Shashi Kumar Banerjee and Ors vs Subodh Kumar Banerjee Since Deceased and...

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Appeal (civil) 295 of 1960

Decision Date: 13 September 1963

Coram: P.B. Gajendragadkar, K.N. Wanchoo, N.R. Ayyangar, K. Subbarao, J.R. Mudholkar

In this matter the Court recorded that the appeal arose from a certificate issued by the Calcutta High Court and was filed by Shashi Kumar Banerjee together with several other petitioners against Subodh Kumar Banerjee, who was deceased, and after him his legal representatives. The appeal was designated as Civil Appeal No. 295 of 1960 and was decided on 13 September 1963. The case was placed before a bench composed of P.B. Gajendragadkar, K.N. Wanchoo, N.R. Ayyangar, K. Subbarao and J.R. Mudholkar, and the judgment was authored by Justice Wanchoo. The appellants identified themselves as the sons of the late Ramtaran Banerjee, hereinafter referred to as the testator, and they had been appointed executors under a will that the testator purportedly executed on 29 August 1943. The testator was approximately ninety‑seven years old at the time of his death, which occurred on 1 April 1947, and the appellants applied for probate of the contested will in the Court of the District Judge in June 1947. Their claim was that the will represented the testator’s last testament, was duly executed, and therefore should be admitted to probate. The opposition to the probate application was presented by Subodh Kumar Banerjee and Sukumar Banerjee, who were also sons of the testator, together with the descendants of Sushil Kumar Banerjee and Sanat Kumar Banerjee, two other sons of the testator who had predeceased him. The respondents contended that the will had not been properly executed or attested, that it was not genuine, that the testator lacked testamentary capacity when he signed the alleged will, and that the execution of the will had been procured by undue influence, fraudulent misrepresentation and coercion. From the pleadings, four principal issues emerged: (1) the authenticity of the will; (2) whether the will had been properly executed and attested; (3) whether the testator possessed testamentary capacity at the time of signing; and (4) whether the execution of the will was obtained by undue influence, fraudulent representation or coercion. The District Judge, after evaluating the evidence, concluded that although the testator was physically weakened, he retained a sound and disposing mind almost up to the last moments of his life, and that one of the testator’s last documents, dated 3 March 1947 and attested by one of the caveators, demonstrated his capacity. The question of undue influence, fraudulent misrepresentation and coercion was consequently abandoned, resulting in a finding favorable to the appellants. The trial judge further held that the will had been duly executed and attested, that it was genuine, and therefore granted probate, attaching a copy of the will to the appellants’ order. The respondents then appealed to the High Court, raising solely the question of proper execution and attestation of the will. Their principal contention was that, although the will bore the date 29 August 1943, the signature appearing at its foot could not have been made in that year, a view supported by the testimony of a handwriting expert. The High Court examined the expert’s evidence concerning the date of the signature, departed from the trial court’s approach of giving precedence to the attesting witnesses, and concluded, based on the expert’s opinion, that the signature could not have been placed at the foot of the will in 1943, and likewise that the names on the plan annexed to the will could not have been written in that year.

The sole issue before the High Court concerned whether the will had been duly executed and attested. The appellants argued that although the will bore the date 29 August 1943, the signature of the testator at its bottom could not have been made in that year, and they relied on the testimony of a handwriting expert to support this claim. The High Court first examined the expert’s evidence regarding the date on which the testator’s signature at the foot of the document could have been written. Unlike the trial court, which had also considered the expert’s testimony but had chosen to give greater weight to the attesting witnesses and consequently rejected the expert’s conclusion, the High Court accepted the expert’s opinion as credible. Relying on that opinion, the High Court held that the signature could not have been placed on the will in 1943 and that, similarly, the names appearing on the plan annexed to the will could not have been written in that year. Having reached that finding, the High Court concluded that the case of the propounders was thereby defeated and that the attesting witnesses must also be deemed to have given false testimony. The Court then turned to the evidence of the two attesting witnesses and, independently of its earlier view on the expert’s evidence, determined that their statements could not be relied upon. Consequently, the High Court found that the will had not been duly executed and attested, and therefore held that the requirement of proper execution had not been satisfied. On that basis, the High Court set aside the District Judge’s order granting probate, rejected the petition for probate, and reversed the earlier judgment. Because the decision involved a reversal and the sum in dispute exceeded twenty thousand rupees, the High Court issued a certificate of fitness allowing the appellants to bring an appeal before this Court. Accordingly, the sole matter now stands before this Court on the appeal filed in by the appellants seeking review. The principles governing the proof of a will are well settled, as articulated in H. Venkatachala Iyengar v. B. N. Thimmajamma and Rani Purniama Devi v. Khagendra Narayan Dev. The method of proving a will generally mirrors the proof required for any other document, except for the special attestation requirement prescribed by section 63 of the Indian Succession Act. The burden of proving the will lies with the propounder, and in the absence of suspicious circumstances surrounding its execution, proof of the testator’s capacity and signature ordinarily satisfies that burden. However, when suspicious circumstances exist, the propounder must explain them to the Court’s satisfaction before the Court will accept the will as genuine.

