One attesting witness is enough to be examined for execution : high court of Calcutta
Considering the aforesaid judgement it can be proved even at least one attesting witnesses can be examined. There is no need for more than one attesting witnesses to be examined at all. It is no doubt through that the execution of the will must be in the presence of at least 2 attesting witness is. However this does not mean that both the witnesses have to be examined before the court unless one of the witnesses has failed prove the execution of the will. No adverse interference can be drawn merely because all the testing witnesses have not been examined to prove the will, upheld by the high court of Calcutta, by the learned bench of Honourable Justice Nishtha Mhatre, in the case of Pulak Mukherjee V. Santosh Mukherjee and others, F.A. No. 20 of 2014.
The Appellant, who is the son of Bibhuti Mukherhjee, was appointed as the sole Executor of the Will. Bibhuti Mukherjee expired on 8th October, 1997. The Appellant preferred a petition for grant of probate on 5th July, 2007 before the District Judge, North 24-Parganas
at Barasat, being Miscellaneous Case (P) No. 255 of 2007 (P).
A written statement was filed on behalf of Gouri Roy, Smt. Krishna Singh and Mita Kar, the
Respondent Nos. 3, 5 and 7. They contended that their father was very ill prior to his death and was immobile. The Respondents further pleaded that the Appellant had managed to secure a Will in his favour in order to deprive them of their father’s property. They also contended that the Appellant never bothered about their father during his life-time and that though the Respondents were the married daughters of the deceased, they looked after him.
Evidence was led before the Trial Court. The propounder of the Will, the Appellant herein, examined himself and one of the attesting witnesses, Pradip Chatterjee. The Respondents did not step into the witness box at all to rebut the appellant’s evidence.
Mr. Ghosh, the learned Counsel appearing for the Appellant, submits that the Trial Court has erred in refusing the probate by ignoring the evidence on record. He submits that for the purpose of obtaining the probate of the Will, the propounder was only required to prove that the testator had executed the Will and that the attesting witnesses had signed the same in presence of the testator. According to Mr. Ghosh, all the necessary formalities required under section 63 (c) of the Indian Succession Act, had been complied with and, therefore, the Trial Court was duty bound to grant the probate.
The High court, after considering the pleadings and the evidence on record, dismissed the application for probate. The High Court was of the view that the execution of the Will was shrouded in suspicious circumstances as the testator could not have executed it on his own and out of his free will and consent. The High Court, however, found that the signature of the testator had not been challenged by the Respondents. No witness had been examined by them before the Court. The High Court then observed that the Will had been proved. However, the Trial Court concluded that because it could not be said that it was executed voluntarily and without duress, a cloud was cast upon the execution of the Will.
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Judgement reviewed by – Rani Banerjee