CHINU RANI GHOSH VERSUS SUBHASH GHOSH & ORS, 2025 LiveLaw (SC) 56

By Adv. Alisha Patel
December 18, 2025
Judgment Analysis

Mentored by : Adv. Aameer V. kale

Facts

Certain land was allotted to Tarani Ghosh, Nabin Chandra Ghosh (both sons of Chandra Ghosh) and Kanaki Bala Ghosh (wife of Nabin Chandra Ghosh) by the State Government which by compromise was divided into Schedule A, Schedule B(i) and Schedule B(ii), respectively. One of the brother i.e. Tarani Ghosh passed away leaving behind the wife and children as legal heirs of Schedule A property, which are parties in the case. The other brother, Nabin Chandra Ghosh passed away leaving behind his widow wife Kanaki Ghosh as a sole heir of Schedule B(i). After a period of time Kanaki Bala Ghosh died issueless, leaving behind the plaintiffs and defendants of the case as her sole legal heir according to the Hindu Succession Act, 1956, making all of them joint owner of the entire schedule A, B(i) and B(ii) land, in equal shares without any formal partition. The plaintiffs requested the defendants several times for the partition of the Schedules, but the defendants refused after repeatedly delaying it. The Plaintiffs filed the suit in the Court Civil Judge Senior Division, Gomati Udaipur seeking a decree for the partition of the suit land into equal shares i.e. 1/6th share, which the Trial Court granted partition of the suit property by metes and bounds. During this trial the defendant No. 1 relied upon the unregistered Will executed by Kanaki Bala Ghosh and a Nabadi Patra (deed of relinquishment) during her lifetime which were in favor of defendant No. 1 with respect to Schedule B(i) and (ii) lands. The Trial Court also ruled that defendant No.1 did not fulfill the requirement to prove the Will, as per Section 68 of the Evidence Act, 1872, in conjunction with Section 63 of the Indian Succession Act, 1925. After which the defendant No. 1 filed a first appeal in Tripura High Court challenging the judgment and decree given by the Trial Court. The High Court allowed the appeal and set aside the judgment and decree passed by the Trial court stating that the Will executed by Kanaki Bala Ghosh is valid in the eyes of law. Hence the Plaintiffs appealed in the Supreme Court against the order of the High Court.

Issues:

Attestation of the Witnesses.
Proving the legality of a Will.
Significance of No. of witnesses attestation while executing the Will and witness stepping into the box to prove that there was execution of Will.
Scribe’s Role in Will Execution.

Rule of Law:

Section 63 of the Indian Succession Act: Chapter III of the Indian Succession Act deals with the Execution of Unprivileged Wills. It states that every testator except a soldier employed in an expedition or engaged in actual warfare or an airman employed or engaged or a mariner at sea, should execute the Will according to the following rules:^[1]

The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his directions.^[2]
The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.^[3]
The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.^[4]

Section 68 of the Evidence Act: The section envisages ‘Proof of execution of document required by law to be attested’. It states that ‘If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:^[5]

[Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.] [Inserted by Act 31 of 1926, Section 2.]’.^[6]

^[1] Section 63, Indian Succession Act, 1925.

^[2] ibid.

^[3] ibid.

^[4] ibid.

^[5] Section 68, Evidence Act.

^[6] Section 68, Evidence Act.

Arguments:

(i). Appellant Counsel:

The Ld. Counsel of the Appellant submitted that The High Court erred in law by overturning the findings of the Trial Court concerning the proof of execution of the Will. Furthermore, the Ld. Counsel in this context, argued that a Will is a document that necessitates the attestation of at least two witnesses, and its execution must be proven in accordance with the law, specifically under Section 68 of the Evidence Act. According to clause (c) of Section 63 of the Succession Act, at least one attesting witness is required to testify in court to confirm the execution and attestation of the Will.

The appellant’s counsel focused on the evidence of DW-3, Shri Nilmohan Sarkar, who is one of the attesting witnesses to the Will. He claimed in his affidavit that he attested the will in presence of the other witnesses when Smt. Kanaki Bala Gosh executed it. But he failed to provide the details about the identity of the other attesting witnesses and these details were not drawn out during his cross-examination. The appellant counsel also pointed out the evidence of DW-1, the propounder of the Will. DW-1 stated that the Will was executed by Smt. Kanaki Bala Ghosh in the presence of “attesting witnesses” in his affidavit. But, DW-1 failed to identify the attesting witnesses in the Will. Also no such details were provided by him during his cross-examination to prove the presence of the attesting witnesses.

The appellant’s counsel argued that the Will was not proven in accordance with Section 68 of the Evidence Act and Section 63(c) of the Succession Act. He contended that the High Court erred in reversing the Trial Court’s findings, which had rejected the Will and granted a 1/6th share in both A and B scheduled properties to the parties. The appellant’s counsel further stated that the High Court’s reversal was legally incorrect and requested that the impugned judgment be set aside, and the plaintiff(s) be granted the relief of a 1/6th share in both properties.

