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UDAY KUMAR, SOUMEN SEN
Prithiraj Prasad Saha @ Prithiraj Saha – Appellant
Versus
Rajkumar Saha – Respondent
JUDGMENT :
Soumen Sen, J.
1. The appeal is arising out of a judgment and order dated 29th September, 2007 in relation to grant of probate of one Radhika Debi, since deceased. The appellant Nos.1 and 2 are the sons and the appellant No.3 is a sister of the testatrix. The legal heirs of the said appellant No.3 are brought on record after the death of the original appellant No.3. The Will was contested by the two other sons of the testatrix, namely, Rajkumar Saha and Srikumar Saha. The learned Trial Judge refused to grant probate on the ground that the executors have failed to remove the suspicious circumstances surrounding the execution of the Will – suspicious circumstances are the mental and physical health of the testatrix and the involvement of one, Gopal Prasad Saha, the husband of one of the sisters of the testatrix as an attesting witness. The evidence shows that the testatrix was separated from her husband and she was suffering from Cancer for almost one and half year before the execution of the Will. She was unable to take food and, we presume that she has also difficulty in expressing her as it had an oncological problem. The Cancer had spread inside her mouth. Once such phys
The execution of a Will is invalid if surrounded by suspicious circumstances, including the testator's compromised mental state and discrepancies in the document.
The court upheld the validity of the Will despite the exclusion of a natural heir, finding no suspicious circumstances or evidence of mental incapacity.
The propounder of a Will must prove its execution and validity, and the presence of suspicious circumstances must be specifically pleaded by the opposing party to shift the burden of proof.
Point of Law : It has to consider relevant materials instead of adopting an ethical reasoning. It was further observed that a mere exclusion of either a brother or sister per-se would not create a su....
The validity of a will hinges on its proper execution and the capacity of the testator, not merely on subsequent claims of incapacity or vague assertions.
(1) Probate of Will – Where a Will is prepared and executed under circumstances which excite suspicion of Court it is for those who propound Will to remove such suspicion and to prove affirmatively t....
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