Will Must Be Respected Unless Suspicious Circumstances Are Proved; Unequal Distribution Not Grounds To Deny Probate: Calcutta High Court

The Calcutta High Court has reiterated that probate proceedings are concerned only with the genuineness of a will and not with the fairness of distribution among heirs, holding that mere delay in seeking probate or unequal bequests cannot, by themselves, amount to suspicious circumstances. Emphasising that courts must respect the last wishes of a testator once due execution and attestation are proved, the Court refused to interfere with a decree granting probate of a decades-old will.

A Division Bench of Justice Tapabrata Chakraborty and Justice Reetobroto Kumar Mitra dismissed an appeal challenging the probate granted in respect of the will of Mahadeb Lal Show, observing that a probate court acts as a “court of conscience” whose duty is to ensure that the document truly reflects the voluntary and conscious decision of the testator, and not to re-examine the wisdom or equity of the bequests.

The testator, a resident of Murshidabad, had executed a registered will in 1960 distributing his properties among his two wives and children in varying proportions. After his death in 1962, the named executors did not immediately apply for probate. A first probate petition filed in 1975 was withdrawn as family members attempted an amicable settlement. A second application filed in 1989 turned contentious when some of the siblings opposed the grant, alleging that the testator lacked mental capacity, that the will was fabricated and obtained through domination, and that the properties were coparcenary in nature. They also relied on the long delay to argue that suspicious circumstances surrounded the will.

Rejecting these contentions, the Bench noted that several witnesses consistently deposed that the testator was in sound physical and mental health at the time of execution. Since the attesting witnesses were no longer alive, the will was proved through secondary evidence, including identification of signatures by persons familiar with them. The Court found no material to substantiate allegations of coercion, forgery or fabrication, terming them bald assertions unsupported by evidence.

The judges further clarified that disputes about whether the properties were self-acquired or coparcenary fall outside the scope of probate proceedings. A probate court, they said, only examines whether the will was validly executed; questions of title must be decided in separate civil proceedings. The Court also attached significance to a subsequent deed of gift executed by the heirs themselves, which expressly referred to the will, indicating their knowledge of and acquiescence to its existence.

On the issue of delay, the Bench held that the right to apply for probate is a continuing one and arises when it becomes necessary for the executor to establish authority under the will. It observed that delay may at best create a rebuttable suspicion, but cannot operate as an absolute bar. In the present case, the explanation that the family was engaged in settlement talks was found to be plausible, and the due execution and attestation of the will stood independently proved.

Dealing with the argument of unequal distribution, the Court made it clear that disparity in bequests is not unnatural by itself. It observed that a testator is free to distribute property as he chooses and that “unequal distribution or uneven distribution does not, under any stretch of imagination, qualify by itself as a suspicious circumstance.”

Finding no infirmity in the trial court's appreciation of evidence or conclusions, the High Court upheld the grant of probate and dismissed the appeal, with no order as to costs.

Case: Raja Shah & Ors. v. Kowshik Show & Ors.

Case No.: FA 348 of 2007

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