The burden of proof lies with the party alleging forgery or lack of mental capacity in a probate application, and compliance with the requirements of the Indian Succession Act, 1925, must be demonstrated.

1. The Court: This P.L.A. No.273 of 2014 was registered at the instance of Joydeb Paul, the sole executor of the Will and Testament dated 27th August, 2013 of the deceased Joydev Pal. One Dipanwita Pal being the widow of the testator lodged a caveat. Subsequently, G.A. being No.883 of 2015 was filed by the caveatrix for recalling of an order dated 29th January, 2015 by which the probate application was marked as non-contentious cause. By an order dated 18th March, 2015, after due consideration of the averments made in the petition filed by Dipanwita Pal, this Court held that an opportunity should be given to the caveatrix to contest the probate proceeding and, accordingly, order dated 29th January, 2015 was recalled and the applicant was directed to file affidavit in support of the caveat which she has done. The matter was taken up for hearing as a contentious cause and, consequently, this P.L.A. was re-numbered as Testamentary Suit being No.17 of 2015. The parties led evidence in support of their respective cases. Matter was heard at length on diverse dates and lastly, hearing was concluded by an order dated 16th May, 2017.

2. The propounder and executor has averred that the testator Joydev Pal, before his death, appointed the propounder as executor of his last Will dated 27th August, 2013. The original Will has been brought on record as Exhibit A. according to the petitioner, the Will dated 27th August, 2013 was written in English language and he was appointed as the sole executor of the said last Will and Testament executed by the testator Joydev Pal, since deceased. In support of execution of the said Will a declaration has been filed by Indrajit Pal, one of the attesting witnesses and an affidavit affirmed on 16th September, 2014 has been filed with the probate application. The testator died leaving behind him surviving his mother Smt. Susama pal and his widow Smt. Dipanwita Pal. Mother Susama Pal gave her consent for the grant of probate of the last Will and Testament dated 27th August, 2013 of the deceased testator but the wife of the deceased testator has not given her consent to the issue of grant of probate of the said last Will of the testator. Accordingly, the petitioner prayed for issuance and service of citation upon the said widow along with the petition. An affidavit of assets has also been affirmed on 16th September, 2014. The propounder Joydeb Paul has deposed in the box and has confirmed that as executor he has filed the application for grant of probate. The said Joydeb Paul, the executor, has been cross-examined by the learned counsel for the defendant but nothing adverse could be taken out from him.

3. One Indrajit Pal, an attesting witness, came forward before this Court and proved the execution and attestation of the said Will dated 27th August, 2013 (Exhibit A) in conformity with the requirements under Section 63 of the Indian Succession Act, 1925. Answers given by the said attesting witness Indrajit Pal to question Nos.4-9, 15, 19-28, 32, 40, 64-68, 72-81, 86 and 93 are relevant which I have taken note of for the decision of this probate proceeding. His evidence transpires that the ‘Will’ was signed by the testator as his last Will and Testament in presence of both the attesting witnesses and at the request of the testator and in his presence these attesting witnesses witnessed execution of the Will by the testator and, accordingly, they put their signature on the said last Will of the testator. The attesting witness Indrajit Pal stated in the box that the Will was executed on 27th August, 2013 and he identified the signatures appearing on the Will. He also identified those signatures to be of Joydev Pal, his maternal uncle, the testator and that of the signature of the other attesting witness Mousumi Pal, his cousin sister. He also confirmed that the testator put his signature in his presence and that is why he was aware of the signature of Joydev Pal, the testator. In particular, the answers