Calcutta High Court
Harsh Vardhan Lodha & Ors vs Arvind Kumar Newar & Ors on 7 May, 2026
Author: Arindam Mukherjee
Bench: Arindam Mukherjee
OD-1 ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
TESTAMENTARY AND INTESTATE JURISDICTION
TS 6 of 2004
IA No. GA/9/2005 (Old No. GA/3566/2005) IA NO. GA/15/2013(OLD
NO. GA 3165/2013), GA/16/2014( OLD NO. GA/3278/2014),
GA/19/2015(OLD NO. GA/3332/2015), GA/20/2015 (OLD NO.
GA/3619/2015), GA/22/2016( OLD NO. GA/144/2016), GA/ 28/2016
(OLD NO. GA/1473/2016), GA/31/2018 (OLD NO.GA/1322/2018),
GA/47/2019( OLD NO. GA/2007/2019), GA/50/2019 (OLD
NO.GA/2376/2019), GA/53/2019(OLD NO.GA/2450/2019),
GA/56/2019 (OLD NO. GA/2747/2019), GA/59/2020 (OLD
NO.GA/93/2020), GA/61/2020 (OLD NO. GA/267/2020), GA/63/2020
(OLD NO. GA/793/2020), GA/64/2020 (OLD NO.GA/794/2020),
GA/76/2020 (OLD NO. GA/1236/2020), GA/79/2021, GA/84/2025
IN THE GOODS OF :
PRIYAMVADA DEVI BIRLA, DECEASED
AND
HARSH VARDHAN LODHA & ORS.
VS.
ARVIND KUMAR NEWAR & ORS.
BEFORE:
The Hon'ble JUSTICE ARINDAM MUKHERJEE
Date: 7th May, 2026.
APPEARANCE:
Mr. Anindya Kumar Mitra, Sr. Adv., Mr. Abhrajit Mitra, Sr. Adv. Mr. Dhruba Ghosh, Sr. Adv., Mr. Debanjan Mandal, Adv., Mr. Sanjiv Kr. Trivedi, Adv., Mr. Sarvapriya Mukherjee, Adv. Mr. Soumya Roy Chowdhury, Adv. Mr. Sanket Sarawgi, Adv.,Ms. Mahima Cholera,Adv. Mr. Deepan Sarkar, Adv., Mr. Altamas Alim, Adv., Mr. Samriddha Sen, Adv., Ms. Deepti Priya, Adv.
for the plaintiffs.
Mr. S. N. Mookherjee, Sr. Advocate, Ms. Vineeta Meharia, Sr. Adv., Mr. Naman Choudhury, Adv., Mr. Subhrojyoti Mookherji, Adv.,Mr. Shounak Mitra, Adv., Ms. Vaibhavi Pandey, Adv., Mr. Saptarshi Mandal, Adv.
for defendant nos.1(b) & 1(c).
Mr. Surojit Nath Mitra, Sr. Adv., Mr. Anuj Singh, Adv.
for defendant no.1(d) Mr. Ratnanko Banerji, Sr. Adv., Mr. Soumabho Ghose, Adv. Mr. Saptarshi Mandal, Adv.
For the defendant no.3(a).2
The Court : The above testamentary suit was directed to appear today for fixing a date for further witness action. In the suit the plaintiffs' first witness (PW-1) being the propounder has been examined in chief and cross-examined which stood concluded on 10 th April, 2026. It is for the plaintiffs to bring their second witness.
On behalf of the plaintiffs it is submitted that they will bring witness/witnesses who will not depose in respect of the Will but will be restricted to the testamentary capacity of the testatrix and to dispel the suspicious circumstances, if any, encircling the subject Will as raised by the defendants. According to the plaintiffs, these witnesses are required to be examined since the defendants have raised questions about the testamentary capacity of the testatrix and that the execution of the Will is surrounded with suspicious circumstances for which issues have been framed.
On behalf of the defendant no.1(d) the prayer for bringing witnesses to prove the testamentary capacity of the testatrix or to dispel the suspicious circumstances is objected to. On behalf of the said defendant a judgment and order dated 18th July, 2019 passed by a Co- ordinate Bench in this suit is placed before the Court to contend that the attesting witness is required to be brought to the witness box before any other witness as said to be held in the said judgment. It is submitted by the defendant no.1(d) that the plaintiffs should first make an endevour to prove the Will which is ordinarily done through an attesting witness, if 3 available. One of the three attesting witnesses is still available since the other two have already passed away. Unless the Will is brought on record by proving the same through an attesting witness, the Court is not required to consider the genuineness of the Will, the testamentary capacity of the testatrix and to see whether the suspicious circumstances surrounding the execution of the Will has been disposed of. It is further submitted on behalf of the said defendant that there are three alleged attesting witnesses to the Will in question. Two of the attesting witnesses are no more. Only one attesting witness is present. It is, therefore, necessary to bring the said attesting witness to the witness box at the first instance after completion of the evidence of the propounder and prove the Will in question. The witness/witnesses intended to be brought in next by the plaintiffs should be brought only after the Will is brought on record for being proved through the only surviving attesting witness. The plaintiffs therefore, according to the said defendant, should next examine the attesting witness instead of any other witness/witnesses.
On behalf of the defendant nos.1(b) and 1(c) after adopting the submissions made on behalf of the defendant no.1(d) it is further submitted by relying upon the judgments reported in AIR 2015 (NOC) 545 (Bom.) [Walter DSouza Vs. Miss Anita DSouza and Ors.], 2021 SCC OnLine Del 4753 [Naveen Chander Kapur Vs. State and Others] and a Single Bench judgment of the Bombay High Court passed on 14 th November, 2014 in Testamentary Suit No.82 of 2013 in Testamentary Petition No.99 of 2013 [Anil Dattatray Parab & Ors. 4
Vs. Jayadev Bal Thackeray) that the plaintiff is mandated to bring the attesting witness since the evidence of the propounder has stood concluded.