(ii) Respondent Counsel:

The senior counsel for respondent No.1 highlighted that the Will executed by Smt. Kanaki Bala Ghosh clearly lists three witnesses: Shri Gopal Debnath, Nilmohan Sarkar (DW-3), and Maran Debnath. Additionally, Shri Subajit Roy, the scribe, was also a witness. Counsel pointed to the evidence of DW-2, who testified in his affidavit that he drafted the Will, read its contents to Smt. Kanaki Bala Ghosh, and she placed her thumb impression on each page, after which he signed as a witness. Counsel argued that DW-2 qualifies as an attesting witness, thus fulfilling the requirements of Section 63 of the Succession Act and Section 68 of the Evidence Act, and urged that the appeal be dismissed.

Analysis:

The Ld. Court found that in the testament of Smt. Kanaki Bala Ghosh i.e. the Will, the names of the Shri Gopal Devnath, Shri Nilmohan Sarkar and Shri Maran Dev Nath have been noted. In contrast, the scribe (in this case, Shri Subajit Roy) merely drafts the Will based on the testator’s instructions and does not fulfill the role of an attesting witness. The scribe’s presence is not for witnessing the testator’s signature, and therefore, the evidence provided by the scribe cannot be considered as valid testimony for the attestation of the Will. The Court concerns about the insufficiency of evidence provided by Shri Nilmohan Sarkar, who is one of the attesting witnesses to the Will. Although he was called to testify (as DW-3), his evidence lacks important details. Specifically, he fails to mention who the other attesting witnesses were, whether they were present at the time of attesting the Will, or if the attestation occurred in their absence. Moreover, he does not provide any further relevant details regarding the process of attestation. This lacuna gives rise to lack of completeness and reliability of his statement in proving the execution of Will. Besides, he showed lack of knowledge regarding date of execution, location where the Will was drafted and other key details of the attestation process. Also, he denied any involvement between Defendant No. 1 and the advocate’s clerk and categorically denied that the Will was drafted with a retrospective date which raised doubts about the validity of the Will. Also the inadequacies in the testimony of DW-1 i.e. the propounder regarding the crucial details of the Will i.e. failure in providing the information of the attesting witnesses, details of the process of attestation, created doubt about validity and existence of the Will. In his affidavit, he merely states that the Will was executed in his favor “in the presence of attesting witnesses,” without providing any details of the witnesses involved.

The propounder did not provide specific information about the witnesses’ presence during the execution of the Will despite only one attesting witness was called to testify. This creates doubt in the proper execution of the Will.

The Court found that the evidence provided by the propounder is not sufficient to prove the validity of the Will due to lack of these details.

The Court finds critical inconsistencies and concerns after evaluating the testimony of DW-2 i.e. the scribe of the Will that undermine his credibility.

In cross-examination, DW-2 admits that he was involved in a delivery of goods under contract and was not an advocate’s clerk prior to 2009. He confirmed that he did not know Smt. Kanaki Bala Ghosh personally but was involved in Will drafting. The Court highlights the rebuttals in his statement of no prior connection to an advocate’s office and unclear explanation of his acquaintance with the testator and how he was asked to draft her Will.

The Apex Court underscored that the scribe i.e. DW-2 is a stranger to the testator and no details are provided regarding their acquaintance as well as no feasible explanation was given on why he would have been chosen to draft her testament. This lack of information raises serious doubts about the validity of his role as the scribe, and the court concludes that his evidence cannot be trusted. As a result, DW-2’s testimony fails to inspire confidence and is deemed unreliable.

In the aforementioned case, Ld. Court relied upon the landmark judgment Venkatachala Iyengar vs. B.N. Thimmajamma (AIR 1959 SC 443)^[1]. This case restated the importance of attestation and proof of execution in the existence and validity of a Will. Besides, it also focuses on ensuring that the testator was fully aware of the content mentioned in the Will at the time of signing.

The Court concluded that the legal requirements of according to Section 63 of the Indian Succession Act and Section 68 of the Evidence Act were not proven in the present Will. Also the court found that execution of the Will was surrounded by suspicious circumstances which the propounder failed to explain. Hence, the Apex Court reinstated the Trial Court’s finding and disagreed with the High Court’s decision to uphold the Will. The appeal was allowed.

^[1] Venkatachala Iyengar vs. B.N. Thimmajamma, AIR 1959 SC 443.

Conclusion:

The Supreme court in Chinu Rani Ghosh v. Subhash Ghosh & Ors. (2025)^[1] again strongly stated the importance of strictness of checking the legal aspects while proving a Will, especially under Section 63 of the Indian Succession Act and Section 68 of the Evidence Act. The Hon’ble Apex Court found that the evidence put forth by the propounder and the witnesses which were attested in the Will, was not sufficient to establish the existence of the Will and failed to determine the legality of the Will with respect to the provisions mentioned. The doubts which questioned the legality of the Will were inconsistencies in the statements of key witnesses especially the scribe and absence of the important processes for attesting a Will according to the provisions. Also the process of the execution of the Will was surrounded by suspicious circumstances which were not sufficiently explained. Hence the Supreme Court held that the Will had not been legally proven, disagreeing the High Court’s ruling and restored the Trial Court’s decision. This judgment reaffirmed the vital importance of ensuring proper legal formalities and clarity in the execution as well as proof of a Will to ensure its validity.

^[1] Chinu Rani Ghosh v. Subhash Ghosh & Ors., 2025 SC 56.