The Bombay High Court upheld the validity of a will executed by Tarapada Chatterjee in 1989, dismissing an appeal by his son who challenged the will on grounds of suspicious circumstances including alleged Parkinson's disease, shaky signature, and disinheritance. The Division Bench held that the propounder (daughter) successfully discharged the burden of proving valid execution by relying on attesting witness evidence, and that mere suspicious circumstances without proof of unsound mind do not invalidate a will.
Background & Facts
The Dispute
The dispute centers on the last will and testament of Tarapada Chatterjee dated 21.03.1989, which bequeathed his entire estate to his daughter Shanta Ashok Tolat (the Plaintiff/Respondent), completely excluding his son Avijit Chatterjee (the original Defendant). Avijit Chatterjee filed Suit No.852/1995 in February 1995 seeking administration of his father's estate, alleging his father died intestate. In response, Shanta Chatterjee filed Testamentary Petition No.360/1995 on 30.06.1995 seeking probate of the will, which was affirmed on the same date. The will was executed on 21.03.1989 at Tarapada Chatterjee's residence at 32A, Jaldarshan, Nepean Sea Road, Bombay - 400 036.
Key Facts
- Tarapada Chatterjee died at Bombay Hospital on 24.08.1990
- He had a fixed place of residence at 32A, Jaldarshan, Nepean Sea Road, Bombay - 400 036 at time of death
- The will was executed on 21.03.1989 (Exhibit-A to the petition)
- Shanta Chatterjee was named sole executrix in the will
- Avijit Chatterjee filed a caveat and affidavit opposing probate, claiming his father died intestate and never made a will
- Avijit Chatterjee stated he was familiar with his father's signature and knew the purported will did not bear his father's signature
- Avijit Chatterjee had been staying away from Mumbai (in Kolkata, Chennai, Hyderabad) due to job
- Avijit Chatterjee and his father had a cordial relationship; they stayed together in Hyderabad and Chennai
- Avijit Chatterjee performed his father's cremation in Mumbai and obsequial rites in Chennai after his father's death in August 1990
- In January 1992, Avijit Chatterjee discussed estate division with Plaintiff, who did not mention any will
- Avijit Chatterjee performed 'Kanyadaan' when Plaintiff married in May 1992
- Avijit Chatterjee's father had been ailing from 1988 onwards with difficulty signing
- Avijit Chatterjee stated his father told him several times that Plaintiff used to put his signature
- Avijit Chatterjee claimed the signature on the will was not his father's but that of the Plaintiff
- Avijit Chatterjee produced letters written by Plaintiff to support his claim of emotional blackmail
- Avijit Chatterjee stated his father spent more time with family than with Plaintiff in Mumbai
- Avijit Chatterjee claimed his father wanted to divide estate in three parts: one to Plaintiff, one to Defendant, one to grandchildren
- Plaintiff examined four witnesses: PW-1 Sandeep Dave (attesting witness), PW-2 Hemant Vishnu Prabhu (society manager), PW-3 Jatindar Kumar Sethi (society treasurer/chairman), PW-4 Dilip Pralhad Ahiwale (handwriting expert)
- Defendant examined himself as DW-1, DW-2 Ashim Chatterjee (son), DW-3 Hiral Mehta (handwriting expert), DW-4 Vijaysudha Talwar (sister-in-law)
- Single Judge framed issues on 06.01.2011: (1) Whether will was validly executed; (2) What relief Plaintiff entitled to
- Learned Single Judge passed impugned order on 13.02.2020 granting probate
Procedural History
- 24.08.1990: Tarapada Chatterjee died at Bombay Hospital
- 30.06.1995: Testamentary Petition No.360/1995 filed by Plaintiff seeking probate (affirmed same date)
- February 1995: Defendant filed Suit No.852/1995 for administration of estate
- 05.04.1995: Court appointed Court Receiver after ad-interim order in Defendant's suit
- 06.01.2011: Single Judge framed issues in the testamentary suit
- 13.02.2020: Learned Single Judge passed impugned judgment and order granting probate
- 17.09.2026: Matter reserved for judgment
- 07.10.2026: Judgment pronounced
- 2251/2020: Interim Application filed by Defendant seeking stay on probate grant
Relief Sought
Appellants (Defendants) sought: dismissal of the probate petition, declaration that the will was not validly executed, and that the estate should be administered as per intestacy laws. They also prayed for stay on grant of probate for eight weeks.
The Legal Issue
The central question was whether the propounder (Plaintiff) had successfully discharged the burden of proving the valid execution of the will under Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, particularly in the face of alleged suspicious circumstances including the testator's Parkinson's disease, shaky signature, disinheritance of the natural heir, and the propounder's active role in will execution. The court also had to determine whether, in the absence of specific pleadings of suspicious circumstances in the caveat affidavit, the court could still consider such circumstances raised during arguments.
Arguments Presented
For the Appellant/Petitioner
Shri Kamdar, learned Senior Counsel for the Appellants, submitted that the burden of proving a valid will lies on the propounder under Sections 63 of the Succession Act and 68 of the Evidence Act. He relied on Kavita Kanwar Vs. Pamela Mehta and others to argue that suspicious circumstances must be removed by the propounder to satisfy the court's conscience. The Appellants contended suspicious circumstances existed: (i) shaky signature indicating Parkinson's disease and lack of sound mind; (ii) total disinheritance of the son (original Defendant) with no mention in will; (iii) Plaintiff taking lead in will execution and obtaining entire benefit; (iv) no evidence of soundness of mind; (v) testator hospitalized for 45 days for neurophysiological treatment; (vi) Plaintiff not examining herself. They argued the onus was not discharged as the only attesting witness examined (Sandeep Dave) had a mother who appeared for Plaintiff in a partition suit, suggesting bias.
