Probate — proof of will in solemn form — Calcutta High Court (Original Side), PLA/63/2019 (Sugato Majumdar, J., judgment dated 23/04/2025): Application for probate of the will of Rama Dutta Gupta (d. 03/07/2008), a Hindu governed by the Dayabhaga School, executed 02/06/1995 and registered with the District Registrar, Barasat, devising about 8.290 katha of land at Digha Development Scheme, Midnapore, to the petitioner joint executors — strangers unrelated to her; proceeding uncontentious (no caveat lodged) but the will was to be proved in solemn form. Suspicious circumstances persisted: the propounder (P.W.1 Abhijit Das) testified contradictorily, had no interaction with the Testatrix after 1996/1997 and could not even state her year of death correctly; the bequest to stranger-executors deprived her two sons and two daughters and was unnatural; the will was not executed in the heirs' presence; and doubt remained whether it was her last will. Of the two attesting witnesses, Atanu Bhattacharjee expired in 2022 and the whereabouts of Subrata Sengupta were unknown, with no attempt made to trace him; hence the Section 69, Indian Evidence Act, 1872 route (proof without an attesting witness) was not warranted — per Babu Singh v. Ram Sahai, [(2008) 14 SCC 754] and Kalyanaswamy v. Bakthavatsalam, [(2021) 16 SCC 543], Section 69 applies only where an attesting witness is dead, incapable or untraceable despite diligent search. Execution per Section 63, Indian Succession Act, 1925 therefore could not be said to be proved in the manner contemplated by Section 68, Indian Evidence Act, 1872 (cf. Moturu Nalini Kanth vs Gainedi Kaliprasad, [2023 SCC OnLine SC 1488]; Surendra Pal v. Saraswati Arora (Dr), [(1974) 2 SCC 600]; K. Laxmanan v. Thekkayil Padmini, [(2009) 1 SCC 354] — onus on the propounder to prove due execution, testamentary capacity and absence of suspicious circumstances). Grant of probate was refused and the application disposed of accordingly.
