Calcutta High Court Refuses To Grant Probate Of Will Attested By Witness Two Days Prior To Execution By Testator

The Calcutta High Court on Tuesday refused to grant probate of a ‘Will’ on the ground that one of the attesting witnesses had signed the ‘Will’ two days prior to the execution of the ‘Will’ by the testator.

The single judge bench of Justice Krishna Rao observed:

“The Will is a registered Will and the date of registration is also 24^th October, 2013. In the Will, there are two attesting witnesses but the petitioner has examined only one witness and the date of signature of the witness in the will is different from the date of execution of the Will by the testator and also date of registration.”

The petitioner-executrix filed the application before the High Court for grant of probate of the last Will and Testament dated October 24, 2013 of the Testator-Buddhadev Bose.

In the said Will, there were two attesting witnesses out of which one of the attesting witness namely Dr. Shiladitya Nandi had put the date below his name in the Will as “22.10.2013”.

The said attesting witness- Dr. Shiladitya Nandi had filed an affidavit before the High Court stating that the testator had affixed his signature in the said Will in his presence and as per the request of the testator, he had also signed in the Will as attesting witness.

However, the Will was executed on October 24, 2013 but Dr. Shiladitya Nandi one of the attesting witness had put the date in the said Will as “22.10.2013”.

The petitioner-executrix examined on commission the attesting witness- Dr. Shiladitya Nandi on February 15, 2023 wherein he has stated as follows:

“I have signed the Will on 22nd October, 2013 and believe the date to be correct.”

The court noted that the attestation of a Will means to testify of signatures of the executant and it is not a merely formality.

The court further noted that a Will should be attested by two or more witnesses and propounder should examine one attesting witness to prove the Will.

It was averred by the court that attesting witness should speak not only about testator’s signature or affixing his mark to the Will but also each of the witnesses had signed the Will in presence of the testator.

The court said:

“To be an attesting witness, it is essential that the witness should have put his signature for the purpose of attesting that he has seen the executant sign or has received from a personal knowledge of his signature. If, a person put his signature on the document for some other purpose, he is not an attesting witness.”

“In the present case, it is the case of the petitioner that the testator has executed Will on 24th October, 2013 but as per Will and the evidence of one of the attesting witness he has signed the Will on 22nd October, 2013. At the time of examination of the attesting witness, he has also clarified that date is correct. The other attesting witness was not examined.”, the court noted.

Thus, the court held that the petitioner has not proved the Will and therefore no probate can be granted.

Case Title: In the Goods of: Buddhadev Bose (Dec.) PLA 426 of 2019

Citation: 2023 LiveLaw (Cal) 85

Coram: Justice Krishna Rao

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