Delay In Filing Probate Raises Suspicion; But It Does Not Defeat Claim Once Execution And Attestation Are Proved: Calcutta High Court

The Court was hearing an appeal challenging a decree granting probate of a testamentary instrument, where the appellants questioned both the genuineness of the will and the legal effect of the delay in seeking probate.

A Division Bench of Justice Tapabrata Chakraborty and Justice Reetobroto Kumar Mitra observed: “Delay in approaching the court for the grant of probate may arouse the suspicion of the court and may raise a presumption of suspicious circumstances. However, this is a rebuttable presumption, rebuttable by proving due execution and attestation. Thus, once the delay has been explained and attestation and execution proved, the question of suspicion lingering on the ground of delay is unwarranted. Delay in a probate application cannot be construed as an absolute bar, but as a suspicious circumstance which can be explained”.

Background

The dispute concerned a will executed decades earlier by a testator who had left behind heirs from two marriages. Although executors were appointed under the will, probate was not immediately sought. A subsequent attempt to obtain probate was withdrawn as the parties explored an amicable settlement. When such efforts failed, a fresh application for probate was filed.

The objectors challenged the will on multiple grounds, including alleged fabrication, lack of testamentary capacity, undue influence, suspicious circumstances, and delay. It was also argued that the properties were ancestral and that the testator lacked authority to dispose of them by testamentary instrument.

The trial court rejected these objections after recording evidence and granted probate, prompting the appeal before the High Court.

Court’s Observation

The High Court reiterated that the function of a probate court is confined to determining whether the will represents the genuine last testament of the deceased and whether it was executed in accordance with law. It clarified that speculative allegations or conjectures cannot displace a will that has been duly proved.

Upon evaluating the record, the Bench found consistent oral evidence demonstrating that the testator was in sound physical and mental condition at the time of execution. Witness testimony remained unshaken in cross-examination and established that the execution was voluntary and conscious. The Court therefore rejected the plea that the testator lacked testamentary capacity.

On proof of execution and attestation, the Court held that the requirements of law were satisfied. Although the attesting witnesses were no longer alive, their signatures were identified through competent evidence. Such proof was held sufficient to establish due execution under the governing legal principles.

Addressing the contention of suspicious circumstances, the Bench observed that unequal distribution of property or deviation from expected inheritance patterns does not by itself render a will suspicious. The Court noted that natural heirs had received benefits either under the will itself or through related inter vivos arrangements, which weakened the allegation of unfair exclusion.

The Court also examined documentary materials indicating that certain family members had prior knowledge of the will and had acted upon it in earlier transactions. This conduct, the Bench observed, was inconsistent with their later challenge to the document’s validity.

Turning specifically to delay, the Court held that the right to seek probate is a continuing right and does not necessarily arise immediately upon the death of the testator. The cause of action may arise when it becomes necessary to establish the authority of the executor or the validity of the will.

The Bench emphasised that delay may raise suspicion, but such suspicion is not conclusive and must yield once the propounder proves execution and attestation and offers a plausible explanation for the delay. In the present case, the delay was explained by attempts at family settlement, which the Court accepted as a legitimate and reasonable justification.

Conclusion

The High Court concluded that the objections raised against the will lacked evidentiary support and that the document had been duly proved in accordance with the law. Finding no error in the trial court’s reasoning or conclusion, the Court upheld the decree granting probate and dismissed the appeal.

Cause Title: Raja Shah & Ors. v. Kowshik Show & Ors. (Neutral Citation: 2026:CHC-AS:276-DB)

Appearances

Appellants: Bhaskar Ghosh, Senior Advocate; Shila Sarkar, Advocate.

Respondents: Saptangshu Basu, Senior Advocate; Partha Pratim Roy; Dyutiman Banerjee; Paulumi Chakraborty, Advocates.

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