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PATNA HIGH COURT
B.D.Singh, J.
Harihar Prasad Sao
Versus
Bhagwan Das
Appeal From Appellate Decree No. 69 of 1965 ;
Decided On : NOVEMBER 11, 1970
INDIAN SUCCESSION ACT, 1922 - SECTION 276 - PROBATE - WILL - GENUINENESS AND VALIDITY - SUSPICIOUS CIRCUMSTANCES - ONUS OF PROOF - UNDUE INFLUENCE - SHIFTING OF BURDEN OF PROOF.
Fact of the Case:
Mukhlal Sao executed a will on 28th July, 1956, bequeathing his entire property to the appellant, Harihar Prasad Sao. After Mukhlal's death on 24th October, 1956, Harihar filed an application for grant of probate under Section 276 of the Indian Succession Act, 1922. The application was contested by Baijnath Sao (respondent No. 4), Mukhlal's nati (daughter's son), who claimed to be the nearest and sole heir of Mukhlal under the existing law. Baijnath alleged that the will was not genuine, that it was improperly procured by Harihar, and that Mukhlal did not execute the will of his own free will but due to undue influence, fraud, and coercion exercised by Harihar.
Finding of the Court:
The Judicial Commissioner of Chotanagpur, Ranchi, dismissed Harihar's application, holding that the will was not genuine and was improperly procured by Harihar. The Judicial Commissioner found that the will did not contain all the immovable properties of the testator and that Mukhlal was completely under the control of Harihar at the time of the execution of the will.
Issues: 1. Whether the will is genuine and duly executed by Mukhlal out of his own free will and volition. 2. Whether the appellant is entitled to the grant of letters of administration with the will annexed.
Ratio Decidendi: 1. The onus of proving the due execution and attestation of the will lies on the propounder of the will. 2. If there are suspicious circumstances surrounding the execution of the will, the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. 3. Once due execution and attestation is established by the propounder, the onus to prove that the Will was executed under undue influence shifts on the person who alleges undue influence. 4. The mere presence of suspicious circumstances does not necessarily invalidate the will, if the propounder is able to dispel those circumstances and establish the genuineness and validity of the will. 5. The fact that the testator was old and infirm at the time of the execution of the will does not, by itself, invalidate the will, if the testator was of sound mind and possessed of disposing ability.
Final Decision: The judgment and decree of the Judicial Commissioner are set aside, and the appeal is allowed with costs. Letters of administration with the will annexed are granted to Harihar Prasad Sao, the appellant.
B.D.Singh, J.
1. This appeal & directed against the judgment and decree passed by the Judicial Commissioner of Chotanagpur, Ranchi, refusing to grant probate to the appellant, on his application dated the 31st July. 1963, under Sec.276 of the Indian Succession Act, 1922 in respect of the will executed on the 28th July, 1956, by Mukhlal Sao, one of the sons of Fulchand Sao, in favour of the appellant.
2. In order to appreciate the point which has been urged on behalf of the contesting respondent (respondent No. 4), it will be convenient to note below the genealogical table of the family of the appellant and the respondent: (See genealogical table on next page) According to the appellant, Mukhlal Sao, after duly executing the said will, died on the 24th October, 1956, at his residence at Upper Bazar. Ranchi, leaving behind respondents Nos. 1. 2, 3, 4 and 5 as his other near relations, and in the said will, Mukhlal had bequeathed his entire property in favour of the appellant. On behalf of Baijnath Sao (respondent No. 4) who is the main contestant caveat and written statement against the grant of probate of the will were filed in the Court below. It was stated, inter alia, therein that Mukhlal had not executed the will; due to old age and illness it was not possible for him to execute any will nor he had any disposing mind. On the alleged date of execution of the will. Mukhlal was completely in the clutches of the appellant. Even if the will was executed by Mukhlal, he did not execute the same of his own free-will but due to undue influence, fraud and coercion exercised by the appellant. It was further stated therein that respondent No. 4 was the nearest and the sole heir of Mukhlal being his nati (daughters son) and was entitled to succeed to all the properties left by Mukhlal Sao, under the existing law.
FULCHAMD SAO
________________________________|______________________________
| | | |
Kariman Sao Punai Sao Sibrat Sao MukhUl Sao Bamla Sao
| | | |
| | | W.
Guru Pd. Sao Maribar Pd Sao | (Testator)
| (Applicant | |
| Appellant.) | Daughter
| |
____|______________________ (Mt.Biranchi
| | | |
Lakahman Sao Bhagwan Das | Baijnath Sao
=Lakshmi Devi D 1-R 1 | (D4-R4)
D 5-R 5 |
|
____________________________________
| |
Ramdas Sao Ramlata Sao
|
Sachchita Pd-Sao Kameshwar Pd.
(D2-R2) (D 3 R 3)
Sachchita (respondent No, 2) and Kameshwar (Respondent No. 3) also filed a written objection, objecting to the grant of probate to the appellant. They also stated therein, mainly, that Mukhlal never , executed any will nor was there any occasion to execute the same, Mukhlal was mostly living with the objectors and their father in village Khuduwan in the district of Gava. Mukhlal was happy with the objectors; Punai Sao was the Karta of the joint family and after his death his son Harihar (appellant) looked after the family affairs as Karta of the joint family. Mukhlal was an old man and was always suffering from ailments of old age. Therefore, the appellant might have procured the alleged will by fraud, misrepresentation and deceit in
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