The Calcutta High Court has reaffirmed that probate cannot be granted when the execution of a will is shrouded in suspicious circumstances that undermine the court’s confidence in the testator’s free and informed intent. This judgment underscores the stringent evidentiary burden on the propounder of a will, particularly when irregularities in signature placement, witness testimony, and document structure raise legitimate doubts about authenticity.
Background & Facts
The Dispute
The dispute centers on the validity of a will dated 24.12.1987 executed by the deceased, Akhilesh Kumar Sinha, bequeathing his entire estate to the appellant, Sant Agarwal, and in default, to Mahabir Prasad Agarwal. The deceased’s son, Rabi Sinha, contested the probate application, alleging that the signature of the testator was obtained on blank paper and later converted into a will through fraudulent means. The trial court dismissed the probate petition, holding that multiple suspicious circumstances rendered the will invalid under Section 63 of the Indian Succession Act, 1925.
Key Facts
- The testator, Akhilesh Kumar Sinha, died on an unknown date prior to the filing of the probate application.
- His widow survived him and passed away in 2008, after which the probate application was filed.
- The will (Ext. A) consisted of four typed pages and one blank page bearing the testator’s signature.
- The testator’s signature appeared on each page, but with unusual gaps between the typed text and the signature on the first page.
- The fourth page bore two signatures - one in the middle and one at the bottom.
- The fifth page was blank except for a signature penned through, with no accompanying text.
- The will named Sant Agarwal as executor, who was also the primary beneficiary.
- The will did not disclose who drafted or typed it.
- The testator’s residence was FD-347, Salt Lake City, Kolkata-700091.
Procedural History
- 24.12.1987: Execution of the alleged will.
- Undated, prior to 2009: Death of the testator; widow survived him.
- 2008: Death of the testator’s widow.
- 2009: Probate application (TS/6/2009) filed before the Calcutta High Court (Original Side).
- 18.05.2023: Trial Judge dismissed the probate application, holding the will invalid due to suspicious circumstances.
- 20.04.2026: Appeal (APD/3/2024) heard and dismissed by the Division Bench of the Calcutta High Court.
The Parties' Positions
Appellant (Sant Agarwal): Argued that the will was properly executed, attested by two witnesses, and complied with Section 63 of the Indian Succession Act. Contended that minor inconsistencies in witness testimony were immaterial and that the trial court erred in overemphasizing gaps in the document.
Respondent (Rabi Sinha): Alleged that the will was a fraud, with the testator’s signature obtained on blank paper and later filled in. Highlighted contradictions in witness accounts regarding the place of execution, the drafting process, and the presence of the testator’s wife.
Relief Sought
The appellant sought grant of probate of the will dated 24.12.1987, with appointment of Sant Agarwal as executor, and declaration of the will as valid under Section 63 of the Indian Succession Act, 1925.
The Legal Issue
The central question was whether the presence of multiple suspicious circumstances - unusual gaps between text and signature, contradictory witness testimony regarding place and manner of execution, and an unexplained blank page with a signature - sufficiently undermines the validity of a will such that the burden under Section 63 of the Indian Succession Act, 1925 remains unmet by the propounder.
Arguments Presented
For the Appellant
The appellant’s counsel argued that the trial court misapplied Section 63(b) by treating minor typographical gaps as fatal to the will’s validity. They contended that the presence of two attesting witnesses, the testator’s signature on every page, and the absence of any evidence of coercion or undue influence rendered the will valid. Reliance was placed on Dhananjay Reddy v. R. Srinivasa Rao to argue that technical irregularities do not invalidate a will if the testator’s intent is clear. They further asserted that the trial court erred in rejecting the affidavit of one attesting witness (Mr. Soni) merely because he did not appear in person, citing Smt. Sushila Devi v. Smt. Kamla Devi.
For the Respondent
The respondent’s counsel emphasized that the will’s structure raised grave doubts: the signature on the first page followed a long blank space after the text, the last page bore a signature without text, and the executor could not explain why the testator signed twice on the fourth page. They highlighted contradictions between the attesting witnesses on the place of execution (Vivekananda Road vs. Salt Lake City) and on whether the testator typed the will himself. The respondent relied on K. Srinivasan v. K. Srinivasan to argue that when suspicious circumstances exist, the burden shifts to the propounder to dispel them, which was not done.
The Court's Analysis
The Division Bench meticulously examined the structure of the will and the testimonial inconsistencies. It held that Section 63(b) requires the testator’s signature to be placed such that it clearly appears intended to give effect to the writing as a will. The court found that the long gap between the typed portion and the signature on the first page, coupled with the signature on a completely blank page, created a reasonable suspicion that the signature was affixed to a blank document.
"Signatures of the testator are there on each and every page of the Will, which is marked as Ext. A. There is a long gap between the typed portions and the signature of the testator on the first page, only intervened after a long gap below the typed words dots and ‘2’ indicating the second page. The fourth page of the Will bears two signatures of the testator, one in the middle, the other at the bottom. The next page is a blank one containing signature of the testator which was penned through."
The court further noted that the executor, P.W.2, failed to explain why the testator signed twice on the fourth page or why a blank sheet was signed. The court rejected the appellant’s argument that the affidavit of Mr. Soni could substitute for oral testimony, observing that his statement was relied upon in the probate application and thus became material when contradicted by the deposing witness.
The court also found the contradictory accounts regarding the place of execution - Vivekananda Road versus Salt Lake City - to be significant, particularly since the testator resided at the latter. The court held that the executor’s inability to reconcile these discrepancies, combined with the silence on who drafted the will, rendered the entire execution process suspect.
The court emphasized that probate is not a matter of right but requires the court’s conscience to be satisfied. Where suspicious circumstances exist, the burden on the propounder is not merely to prove execution but to dispel all reasonable doubt. The court concluded that the appellant failed to discharge this burden.
The Verdict
The appeal was dismissed. The Calcutta High Court affirmed the trial court’s order dated 18.05.2023, refusing probate of the will dated 24.12.1987. No costs were awarded. The court held that the suspicious circumstances surrounding the will’s execution - unexplained gaps, contradictory witness testimony, and an unexplained blank page with a signature - were sufficient to defeat the claim for probate under Section 63 of the Indian Succession Act, 1925.
What This Means For Similar Cases
Suspicious Circumstances Must Be Fully Discharged
- Practitioners must ensure that every irregularity in a will’s physical structure is explained by credible, consistent testimony.
- Gaps between text and signature, especially on the first page, are now recognized as potential red flags requiring explicit justification.
- A signature on a blank page, even if authenticated, will be treated as a serious irregularity unless the propounder can prove it was not used for fraudulent substitution.
Witness Consistency Is Non-Negotiable
- Attesting witnesses must provide uniform accounts on key facts: place of execution, presence of others, and manner of signing.
- Affidavits of non-deposing witnesses cannot be used to override contradictory oral testimony if the affidavit was relied upon in the probate application.
- If a witness’s statement is cited in the application, their absence from court may be fatal to the case.
Burden on Propounder Is Higher Than Ever
- The court’s emphasis on the "conscience of the court" signals that probate proceedings are quasi-judicial inquiries into authenticity, not mere formalities.
- Courts will now scrutinize the entire document structure, not just compliance with formalities.
- Propounders must anticipate and preemptively address every possible inconsistency before filing.
