Case Law Analysis

Probate Grant | Courts Cannot Verify Factual Truth of Will’s Allegations, Only Due Execution & Testamentary Capacity : Calcutta HC

The Calcutta High Court held that while probate courts must verify a will’s due execution and the testator’s mental capacity under Section 63 of the Indian Succession Act, they lack jurisdiction to adjudicate the factual accuracy of statements within the will. This clarifies the narrow scope of probate proceedings, shielding executors from having to defend the veracity of personal allegations in a will - a critical boundary for estate litigants.

Cassie News NetworkCassie News Network
May 6, 2026, 5:29 PM(Updated: Nov 3, 2026)
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Probate Grant | Courts Cannot Verify Factual Truth of Will’s Allegations, Only Due Execution & Testamentary Capacity : Calcutta HC

The Calcutta High Court has reaffirmed the limited scope of probate jurisdiction, holding that courts must confine themselves to verifying the due execution of a Will and cannot delve into the truthfulness of its contents or the testator’s personal motivations. This ruling provides critical clarity for practitioners handling testamentary disputes.

Background & Facts

The Dispute

This is a testamentary suit seeking probate of the last Will and Testament of Anil Kumar Sen (deceased), a Hindu who resided in Kolkata. The deceased passed away on 23rd December, 2016 at his daughter’s residence at Lake Tower, 87, Southern Avenue, Kolkata -700029. He executed his last Will on 22nd February, 2012, which was duly registered with the Registrar of Assurances, Kolkata. The Will named his elder son, Surajit Sen, as the Executor and sole beneficiary of his estate. The deceased was survived by his wife Sumita Sen, two sons - Surajit Sen (Plaintiff/Executor) and Abhijit Sen (Caveator/Defendant) - and one daughter, Sujata Pyne. The mother of the deceased had predeceased him.

Key Facts

  • The deceased executed the Will on 22.02.2012, at the age of approximately 70, while still actively going to his office.
  • The Will bequeathed property, including Flat No. 503 at Niladri and Flat No. 504, to the Executor and other family members.
  • The Defendant, Abhijit Sen, alleged that Flat No. 503 was purchased by the deceased as a wedding gift to him but was fraudulently registered in the name of his mother.
  • The Defendant further claimed that the Will contained false, malicious, and inflammatory statements about him, describing it as "full of untruth, lies... totally toxic, incomprehensible, and irresponsible."
  • The Defendant alleged the Will was executed when the testator was of unsound mind and under undue influence.
  • The daughter, Sujata Pyne, and the wife, Sumita Sen, filed affidavits of consent, not opposing the grant of probate.

Procedural History

  • 22.02.2012: Testator executed the Will, registered with Registrar of Assurances, Kolkata.
  • 23.12.2016: Testator died.
  • 05.01.2017: Executor (Surajit Sen) filed petition for probate under Section 276 of the Indian Succession Act, 1925.
  • 10.01.2017: Defendant filed caveat, which was allowed by the Court.
  • 15.02.2017: Defendant’s affidavit in support of caveat was treated as written statement.
  • 27.04.2026: Hearing concluded.
  • 05.05.2026: Judgment delivered.

Relief Sought

The Plaintiff sought grant of probate of the Will dated 22.02.2012, asserting due execution and testamentary capacity. The Defendant opposed the grant, seeking rejection of the Will on grounds of lack of testamentary capacity, undue influence, and fraudulent content.

The central question was whether the probate court, under Section 63 of the Indian Succession Act, 1925, is empowered to examine the truthfulness, fairness, or moral validity of statements made in a Will, or whether its jurisdiction is strictly confined to verifying due execution and testamentary capacity.

Arguments Presented

For the Petitioner

The Petitioner relied on the testimony of two attesting witnesses - PW-1 (attesting witness) and PW-2 (daughter of the testator) - who both affirmed that the testator was physically fit, mentally alert, and not bedridden at the time of execution. They confirmed the testator’s signature and their own signatures on the Will. The Executor (PW-3) produced the registered Will and death certificate as exhibits. The Petitioner argued that the Defendant’s allegations regarding bias, falsehood, and undue influence were irrelevant to the probate proceeding, which is a formal inquiry into execution, not a trial on the merits of the Will’s contents.

