Thumb Impression by Literate Testator Not Suspicious if Explained by Age and Infirmity: Calcutta High Court

“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:

“The vigilance of a testamentary court cannot be converted to paranoia to such an extent that every minor gap in the evidence has to be taken as a suspicious circumstance.”

It observed that the execution of the Will had been properly proved by the attesting witness, fulfilling all ingredients of Section 63. The daughters’ story of abduction was disbelieved, as the best witness, Namita, who allegedly housed the father, never stepped into the witness box.

Even the alleged existence of another Will executed the same day did not, in the Court’s view, defeat the present Will, since both favoured the male line of the family.

The Bench concluded that the due execution of the Will was established and the probate properly granted:

“In spite of applying our mind as a ‘Court of Conscience’, we do not find any suspicious circumstance surrounding the Will. Rather, the due execution of the Will having been substantially proved on the yardstick of a prudent person, we are of the opinion that the learned Testamentary Court was perfectly within law and jurisdiction… to grant a probate.”

Accordingly, the appeal and connected applications were dismissed.

By affirming that a thumb impression, even by a literate testator, is not inherently suspicious if explained by age or physical condition, the Calcutta High Court has clarified an important principle of testamentary law. The ruling reinforces that while probate courts must exercise vigilance, they cannot indulge in “paranoia” by treating every minor omission or gap as a ground to invalidate a Will.

This judgment ensures that the true intent of a testator, once lawfully executed and proved, cannot be derailed by speculative challenges.

Date of Decision: 21 August 2025