Document db4e993c-8d3a-49a1-a832-68bf5d59612d

OD-5
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE

APOT/154/2025
IA No. GA/3/2026

IN THE GOODS OF:
SHRIMATI RAMA DATTA GUPTA, DECEASED
-AND-
GOPAL DAS AND ANR

BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
-AND-
The Hon'ble JUSTICE MD. SHABBAR RASHIDI


For the Appellant : Mr. Rudradeb Choudhury, Adv.
Mr. Shaswat Nayak, Adv.
Mr. Shoham Sanyal, Adv.
Mr. K. N. Jana, Adv.


HEARD ON : 24.06.2026


DELIVERED ON : 24.06.2026


MD. SHABBAR RASHIDI, J.:-

1. The appeal is directed against the judgment and order dated April
23, 2025 passed in PLA/63/2019.

2. By the impugned judgment and order, the learned Single Judge
refused to grant probate to the last Will and Testament of late Rama
Datta Gupta.

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3. It is submitted by learned advocate appearing for the appellant that
the grant of probate was wrongfully refused by the learned Single
Judge. It was further submitted that one of the attesting witnesses
affirmed affidavit in support of the case of the petitioner, which was
on record. The attesting witness having expired prior to the
institution of the proceeding and could not be produced before the
learned Trial Court.
4. It was further submitted that the Will in question was proved in
accordance with law by an attending witness in terms of Section 63
of the Indian Succession Act, 1925 as well as Section 68 of the
Indian Evidence Act, 1872.
5. It was further contended by the learned advocate for the petitioner
that the learned Trial Judge erred in holding that the Will in
question could not be proved in accordance with law and was
executed under suspicious circumstances and thereby refusing
grant of probate to such Will. It was further contended by learned
Advocate for the petitioner that the learned Trial Court attributed
suspicious circumstances to the Will in question only on the ground
that it was not a natural Will and no interest was proposed to be
conveyed on the natural legal heirs of the petitioner of the Will.
6. It appears that Rama Datta Gupta was a Hindu governed by
Dayabhaga School of Jurisprudence. He last resided at Cluster IX,
E/8, Sector-III, Purbachal, Salt Lake City, Kolkata-700091. She

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expired on July 3, 2008. Prior to her death, said Rama Datta Gupta
had executed a last Will and Testament on June 2, 1995 in respect
of the properties mentioned in the said Will. The said Will was
registered in the Office of District Registrar, Barasat.

7. One of the propounders of the Will was examined as P.W.-1. One
Tarak Nath Dutta, the attending witness, was examined as P.W.-2.
The application for grant of probate was filed supported by an
affidavit affirmed by one of the attesting witnesses, namely, Atanu
Bhattacharjee.
8. Petitioners were appointed as joint executors of the Will. The
husband of the testatrix died prior to her death. At the time of her
death, the testatrix was survived by two sons and two daughters as
legal heirs and successors. The Will was proved in solemn form.
9. It is well settled that a Will has to be proved in accordance with
Section 63 of the Indian Succession Act which reads as follows:
“ 63. Execution of unprivileged Wills .— Every testator,
not being a soldier employed in an expedition or engaged in
actual warfare, 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

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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
acknowledgement of his signature or mark, or 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.”

10. It further transpires from the judgment and order that learned
Single Judge noted that Will has to be proved in accordance with
Section 68 of the Indian Evidence Act. If the attending witnesses are
not available or cannot be produced to prove the Will, the Will is
required to be proved in accordance with Section 69 of the Act of
1872. It would be apposite to set out the provisions of Sections 68
and 69 of the Indian Evidence Act.
“ 68. Proof of execution of document required by law
to be attested . If a document is required by law to be
attested, it shall not be used as evidence until one attesting
witness at least has been called for the purpose of proving

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its execution, if there be an attesting witness alive, and
subject to the process of the Court and capable of giving
evidence :[Provided that it shall not be necessary to call an
attesting witness in proof of the execution of any document,
not being a Will, which has been registered in accordance
with the provisions of the Indian Registration Act, 1908 (XVI
of 1908), unless its execution by the person by whom it
purports to have been executed is specifically denied.”