The Court observed that when a caveator alleges undue influence, fraud or coercion, the burden of proving such allegations rests on the caveator. Even in the absence of explicit claims of undue influence, if the surrounding circumstances raise doubts, the propounder must satisfy the Court that the will is genuine. Suspicious circumstances may relate to the authenticity of the testator’s signature, the mental condition of the testator at the time of execution, or to dispositions in the will that appear unnatural, improbable or manifestly unfair in the relevant context. Additional indications that the testator’s mind was not free may also be considered. In such situations, the Court expects that every legitimate suspicion be fully dispelled before the instrument can be accepted as the testator’s final testament. If the propounder himself participated in the execution of a will that confers a substantial benefit on him, that circumstance must be taken into account, and the propounder is required to eliminate any doubts by producing clear and satisfactory evidence. When the propounder succeeds in removing the suspicious circumstances, the Court will grant probate, even if the will appears unusual or cuts off some near relatives in whole or in part. Applying these settled principles, the Court turned to the question of whether the appellants had succeeded in establishing that the disputed will had been duly executed and properly attested.

Before examining the evidence relating to attestation, the Court set out certain preliminary facts that were not in dispute. The testator was a man of considerable wealth and a well‑known lawyer from Calcutta. Although he retired from the Bar in 1935, he continued to serve as the elected President of the Alipore Bar Association until the end of 1946. He died at the advanced age of ninety‑seven, and he was approximately ninety‑three years old when the will in question is said to have been executed. He headed a large family comprising seven sons, five daughters and numerous grandchildren. His wife had died on 2 July 1945, and two of his sons, Sushil and Sanat, had predeceased him. Prior to his death, the testator had already provided for his heirs by executing a series of documents. His method involved granting a perpetual lease of a property to a chosen beneficiary; subsequently, the reversionary interest in that property was also transferred to the same child. By this scheme, he disposed of property valued at roughly sixty lakh rupees, allocating half of that amount to the propounders (the appellants) and the other half to the caveators (the respondents). The disputed will concerns the remaining property, which is said to be valued at only three lakh rupees. The will was witnessed by two individuals, namely Manmathanath Mookerjee and Sambhunath Munshi. The entire document is in the testator’s handwriting and contains corrections in various places, and the corrections have been

It was noted that the testator had initialed the document. The body of the will had been written by the testator during the period from January to March 1943. In several places the draft contained blanks, especially where the numbers of immovable properties to be disposed of were to be filled in and, in other instances, where the name of the specific legatee intended to receive a particular property was to be entered. The record further showed that the testator contracted a severe illness in July 1943, at one stage appearing to be on the verge of death. After recovering from that serious illness, the testator is alleged to have signed the disputed will on 29 August 1943. There was no dispute that the signature appearing at the bottom of the will was that of the testator. Although at one time a question was raised as to whether the date “29‑8‑1943” written beneath the signature was in the testator’s own hand, the respondents failed to establish that the date was not penned by the testator. The dispositions contained in the will were made in favour of the testator’s various sons, grandsons and his wife. Wherever the testator had deprived any of his descendants of a benefit under the will, he had set out reasons for such deprivation. The will further recited, in its concluding portion, that the testator had signed it in the presence of the attesting witnesses, that the witnesses had observed the testator signing it, and that the witnesses had attested the will in the presence of the testator and of each other. In view of these facts, the High Court found that the will could not be characterised as an unnatural document. No evidence was produced to show that the propounders, namely the appellants, had taken any part in the execution of the will. Later testimony of the attesting witnesses indicated that the testator had cautioned them not to speak about the will and to keep the fact of their attestation secret. The issue of influence, fraudulent misrepresentation and coercion was, according to the District Judge, “clearly, categorically and unconditionally abandoned” by the respondents. It could also not be doubted, on the basis of the evidence, that the testator was in a sound and disposing state of mind and possessed full testamentary capacity not only on 29 August 1943 when the will purportedly was executed, but almost up to the last day of his life. He had executed numerous documents in 1944, 1945 and 1946, the final such document being executed on 3 March 1947, in which one of the caveators acted as an attesting witness. In the High Court no argument was raised against the District Judge’s finding that the testator retained full testamentary capacity almost until his death. Moreover, the fact that the will is a holograph will and admittedly in the hand of

