JUDGMENT

Soumen Sen, J. - The facts of the case in brief are that the testator Bibhuti Bhushan Ghosh executed his last Will and testament on the 14th of October 1997. The Will was also registered on the said date. The testator had appointed his second son Anil Ghosh as executor. Bibhuti died on 31st of January 1998. The executor applied for grant of probate as propounder of the last Will and testament of Bibhuti and claimed that at time of execution, Bibhuti was mentally and physically alert enough to understand worldly affairs including that of disposition of properties, that attesting witnesses were present at the time of such execution who had seen the testator execute the same. However, Pranati Ghosh along with others and including Ashima Ghosh one of the daughters of Bibhuti, an attesting witness claimed that the Will was executed by someone other than Bibhuti and the signature in the alleged Will was not that of the late Bibhuti Bhushan, he was not present during execution and registration and alleged impersonification and forgery.

2. It is trite law that the burden of proof is on the propounder to prove that the Will has been voluntarily executed, that the testator has signed the Will and put his signature on his own free Will having sound disposition of mind, understanding the nature and effect thereof and that the Will is a genuine document. The onus of the propounder may be discharged if he succeeds in bringing on record sufficient cogent evidence in this regard and removing all suspicions. However, the burden of proof shifts to the caveator if a defence of undue influence, fraud or coercion is raised.

3. As held in Barry v. Butlin reported in (1838) 2 Moo PC. 480, the law is well settled that the onus probandi lies on the person who propounds the Will, and this onus is in general discharged by proof of capacity, and the fact of execution, from which the knowledge and the assent to its contents by the testator will be assumed. But where a Will is prepared and executed under circumstances which excite the suspicion of the Court it is for those who propound the Will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document as opined in Tyrrell v. Painton reported in L.R. 1894 Page 151. Where once it has been proved that a Will has been executed with due solemnities by a person of competent understanding and apparently a free agent, that is, when the propounder of the Will has discharged the onus: the burden of proving that it was executed under undue influence is on the party who alleges it as observed in Boyse v. Rossborough reported in (1857) 6 H.L.C. 2: 26 L.J. Ch. 256. It was also held that influence in order to be undue within the meaning of any rule of law which would make it sufficient to vitiate a Will must be an influence exercised either by coercion or by fraud. To the same effect is the statement in Barry (supra) which held that the undue influence and the importunity must be of the nature of fraud or duress if they are to defeat a Will. As observed in Craig v. Lamoureux L.R. , reported in (1920) A.C. 349 the burden of proving undue influence is not discharged by merely establishing that a person has the power unduly to overbear the Will of the testator. It must be shown that in the particular case the power was exercised, and that it was by means of the exercise of that power that the Will was obtained.

In RM. Ak. P. Kannammal Achi & Ors., v A.N. Narayana