The plaintiffs, in reply, submit that on a plain reading of the judgment and order dated 18th July, 2019 as a whole it will be clear that the restriction, if any, is on the examination of any witness in connection with the Will in question prior to the attesting witness is brought to the witness box and this exercise is to take place after completion of the witness of the propounder. There is, according to the plaintiffs, no embargo to bring any witness who is not connected with the Will before the attesting witness. Thus, the plaintiffs are entitled to examine other witnesses who are not connected with the Will prior to the evidence of the attesting witness. The plaintiffs cite a judgment delivered by a Co- ordinate Bench in C.O. 1690 of 2023 [Dr. Ruma Bhattacharya Vs. Mrs. Sumita Banerjee & Ors.] to contend that there is no hard and fast rule that the attesting witness has to be examined first before any other witness/witnesses. In this context, the plaintiffs refer to paragraph 14 of the said judgment. In fact, the learned Single Judge after taking note of the arguments advanced by the parties and the judgments cited at the Bar along with the materials available on record had passed the judgment and order dated 18th July, 2019. This judgment clearly holds that no witness who is to depose in connection with the Will should be brought ahead of the attesting witness. The defendants cannot according to the plaintiffs dictate the order and manner in which the plaintiffs will 5 lead evidence to prove their case. The defendants in such case are required to take and a specific application for such purpose.
The learned counsel appearing on behalf of the defendant No.1(d), in order to distinguish the judgment in Dr. Ruma Bhattacharya (supra) to be not applicable to the instant case refers to the facts of the instant case, and those recorded in paragraph-2 of the said judgment and submit that the order under challenge in the said revisional application was an order rejecting an application filed by the plaintiff being the propounder of the Will in that case to allow him to appear as a witness at a later stage and for further direction. In this background in paragraph- 14 of the said judgment it has been held that there is no explicit or implied mandate for the attesting witness to appear and depose first in order of time even before the propounder to prove the execution of the Will. In the instant case the propounder has been examined and cross- examined so it is now the turn of the attesting witness to come to the witness box before any other witness. There is also no necessity of making an application to settle the order of witnesses.
After hearing the respective counsel appearing on behalf of the parties, I find that in the instant case an application for grant of probate had been converted into a testamentary suit as far as in the year 2004. Without going into the delay in holding the trial of the testamentary suit, I find that two of the attesting witnesses have already died. The only surviving attesting witness is there to prove the Will. Twenty two years have passed and, as such, it will be an extremely risky proposal to bring 6 other witnesses for being examined be he or she not connected with the Will before the only surviving attesting witness. It is clear from the judgments cited at the Bar and those considered while passing the judgment and order dated 18th July, 2019 that a testamentary suit is not a suit per se as provided under Section 26 of the Code of Civil Procedure, 1908 (in short CPC) but is required to be heard like a suit. In a testamentary suit, since the primary document is the Will be it one for grant of probate or for grant of Letters of Administration with Will annexed thereto, ordinarily the attesting witness is required to be examined first though a party has to appear first as envisaged in Order 18 Rule 3A of CPC. However, there is no hard and fast rule to bring the attesting witness always before the propounder. It is also open to the plaintiff to bring the propounder before the attesting witnesses as the plaintiff has a choice as to which witness he will bring first. In the instant case, the propounder has been examined and cross-examined. Examining and cross-examining any other witness other than the attesting witness prior to the attesting witness due to passage of time may lead to an uncertain situation. It is correct as submitted by the plaintiff, it is the choice of the plaintiff to decide on the order of the witnesses to be examined to prove his case but a testamentary suit where the valid execution of a Will, the testamentary capacity of the testator/testatrix, genuineness of the Will, whether the execution of the Will is surrounded by suspicious circumstances etc., the Will is generally proved at the first instance by the attesting witness since a testamentary 7 suit stands in a different footing than any other suit. In a testamentary suit, it is true that a Will can be proved if the attesting witness/witnesses are not available by following the provisions as laid down under The Indian Succession Act, 1925. There are definitely other mechanism to prove the Will in absence of the attesting witness but one should not take a chance when only one of the three the attesting witnesses are available as in the instant case.
Although, the plaintiffs say that no witness connected with the Will shall be examined before examining the attesting witness but this submission also has certain loopholes. Assuming without admitting a witness to demonstrate the mental health/testamentary capacity of the testatrix is brought to the box and know direct question is put to the witness in examination-in-chief but in the cross-examination, the defendants may have to put questions on the Will or have to show the Will then the matter does not remain confirmed to the state of examining a witness not connected with the Will. This situation may lead to give rise to an issue as to whose document the Will in question has to be marked as exhibit if the defendants confront such a witness with the Will. It is, therefore, in the interest of justice that the attesting witness be brought to the witness box as the plaintiffs' next witness before any other witnesses.
In the aforesaid facts and circumstances, I direct the plaintiff to bring the surviving attesting witness to the box on the next date for being examined and cross-examined.
8
Let the suit appear in the list on 25 th June, 2026.
The plaint in this testamentary suit which was retained for the purpose of dictating the judgment and order is directed to be returned to the Learned Registrar, Original Side of this Court for being kept in safe custody to be produced along with all other documents before this Court on the returnable date.
(ARINDAM MUKHERJEE, J.) Pa/sb.