The will was written entirely by the testator, and in its final paragraph the testator declared that he had signed the document in the presence of the witnesses, that the witnesses had signed it in his presence, and that each witness had signed in the presence of the other. These statements created a strong presumption that the will had been executed and attested in a regular manner. On the basis of those facts, the Court observed that there were hardly any suspicious circumstances attached to the will, and that only minimal evidence would be required to demonstrate that the will had been properly executed and attested. The Court further noted that there was no doubt about the authenticity of the testator’s signature, since the signature appearing at the foot of the will had been admitted to be his. Likewise, the testator’s mental condition was not in doubt; he appeared to possess full testamentary capacity at least until March 1947, even though he was an elderly man of approximately ninety‑seven years when he died on 1 April 1947.

The Court explained that the dispositions made in the will were not unnatural. Wherever the testator had excluded any of his descendants from a share of the remaining property, he had provided reasons for doing so. Moreover, the testator had already disposed of the bulk of his estate, valued at about sixty lakh rupees, and the will dealt only with a modest residue of approximately three lakh rupees. Nothing indicated that the dispositions resulted from anything other than the testator’s free will. The Court also emphasized that the appellants, who were the propounders of the will, had played no role in its execution, and therefore there were no suspicious circumstances arising from their involvement. The only requirement, the Court said, was to formally prove the execution, and this was facilitated by the admission that the signature on the will was genuine and that the entire document was in the testator’s handwriting.

In this context, the Court turned to the evidence of the two attesting witnesses and the handwriting expert, whose opinion alone had led the High Court to conclude that the will had not been duly executed and attested. Before addressing the testimony of those three individuals, the Court considered another relevant circumstance. It was established that, sometime after the will had been executed, the testator placed the will in a closed envelope, wrote the instruction “Soshi preserve this my will” on the top of the envelope, and signed that instruction. The writing and the signature on the envelope were also admitted to be in the testator’s hand. The testator’s son Soshi retained the envelope, and after the testator’s death Soshi and his brother Sunil took the envelope to Birendra Nath Lahiri, an advocate. The advocate examined the sealed envelope without opening it and advised the brothers to give notice to all of the testator’s heirs and to fix a date and place for opening the envelope. The brothers followed this advice, providing the advocate with the names of all the heirs, and the advocate issued a notice to every heir, including the caveators‑respondents, informing them that the last will and testament had been delivered to him and that he would open it on 8 May 1947 between 7 p.m. and 7:30 p.m., requesting their presence in person or through an agent to witness the opening. Two heirs, Sukumar Banerjee and Provat Kumar, replied to the notice but did not attend the scheduled time. The only persons who actually attended were the three appellants and Kartick Mukherjee, the testator’s son‑in‑law, husband of his daughter Nihar Bala. After the attendance, the envelope was opened, and the Court noted that none of the parties claimed that the will, at the moment of opening, was in any condition different from that in which it had been sealed.

In this matter the advocate arranged a specific place and time for the opening of the envelope that contained the testator’s will. The parties asked the advocate to issue a notice and supplied him with the names of every heir. Accordingly, the advocate issued a notice addressed to all the heirs, including the caveators who were respondents, informing them that the testator’s last will and testament had been delivered to him. The notice stated that the envelope would be opened on 8 May 1947 between 7 p.m. and 7:30 p.m., and it requested that each heir be present at the advocate’s premises either personally or through an authorized agent to witness the opening.