“ 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 document is in the handwriting of that
person.”

11. As noted above, one of the petitioners deposed as P.W.-1 whereas
the attending witness was examined as P.W.-2. We have gone
through the evidence so recorded before the learned Trial Court.
From the affidavit of evidence of P.W.-2 it transpires that although
P.W.-2 was not an attesting witness but he testified that the Will
was executed in his presence. The executrix as well as two attesting
witnesses signed on the Will in his presence. Not only that, P.W.-2
has also in his deposition established that the testatrix had an
intention and was in a mental condition sufficient to execute the
Will.

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12. In the impugned judgment and order, the learned Trial Court has
come to the following conclusion :-
“Firstly, there is an unnatural bequest to the
stranger by the instant will. Secondly, the will was not
executed in presence of the relatives, sons and daughters
of the Testatrix. Thirdly, it is not clear and a doubt remains
as to whether this is the last will and testament of the
Testatrix. Fourthly, execution of the will is sought to be
proved by attending witness.

Execution of the will is to be in conformity with
Section 63 of the Indian Succession Act, 1925. The will is
to be proved in accordance with provision of Section
68/69/71 of the Indian Evidence Act, 1872. No case is
made out or no evidence is furnished as to why Section 69
should be applicable. The propounder of the will said
nothing on the attesting witnesses. No explanation is there
why the other living attesting witness had not been
examined. Established and proved facts do not warrant
that the execution of the will should be proved dispensing
with the evidence of attesting witnesses. In such
circumstances and for the reasons stated above execution
of the will as contemplated in section 63 of the Indian
Succession Act, 1925 cannot be said to be proved, in the
manner contemplated in Section 68 of the Indian Evidence
Act, 1872. For reasons stated above, it is concluded and
decided that the will is not proved.”

13. As noted above, the Court has been informed that both the attesting
witnesses are no more alive and are not available to prove the

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execution of the Will in question in accordance with the provisions
of Section 68 of Evidence Act. An attending witness has been
examined as P.W.-2. We have already noted that P.W.-2 in his
deposition categorically stated that he was present when the Will in
question was executed by the testatrix. He has also proved that,
both the testatrix and the two attesting witnesses signed on the Will
after its execution in her presence. Not only that, she has gone
further to prove that at the time of execution of the last Will, the
testatrix was physically fit and mentally alert to make a Will.
14. One of the attesting witnesses, namely, Atanu Bhattacharya swears
an affidavit which is accompanied with the application for probate.
In such affidavit, the attesting witness has stated to the effect that
on June 2, 1995 he was present and saw the testatrix Smt. Rama
Datta Gupta putting her signature at the foot of the subject Will in
his presence as well as in the presence of other attesting witness,
i.e. Sri Subrata Sengupta. He further stated that at the request of
the testatrix, Atanu Bhattacharya signed on the Will in presence of
the testatrix and Subrata Sengupta. The other attesting witness
also signed in the similar way. Not only that, Atanu Bhattacharya
further stated in his affidavit that testatrix was in a sound state of
mind at the time of execution of the Will and had full testamentary
capacity.

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15. Likewise, the attending witness, i.e. Tarak Nath Dutta who deposed
as P.W.-2 stated in his deposition that he was present on June 2,
1995 when the testatrix Smt. Rama Datta Gupta executed the Will.
He also stated that he saw the testatrix signing on the Will and the
two attesting witnesses putting their signature on the Will.
16. Such evidence of P.W.-2 apparently overlooked by the learned Trial
Court. To our opinion, the petitioner has been able to prove the Will
legally in accordance with provisions of Sections 69 and 71 of the
Indian Evidence Act, 1872. We therefore, set aside the impugned
judgment and order.
17. PLA/63/2019 stands allowed.
18. There will be an order in terms of prayer (d) of the application for
probate.
19. Accordingly, APOT/154/2025 along with the connected application
is disposed of, without any order as to costs.



(MD. SHABBAR RASHIDI, J.)


20. I agree.

(DEBANGSU BASAK, J.)





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