The Calcutta High Court has indeed made observations regarding thumb impressions by literate testators.
“The vigilance of a testamentary court cannot be converted to paranoia” Calcutta High Court (Appellate Side) dismissed an appeal filed by daughters challenging probate of their father’s Will. A Division Bench of Justice Sabyasachi Bhattacharyya and Justice Uday Kumar upheld the grant of probate in favour of the testator’s sons, holding that once the statutory requirements under Section 63 of the Indian Succession Act are fulfilled, suspicion cannot be manufactured from trivial circumstances.
The litigation revolved around the last Will of Badal Chandra Naskar dated January 7, 2004, where he bequeathed all properties to his two sons, excluding his five daughters. The daughters opposed the probate, claiming the Will was forged and surrounded by suspicious circumstances. They argued that their father, a literate and reputed law clerk, would not have used a thumb impression; that the Will was not read over to him; that he was abducted and coerced; and that another Will existed, allegedly inconsistent with the disputed one.
The trial court granted probate to the sons, prompting the daughters to file the present appeal. the Bench squarely rejected the suspicion arising from the thumb impression.
“Section 63(c) of the Succession Act categorically permits either his signature to be put or his mark to be affixed by the testator on the Will… in view of sufficient explanation having been furnished… such fact itself does not create any suspicious circumstance.”
The Court noted that the testator was 86 years old, with trembling fingers, and that the use of a thumb impression instead of signature was natural. His background as a law clerk of Sealdah Court made it evident that he was conscious of the solemnity of the act.
On the broader standard of proof, the Court reminded that suspicion cannot be allowed to overwhelm genuine testamentary intent:
– Thumb Impression vs. Signature: The Court noted that adverse conclusions should not be drawn against a literate person for affixing their thumb impression instead of signing documents related to property transactions.
– Genuineness of Deed: The genuineness of a cancellation deed cannot be questioned merely because a literate person has affixed their thumb impression instead of signing the document.
– Expert Opinion: In cases where the testator’s thumb impression is verified by an expert, it adds weight to the document’s authenticity.
– Health Condition and Capability: The Court considered the testator’s health condition and capability to execute the deed, but emphasized that these factors should not overshadow the evidence presented.