The notice elicited replies from two heirs, namely Sukumar Banerjee and Provat Kumar, but neither of them attended the appointed time and place. The only individuals who were present at the scheduled opening were the three appellants and one Mr Kartick Mukherjee, who was the son‑in‑law of the testator and the husband of a daughter named Nihar Bala. After the attendance was recorded, the envelope was opened. It is agreed that at the moment of opening the will was not in the same condition as when it had been filed in court together with the probate application. Nevertheless, when the envelope was opened on 8 May 1947, the document displayed the testator’s signature as well as the attestations of the witnesses who had signed as attesting parties. This circumstance significantly supported the genuineness, proper execution and valid attestation of the will, and it possibly explains why the respondents did not advance a positive claim that the will had been attested after the testator’s death.

The principal issue before the Court concerned the due execution and attestation of the will. The respondents contended that the date printed on the will, which purports to be the date of execution, was not the actual date on which the testator executed the will; they argued that the will was executed at a much later time and therefore was not properly executed or attested. Consequently, the Court needed to examine the testimony of the attesting witnesses and what the counsel for the appellants referred to as the intrinsic evidence contained within the will itself. The intrinsic evidence demonstrated that the will was written in the testator’s own hand and that his signature on the document was not disputed. The respondents primarily relied on the testimony of a handwriting expert. According to that expert, there was no tremor in the testator’s handwriting during 1943, 1944 and 1945, whereas a tremor became apparent from 1946 onward and increased progressively until the testator’s death in 1947. The expert further observed that the body of the will was written without tremor, while the signature at the bottom of the will and the initials placed in the margin on the corrections displayed evidence of tremor.

In this case the Court observed that the handwriting expert’s testimony that the signature on the will showed a tremor implied that the document could not have been signed in August 1943 and must instead have been executed after 1945. The Court noted that it would later examine the expert’s evidence, but it was already clear that even the respondents admitted the testator had signed the will sometime in 1946 and yet they could not explain why he would have back‑dated it to August 1943. The Court therefore turned to the finding of the District Judge that the testator retained full testamentary capacity almost up to his death, certainly until March 1947, a finding that had not been contested before the High Court and which therefore assumed great importance. The Court reasoned that if the testator had not actually signed the will in 1943 as it purported, and if, as the Court believed, he possessed full mental capacity in 1946 and indeed signed the will that year, there was no logical reason for him to date the instrument 1943 instead of the actual year of signing. Consequently, the argument based on the expert’s tremor theory was seen as providing no assistance to the respondents, because a person of sound mind and judgment would not ordinarily antedate a will he signed late in 1946. The Court further stated that once it is accepted that the signature on the will belongs to the testator, the hypothesis that he deliberately back‑dated it could be accepted only if the expert’s evidence were so persuasive that the extreme improbability of such an act could be safely discarded. Turning then to the intrinsic evidence contained in the will itself, the Court identified six circumstances that supported the conclusion that the stated execution date of August 29 1943 was correct and that a will containing the present provisions could not have been prepared in late 1946. The first circumstance was that the will made a provision for the testator’s wife and required that she be consulted in the event of any dispute among the three executors. Since it was not disputed that the testator’s wife died in 1945, it would be highly strange—if not impossible—to find a clause in a document executed after her death that both provided for her and mandated her consultation in executor disagreements.

In the will the testator stated that his daughter Sushila was living with her sons in her own house. The record shows that Sushila moved back to live with her father in 1945, shortly before her mother died, and she remained with him until the testator’s death. Given these facts, the Court found it highly improbable that the testator, who had already made corrections to the will before signing it, would have ignored the need to correct this particular statement. The third circumstance presented concerned Nihar Bala, another daughter of the testator, who was married to Kartick Mukherjee. The will described her husband as a Senior Stock Verifier receiving a monthly salary of Rs 300. Evidence revealed that Kartick retired early in 1946 and that, in January 1947, Nihar Bala requested a monthly allowance which the testator subsequently provided. The Court observed that if the will had been executed in late 1946, it would have been unlikely for the testator to record a salary of Rs 300 for a son‑in‑law who had already retired. The fourth circumstance related to a statement in the will that Shivendra, the son of another daughter, Rani Devi alias Renuke, was preparing for his B A examination. It was not contested that Shivendra had passed his B A examination in 1944. Consequently, the Court concluded that a will signed in 1946 could not logically contain a reference to Shivendra preparing for an examination that he had already completed, and therefore the will must have been signed in 1943 as it purported. The fifth circumstance involved a clause indicating that Sukumar’s wife was alive at the time the testator deprived Sukumar of any share in the property, and that Sukumar and his wife had no children and that Sukumar’s income was sufficient for a comfortable life. There was no dispute that Sukumar’s wife died in October 1943. The Court therefore held that a will signed in 1946 could not have accurately described Sukumar’s wife as being alive; such wording could only be consistent with a signing date of August 1943. The final circumstance noted that the will devised premises No 76 Hazara Road in favor of Sashi, yet on 26 January 1946 the testator had already transferred that property to Bimal. Accordingly, the Court said that a will executed in late 1946 could not contain a bequest of property already alienated. Bringing these points together, the Court expressed the view that the cumulative intrinsic evidence strongly indicated that the will was signed in August 1943, making all the recitals in the will correct and appropriate. The respondents, however, argued that most of these circumstances did not address the core issue because they did not affect the substantive dispositions made by the will.