For the Respondent/State
Shri Tulzapurkar, learned Senior Counsel for the Respondent, submitted that the caveator only challenged the will's execution, so Plaintiff needed only to prove valid execution by testator, attestation by two witnesses, and sound disposing mind. He argued that circumstances termed suspicious by Defendant were not actually suspicious: exclusion of natural heir is not suspicious when bequest favors offspring (citing Uma Devi Nambiar Vs. T.C. Sidhan); Parkinson's disease does not equate to unsound mind; late production of will is not suspicious; Plaintiff's non-examination is not suspicious. He emphasized that attesting witness evidence (Sandeep Dave) prevails over expert opinion, citing Shashi Kumar Banerjee Vs. Subodh Kumar Banerjee and Chennadi Jalapathi Reddy Vs. Baddam Pratapa Reddy. He contended that without specific pleadings of suspicious circumstances in the caveat affidavit, the Defendant could not spring surprises at argument stage, relying on Budh Singh Vs. Raghubir Singh.
The Court's Analysis
The Court began by noting that probate proceedings are not merely inter-partes litigation but lead to judgment in rem, requiring satisfaction of the court's conscience regarding the will's validity and removal of suspicious circumstances, citing Kavita Kanwar Vs. Pamela Mehta. It held that irrespective of pleadings in opposition, the propounder must satisfy the court's conscience by proving valid execution and removing suspicious circumstances.
Regarding the burden of proof, the Court distinguished between the propounder's initial burden and the objector's role. It agreed with Shri Tulzapurkar that in the absence of specific pleadings of suspicious circumstances in the caveat affidavit, the Defendant could not raise new grounds at argument stage without pleading them first, citing Budh Singh Vs. Raghubir Singh: "a challenger to the Will cannot be allowed to, without taking any pleading or any specific grounds of challenge, spring surprises and at the stage of arguments contend that this has not been proved."
On the merits, the Court found the will validly executed. It held that mere exclusion of a natural heir from a will, without more, cannot be a suspicious circumstance when the bequest is in favor of offspring, citing Uma Devi Nambiar Vs. T.C. Sidhan: "the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance especially in a case where the bequest has been made in favour of an offspring."
On the testator's health, the Court acknowledged Parkinson's disease and hospitalization but held this did not establish lack of sound and disposing mind. It noted that the evidence showed the testator could still sign (as evidenced by attesting witness testimony) and that illness alone does not equate to testamentary incapacity.
Critically, the Court held that attesting witness evidence prevails over expert opinion. It relied on Shashi Kumar Banerjee Vs. Subodh Kumar Banerjee and Chennadi Jalapathi Reddy Vs. Baddam Pratapa Reddy to state that expert evidence is opinion evidence and rarely conclusive; it requires corroboration by direct or circumstantial evidence. PW-1 Sandeep Dave, an attesting witness, testified he saw the testator sign the will and saw the other attesting witness Dr. Kriplani sign. His testimony stood firm under extensive cross-examination. The Court found no reason to disbelieve him, especially since the testator resided with the Plaintiff (his daughter) who was looking after him, making it natural for her to assist in the execution process.
The Court further held that late production of the will was not suspicious, as the Plaintiff filed the probate petition shortly after obtaining ad-interim relief in the Defendant's separate suit. It rejected claims of emotional blackmail and undue influence, noting the Plaintiff consistently informed the Defendant of his father's health through letters (Exhibits D1/3, D1/6, etc.), and the Defendant had chosen not to visit despite being in the same city.
Ultimately, the Court concluded that the propounder had established the will's valid execution beyond doubt, and the Defendant failed to prove the testator lacked sound and disposing mind. The caveat was dismissed, and the probate was upheld.
The Verdict
The Appeal was dismissed. The probate of the last will and testament of Tarapada Chatterjee granted by the learned Single Judge on 13.02.2020 was upheld. The Court held that the Will was validly executed by the testator, attested by two attesting witnesses, and made in a sound and disposing state of mind. No order as to costs was passed. The Interim Application No.2251/2020 seeking a stay on probate grant for eight weeks was also disposed of as the appeal had been decided on merits.
What This Means For Similar Cases
Testamentary Capacity Requires More Than Mere Illness
The judgment clarifies that a testator's suffering from ailments like Parkinson's disease or periodic hospitalization does not automatically negate testamentary capacity. Courts must assess whether the illness actually impaired the sound and disposing mind at the time of will execution, not merely infer incapacity from medical conditions. Practitioners should lead concrete evidence of cognitive impairment rather than relying solely on medical diagnoses.
Attesting Witness Evidence Trumps Expert Opinion
In will validity disputes, the evidence of attesting witnesses who personally observed the testator sign the will carries greater weight than handwriting expert opinions. Expert evidence is considered opinion evidence requiring corroboration, while attesting witness testimony constitutes direct evidence of execution. Parties challenging a will must prioritize cross-examining attesting witnesses on the testator's mental state rather than solely relying on expert reports.
Natural Heir Exclusion Alone Isn't Suspicious
When a will bequeaths property to an offspring (child), the exclusion of other natural heirs from the will, by itself, does not constitute a suspicious circumstance requiring explanation. The very purpose of a will is to alter ordinary succession, so disinheritance of heirs in favor of children is expected and not inherently suspicious. Objectors must show additional factors like fraud, coercion, or undue influence to raise suspicion.
Pleading Discipline in Probate Proceedings
Objectors to a will must specifically plead grounds of suspicion in their caveat affidavits; they cannot raise new suspicious circumstances at the argument stage without first pleading them. The burden remains on the propounder to prove valid execution and dispel pleaded suspicions, but courts will not consider unpleaded allegations as bases for invalidating a will. This reinforces the importance of precise pleadings in testamentary suits.