For the Respondent

The Defendant contended that the Will was the product of mental incapacity and undue influence, citing its inflammatory language and alleged misrepresentation of facts, particularly regarding property ownership. He argued that the Will’s content revealed a malicious intent and thus could not be considered a true expression of the testator’s wishes. He further claimed that the testator’s mental state was compromised, though he did not produce any medical evidence or cross-examine PW-3.

The Court's Analysis

The Court emphasized that the jurisdiction of a probate court is strictly circumscribed by Section 63 of the Indian Succession Act, 1925, which requires proof of due execution - namely, that the Will was signed by the testator in the presence of two or more attesting witnesses, each of whom saw the testator sign or acknowledge the signature.

"The probate court has no authority to dissect and decide on the veracity of the statements contained in the Will."

The Court noted that the Defendant’s written statement was replete with personal allegations against the testator - accusations of bias, dishonesty, and moral misconduct - which fall entirely outside the scope of probate proceedings. Such contentions, however serious, are matters for civil suits or criminal proceedings, not probate.

The Court further observed that the Defendant failed to cross-examine PW-3, the Executor, despite having the opportunity. The testimony of PW-1 and PW-2 was consistent, credible, and unimpeached on material points. Both attesting witnesses affirmed the testator’s mental alertness and physical fitness, and that he was not under any coercion. The Will was duly registered, and the signatures were verified.

The Court held that the burden of proving lack of testamentary capacity or undue influence lies on the caveator, and mere allegations without evidence cannot defeat a Will that has been duly executed and attested.

The Verdict

The Plaintiff succeeded. The Court granted probate of the Will dated 22.02.2012. The Court directed the Executor to file inventory and accounts within the statutory period prescribed under the Indian Succession Act, 1925.

What This Means For Similar Cases

Probate Proceedings Are Not Trials on the Merits

  • Practitioners must confine objections in probate matters strictly to issues of due execution, testamentary capacity, and undue influence - never to the fairness or truth of the Will’s content.
  • Allegations of malice, bias, or false statements in a Will are irrelevant unless they directly undermine the testator’s mental state or voluntariness at the time of execution.

Evidence Must Be Concrete, Not Emotional

  • Mere subjective descriptions of a Will as "toxic" or "incomprehensible" carry no legal weight without supporting evidence such as medical records, contemporaneous communications, or expert testimony.
  • Failure to cross-examine key witnesses, especially attesting witnesses, weakens a caveator’s position significantly.

Registration Alone Is Not Sufficient, But It Helps

  • While registration does not validate a Will, it is a strong corroborative factor under Section 68 of the Evidence Act.
  • The presence of two attesting witnesses who testify to the testator’s mental alertness and voluntary execution is decisive in the absence of contrary evidence.

Case Details

Surajit Sen v. Abhijit Sen

PDF
Court
High Court at Calcutta
Date
05 May 2026
Case Number
TS/3/2022
Bench
Sugato Majumdar
Counsel
Pet: Mr. Shaunak Ghosh, Ms. Saheli Sen, Mr. Rajib Mullick, Ms. Rupjaani Sen
Res:

Frequently Asked Questions

The probate court’s jurisdiction is limited to verifying whether the Will was duly executed-i.e., signed by the testator in the presence of two attesting witnesses who saw the signature or acknowledgment. It cannot inquire into the truth, fairness, or moral validity of the Will’s contents.
Yes, but only if supported by concrete evidence. Mere allegations that the Will is 'malicious' or 'incomprehensible' are insufficient. The caveator must prove lack of testamentary capacity or coercion through medical records, witness testimony, or contemporaneous documentation.
No. Registration is a corroborative factor but does not by itself establish due execution. The burden remains on the propounder to prove that the Will was signed by the testator and attested by two witnesses in accordance with Section 63.
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Disclaimer

This article is for informational purposes only and does not constitute legal advice. The views expressed are based on the judgment analysis and should not be taken as professional counsel. Please consult with a qualified attorney for advice specific to your situation.