In this case the submissions argued that the specific statements contained in the will could not affect the overall dispositions made by the testator. It was asserted that the will had certainly been drafted between January and March 1943, a period during which the recitals would have been accurate, and that the testator might simply have omitted any correction when he finally signed the document in late 1946. Although such a scenario is technically conceivable, it was found to be unsatisfactory. The Court held that it was highly improbable that the testator would have failed to amend those recitals if he truly signed the will in 1946, especially because he had made other corrections. The probability therefore pointed to a signing date of 1943, as the will purports. The High Court had admitted that the respondents were unable to explain how those recitals entered the will, and the Court observed that this inability supported the appellants’ case that the will was prepared between January and March 1943 and subsequently signed in August 1943. While some recitals were of minor importance, the Court identified two matters that could not logically have been included in a will signed in late 1946: first, a provision for the wife who had undeniably died in 1945; and second, the disposition of property numbered 76 Hazara Road. The argument that the testator might have overlooked these matters in 1946 was rejected, because there was no indication of any lapse on his part that would have permitted such errors. Consequently, the Court agreed with the appellants that the surrounding circumstances strongly indicated that the will was indeed signed in August 1943 as alleged.

The discussion then turned to the oral testimony of the two attesting witnesses and the evidence of a handwriting expert. The Court respectfully observed that the High Court erred in first giving precedence to the expert’s opinion and concluding, on that basis, that the will could not have been signed in 1943. In a case of this nature, where there were virtually no suspicious circumstances and where the totality of the facts pointed toward proper execution and attestation, such a approach was misplaced. It was noted that after evaluating the expert’s evidence and declaring the case of the propounders closed, the High Court nevertheless proceeded to assess the testimony of the attesting witnesses, asserting that this assessment was independent of its earlier view on the expert’s evidence. The Court therefore decided to first consider the evidence of the two attesting witnesses, to determine whether, given the holographic nature of the will and the absence of any substantial doubt, the will could be deemed duly executed and attested.

In the present case the intrinsic evidence contained in the will together with the surrounding circumstances indicated that the document had indeed been executed at the time it professed, and therefore that evidence could be relied upon. The two persons who attested the will were Manmathanath Mookerjee and Sambhunath Munshi. Manmathanath Mookerjee was the father‑in‑law of Sunil, one of the individuals who sought to prove the will, and consequently he possessed a clear interest in supporting their claim. It may be conceded that, in certain respects, he did not present himself with complete candour, especially concerning his dealings with his son‑in‑law. Nevertheless, he was described as a respectable individual and there was no indication that Sunil was involved in the execution of the will or derived any substantial benefit from it; the only advantage was a modest increase in the share of one son, Sukumar, who had been excluded from the will, a circumstance that similarly affected the shares of the other descendants of the testator. Manmathanath Mookerjee was examined on commission and thereafter subjected to an extensive cross‑examination, at times on matters only loosely related to the core issue of his attestation of the disputed will. Despite his personal interest in Sunil and the unsatisfactory nature of some of his answers regarding his relationship with Sunil, the Court found no sufficient ground to reject his testimony that he had attested the will in the presence of the testator, that the testator had signed the document while both he and Sambhunath Munshi were present, and that the two witnesses had signed in each other’s presence. The Court then turned to the reasons why the High Court had declined to place reliance on the evidence of Manmathanath Mookerjee and Sambhunath Munshi. Manmathanath explained that on the day in question he had gone to inspect a house belonging to his father’s debtor estate on Rustomjee Street, which was near the testator’s residence. He added that it was his habit, whenever he found himself in the neighbourhood of the testator and had spare time, to visit the testator. In a similar vein, Sambhunath Munshi testified that he had visited the testator to deliver glucose and Horlicks, items that were difficult to obtain at that time, after being asked by the testator to procure them. Consequently, the presence of both attesting witnesses at the moment the testator requested them to attest the will was by chance. The respondents argued that a person wishing to execute a will would normally summon witnesses, and that it was implausible to accept that the witnesses were merely incidentally present and that the testator merely exploited their accidental presence. The Court noted that while it is more common for witnesses to be summoned, there is nothing impossible about a testator taking advantage of witnesses who happen to be present, especially when they were known to him beforehand.

