural disposition was mentioned as
one of the suspicious circumstances. As stated above, the disposition is no
way unnatural. The execution of the will was attenuated in presence of a
doctor and family members. The signature of the Testatrix was also
identified by the witnesses. This apart the will is a registered one which
though not conclusively yet raises a presumption of genuineness of the
same. The Caveatrix did not examine herself because of her illness. The
P a g e | 13
constituted attorney had not enough personal knowledge as deposed. More
so, Ext. E is the affidavit sworn by the Caveatrix before notary public where
she stated that the will dated 8th December, 2005 executed by her mother
Sita Devi Bazaz, was her last will and testament and the said will was validly
executed. She also signified her consent in grant of probate in the will. This
document is not challenged. She for this or that reason did not appear
before this Court to depose, in which case, this Court could get clarification
from her on this dichotomy and divergence. In absence, it may be
considered that the Defendant, on two different occasions made two
different and contradictory statements. Though it is in the form of affidavit
there is no evidence challenging the contention of this document.
It is also alleged in the written statement that the will got executed by
the Testatrix under force, coercion and undue influence. There is no cavil
on the point of law that burden of proof is on the person who alleges that
will was executed under coercion, undue influence or force. The principal of
law had long been enunciated by the Supreme Court of India in H.
Venkatachala Iyengar Vs. B.N. Thimmajamma and Ors. (AIR 1959 SCC
443) reiterated in Rani Pnrnima Debi and Anr. Vs. Kumar Khagendra
Narayan Deb and Anr. (AIR 1962 SCC 567) and others subsequent
judgments. In Shivakumar v. Sharanabasappa [(2021) 11 SCC 277], three
Judges' Bench of the Supreme Court of India, after considering the observations
made in H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Ors.
(supra), Rani Pnrnima Debi and Anr. Vs. Kumar Khagendra Narayan
Deb and Anr. (supra) as well as other cases deduced the following principles:
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"12. For what has been noticed hereinabove, the relevant principles
governing the adjudicatory process concerning proof of a will could be
broadly summarised as follows:
12.1. Ordinarily, a will has to be proved like any other document; the
test to be applied being the usual test of the satisfaction of the prudent
mind. Alike the principles governing the proof of other documents, in
the case of will too, the proof with mathematical accuracy is not to be
insisted upon.
12.2. Since as per Section 63 of the Succession Act, a will is required to
be attested, it cannot be used as evidence until at least one attesting
witness has been called for the purpose of proving its execution, if there
be an attesting witness alive and capable of giving evidence.
12.3. The unique feature of a will is that it speaks from the death of the
testator and, therefore, the maker thereof is not available for deposing
about the circumstances in which the same was executed. This
introduces an element of solemnity in the decision of the question as to
whether the document propounded is the last will of the testator. The
initial onus, naturally, lies on the propounder but the same can be taken
to have been primarily discharged on proof of the essential facts which
go into the making of a will.
12.4. The case in which the execution of the will is surrounded by
suspicious circumstances stands on a different footing. The presence of
suspicious circumstances makes the onus heavier on the propounder
and, therefore, in cases where the circumstances attendant upon the
execution of the document give rise to suspicion, the propounder must
remove all legitimate suspicions before the document can be accepted as
the last will of the testator.
P a g e | 15
12.5. If a person challenging the will alleges fabrication or alleges fraud,
undue influence, coercion et cetera in regard to the execution of the will,
such pleas have to be proved by him, but even in the absence of such
pleas, the very circumstances surrounding the execution of the will may
give rise to the doubt or as to whether the will had indeed been executed
by the testator and/or as to whether the testator was acting of his own
free will. In such eventuality, it is again a part of the initial onus of the
propounder to remove all reasonable doubts in the matter.
12.6. A circumstance is "suspicious" when it is not normal or is "not
normally expected in a normal situation or is not expected of a normal
person". As put by this Court, the suspicious features must be "real,
germane and valid" and not merely the "fantasy of the doubting mind".
12.7. As to whether any particular feature or a set of features qualify as
"suspicious" would depend on the facts and circumstances of each case.
A shaky or doubtful signature; a feeble or uncertain mind of the
testator; an unfair disposition of property; an unjust exclusion of the
legal heirs and particularly the dependants; an active or leading part in
making of the will by the beneficiary thereunder et cetera are some of
the circumstances which may give rise to suspicion. The circumstances
abovenoted are only illustrative and by no means exhaustive because
there could be any circumstance or set of circumstances which may give
rise to legitimate suspicion about the execution of the will. On the other
hand, any of the circumstances qualifying as being suspicious could be
legitimately explained by the propounder. However, such suspicion or
suspicions cannot be removed by mere proof of sound and disposing
state of mind of the testator and his signature coupled with the proof of
attestation.
P a g e | 16
12.8. The test of satisfaction of the judicial conscience comes into
operation when a document propounded as the will of the testator is
surrounded by suspicious circumstance(s). While applying such test, the
court would address itself to the solemn questions as to whether the
testator had signed the will while being aware of its contents and after
understanding the nature and effect of the dispositions in the will?
12.9. In the ultimate analysis, where the execution of a will is shrouded
in suspicion, it is a matter essentially of the judicial conscience of the
court and the party which sets up the will has to offer cogent and
convincing explanation of the suspicious circumstances surrounding the
will."
Coming to the case in hand, P.W.1 and P.W.2 deposed and extensively
cross examined. Physical and the mental capacity of the testatrix was
normal, as discussed above. Disposition of property was to the grandson of
the testatrix, which though alleged to be unnatural, is not so, being confined
within filial relationship. The testatrix stated in the will that since her
daughter and son are well settled, she did not make any provision for them.
These reasons are enough to justify the bequest. Probate court is not a court
of appeal over the will; it rather sits in the armchair of the testator or
testatrix to make the will efficacious. In other words, the propounder of the
will proved and established due execution of the will and stirred clear all the
clouds of suspicions.
Caveatrix/Defendant failed to discharge this burden of proof cast on
her. She failed to establish any undue influence, coercion or force, as alleged
to be exerted on the testatrix. D.W.1 had no personal knowledge either of
the testatrix or on the attenuating circumstances. More so, on previous
P a g e | 17
occasion she stated in Ext.E that the will was duly executed. There is no
reason or explanation as to why suddenly the issues of undue influence,
coercion or force cropped up. She did not come before this Court for illness.
No iota of evidence was adduced to establish the alleged facts of undue
influence, force or coercion. Therefore, the allegation of undue influence,
force or coercion is not proved.
In conclusion, this Court is of opinion that the last will and testament
of the Testatrix dated 8th December, 2005 was duly executed in accordance
with Section 63 of the Indian Succession Act, 1925.
All these issues are decided in favour of Plaintiff.
In nutshell, the instant suit succeeds.
Let the probate be granted to the last will and testament dated 8th
December, 2005 of the Testatrix Sita Devi Bazaz.
The instant suit is disposed of.
Inventory and accounts shall be filed within the six months.
(Sugato Majumdar, J.)