It was observed that a person usually calls witnesses when he intends to execute a will, yet it is not impossible for a testator to take advantage of the accidental presence of individuals who happen to be nearby. In the present case, the two attesting witnesses were acquaintances of the testator who were present by chance, and the testator asked them to attest the will. If either witness had been untruthful, they could have simply claimed that they had been summoned by the testator, and no one would have been able to refute that assertion. Consequently, the court concluded that the testator merely exploited the fortuitous appearance of these two well‑known persons and that there was no indication of any relationship between Shambunath Munshi and Manmathanath Mookerjee, or between Shambunath and Sunil and Sashi, which would have compelled Shambunath to give false evidence as an attesting witness.

The parties emphasized a slight inconsistency in the testimonies of the two witnesses regarding the time at which the will was executed. According to Sambhunath, the execution occurred at about three o’clock in the afternoon and required approximately forty‑five minutes for the testator to fill in blank spaces and make corrections. Sambhunath further stated that he arrived at the testator’s house at around noon, and that Manmathanath arrived shortly thereafter. In contrast, Manmathanath testified that he arrived at the house between twelve and three‑thirty p.m., after which the testator brought the will, filled in the blanks, made corrections, and then proceeded with execution and attestation. Under Manmathanath’s account, the execution and attestation would have taken place at roughly four‑thirty p.m. Moreover, Sambhunath reported that he remained at the location for two and a half hours and that Manmathanath’s arrival followed only a short interval after his own. Although these statements differ concerning the precise timing, the court held that the discrepancies are not sufficiently grave to undermine the credibility of the witnesses. Both accounts agree that the execution occurred on the afternoon of 29 August 1943, with Sambhunath placing it between one p.m. and three‑thirty p.m., and Manmathanath situating it between three p.m. and five p.m. Considering that the witnesses were recalling events eight or nine years later, the modest variance in time does not erode the evidential value of their testimonies. Importantly, the testimonies consistently indicate an afternoon execution, which contrasts with a scenario where one witness claimed a morning execution and another a night execution—a situation that would likely raise serious doubts.

It was also contended that it would be highly unlikely for Manmathanath Mookerjee to inspect his house on Rustomjee Street during an afternoon in the month of August, given the inconvenience such a visit might present to a person of his standing.

The Court observed that the objection concerning the inconvenience of a person of Manmathanath’s standing visiting a particular house in the month of August should not by itself discredit his testimony. Even if the time were inconvenient for someone of his social position, the Court found no reason to reject his statement that he actually went to the house for a specific purpose at a specific hour. The Court also considered a criticism relating to Manmathanath’s admission that he did not know which room his own daughter occupied in the testator’s residence. The Court held that this remark did not impair his credibility, because it is not contested that the witness, being the father‑in‑law of the testator’s son, regularly entered the testator’s house whenever circumstances required. Another point of criticism concerned whether Manmathanath had written the word “witness” on the plan that was annexed to the will. When questioned on this issue, he replied that he could not recall, and the Court regarded this answer as perfectly understandable given that the evidence was being offered after eight or nine years. Further attention was drawn to certain minor discrepancies between the testimonies of Manmathanath and Sambhunath Munshi regarding whether some children had visited the house during the period in question and, if so, at what times. The Court characterized these divergences as inconsequential details that could not undermine the core evidence offered by the two witnesses.

Regarding Sambhunath Munshi, the Court noted that he appeared to have been on amicable terms with the testator, having known him for several years. The only allegation made against him was that he was a tenant of Manmathanath. However, the Court observed that Sambhunath Munshi held the position of tax collector with the Calcutta Corporation, and therefore it was unlikely that he would be dominated by Manmathanath or by Manmathanath’s son‑in‑law solely because he rented a room in Manmathanath’s house. Apart from the minor discrepancies already discussed, the Court found no substantive reason to reject his testimony, and concluded that those inconsistencies did not detract from the overall truthfulness of his statements. Taking a comprehensive view of the evidence presented by both Manmathanath and Sambhunath Munshi, and considering the circumstances previously outlined, the Court expressed the opinion that the combined testimony was reliable and sufficiently demonstrated that the contested will had indeed been executed and attested.

The discussion then turned to the evidence of the handwriting expert. In the expert’s report, it was stated that despite the testator’s advanced age, his control over the pen remained excellent in the year 1943. The specimen of writing from that year exhibited strength, ease and a level of pen control that was rarely observed even in a man of approximately ninety‑two years of age. The report further indicated that any alteration in the testator’s pen control between 1943 and 1945 was so slight as to be virtually indiscernible. Nevertheless, the report observed that in 1946 the pen control suddenly deteriorated, and the hand

The report observed that the handwriting of the testator had begun to shake, causing deviations from the normal trajectory of the pen strokes. It further stated that the principal portion of the will, which was purportedly executed in 1943, displayed a strong command of the pen and appropriate pressure, characteristics that matched the writing specimens from that same year. In contrast, the additions, the signature at the bottom of the will, and the marginal entries appeared to have been made later, specifically in late 1946, after the testator had lost control of the pen.

When the expert gave evidence, he altered several of his earlier conclusions. He now asserted that the deterioration of the testator’s signature began in March 1946, explaining this change by acknowledging that many signatures dated January 1946 showed no evidence of tremor. Although his original report had claimed that tremors started suddenly in 1946, he conceded during testimony that, in old age, tremors generally develop gradually and worsen over time. The expert was cross‑examined about pre‑1946 signatures that exhibited tremor and about post‑1946 signatures that did not. He had to admit that some of the signatures presented to him did not fit the pattern he had described—namely, that pen control was maintained up to March 1946 and then lost thereafter. To account for these irregularities, he introduced the concepts of “pen pressure” and “angularities,” arguing that they were distinct from a loss of pen control. Nevertheless, it was undeniable that certain signatures up to March 1946 displayed tremor, while some signatures after that date showed little or no tremor. The Court referred to exhibits E‑36 and 23/1 of 1943, C‑21 and E‑53 of 1944, and E‑75 of 1945, all of which clearly demonstrated tremor. Exhibit C‑38, dated 30 January 1946, also unmistakably showed tremor and fell within the period before March 1946, the point from which the expert claimed tremor began. Conversely, exhibit E‑100 of June 1946 was acknowledged by the expert himself as displaying minimal tremor. The Court noted that the testator was already an extremely elderly man, about ninety‑three years old, in 1943, and that occasional variations in the firmness of his signatures could be partially explained by his advanced age. Aligning with the view of the District Judge, the Court observed that no two signatures written in ordinary circumstances are identical; differences can arise from factors such as the type of pen used, the level at which the signature is made, and the amount of space available. Consequently, it is challenging to generalise from such evidence, and relying on it to reach a decisive conclusion would be imprudent. After reviewing all the signatures from 1943, the Court concluded that as the testator’s age increased his writing became

In this case the Court observed that the testator’s handwriting became increasingly unsteady as his age advanced, yet the record contained instances of unsteady signatures both before 1946 and of relatively steady signatures after 1945. The Court noted that the various signatures appearing on the will and on the auxiliary writings used to fill gaps after the main body of the will had been drafted between January and March 1943 illustrated this mixed pattern. The full signature placed at the foot of the will exhibited some tremor, whereas a number of marginal signatures were partial and displayed differing degrees of tremor; some showed little or no tremor while others did. According to the testimony of the attesting witnesses, the plan annexed to the will had been signed at the same time as the will itself. The expert, however, testified that the testator’s signature on the plan demonstrated superior pen control compared with the signature at the bottom of the will, which the expert described as showing a loss of pen control. The Court found it noteworthy that, assuming both signatures were made on the same day—whether in 1943 or later in 1946—the signature on the will appeared to reflect failing pen control while the signature on the plan did not reveal any tremor. Consequently, the Court concluded that the expert’s evidence, taken in these circumstances, was not decisive and could not establish that the signature at the bottom of the will could not have been executed on 29 August 1943, the date it purportedly bore.

The Court further considered that the will had been executed in August 1943 shortly after the testator’s recovery from a serious illness, and any occasional tremor evident in his writing on that day could plausibly be attributed to his recent health condition. Nevertheless, the Court’s attention was drawn to signatures dated 1 September 1943—just three days after the alleged execution date—which displayed minimal tremor, as shown in Exhibit C/15. While the September 1 signature was not as firm as some later signatures made in the same month, the overall assessment led the Court to reject the contention that the bottom‑of‑the‑will signature could not have been made in August 1943 and must instead have been produced in late 1946. The Court determined that, given the totality of the evidence, the expert’s testimony was not conclusive enough to defeat the attesting witnesses’ direct testimony and the surrounding circumstances indicating that the will was indeed signed in 1943 as claimed. Moreover, the Court emphasized that expert testimony on handwriting constitutes opinion evidence, which seldom, if ever, can replace substantive evidence, and that such opinion must ordinarily be corroborated by clear direct or circumstantial evidence before it can be acted upon.

In considering the need for corroboration, the Court observed that any expert opinion must be supported either by clear direct evidence or by convincing circumstantial evidence. In the facts before the Court, the balance of probabilities weighed against the expert’s conclusion and aligned with the direct testimony of the two attesting witnesses, whose statements the Court found to be wholly consistent with the documents in question. It was undisputed that the envelope which contained the will bore the testator’s signature and an endorsement reading “Soshi, preserve this my will.” The Court noted that, according to the person named Soshi, this sealed envelope was handed to him toward the end of December 1945 or at the beginning of January 1946, leading to the reasonable presumption that the testator’s signature and the endorsement were made at the same time. Upon close examination of the endorsement, the Court observed a slight tremor or deviation in the words “Soshi” and “preserve,” whereas the testator’s own signature showed very little such irregularity. This observation demonstrated that even when writing is executed concurrently, tremor may appear in some words and not in others. The Court further considered that, in later periods such as the latter part of 1946 and throughout 1947, the tremor became more pronounced and tended to be present throughout the writing.

The Court also highlighted that the expert admitted his evidence was based solely on visual assessment, stating that only a chemical analysis could definitively determine the period to which a particular writing belongs. The expert further confessed that no chemical tests were performed in the present case, rendering his opinion less valuable than it might have been had such tests been carried out. The Court cited Osborn’s treatise “Questioned Documents,” page 464, which remarks that even chemical tests for determining age are “a mere excuse to make a guess and furnish no reliable data upon which a definite opinion can be based.” In light of these circumstances, the Court held that the expert’s mere opinion could not outweigh the positive evidence of the attesting witnesses, especially where no suspicious circumstances existed. Consequently, the Court found that the expert had not established that the signature at the bottom of the will could not have been made on 29 August 1943 as testified by the witnesses. Accepting the District Judge’s view that “it would be indeed dangerous to base a decision upon such inconclusive data,” the Court concluded that the will had been duly executed and attested as alleged. Accordingly, the appeal was allowed, the order of the High Court was set aside, and the appellants were entitled to probate with a copy of the will attached.

The appellate authority affirmed that the judgment originally rendered by the District Judge was to be reinstated in its entirety. In doing so, the higher court expressly directed that the relief granted by the District Judge should continue to be effective, thereby reversing the intervening order that had been set aside. Furthermore, the appellate decision provided that the parties who had initiated the appeal, referred to as the appellants, were to be awarded their legal expenses for the whole course of the proceedings. The term “throughout” was understood to cover all costs incurred from the commencement of the suit in the lower court, through the trial stage, and including any costs associated with the appellate process itself. Accordingly, the appellants were entitled to recover their attorney’s fees, court fees, and any other disbursements that had been lawfully incurred during the entire litigation timeline. This cost award was to be made against the respondents, ensuring that the appellants would not bear the financial burden of defending the matter after the appellate court’s decision to restore the District Judge’s order.